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Each time we start with a new group of students, law clinic teachers have to face the problem of what to do with them before they actually interact with a client for the first time. This is the problem of how to get into the water - do we jump in first and show them it is not that cold (who believes the words - "it's not that cold, really"?), do we jump in with them and share the experience or do we stand on the edge and shove them in? Each approach has its advantages and adherents.
In this clip, two of my colleagues, Mike Martin and Marcella Silverman, talk about two different ways of preparing students for that first client interaction. Mike's clip offers the more orthodox approach, planning and simulation followed by student performance and reflection (by the way, I am rereading Donald Schon's The Reflective Practitioner - it is a great book and really quite radical - I had either forgotten or never realized, that he, along with William Simon, was an early exponent of the far out idea that expertise involves intuition or some other faculty that cannot be reduced to formal, deductive logic).
As I read the clinical literature, Mike captures the classic approach, urged by the many persuasive advocates of maximizing student responsibility and autonomy. I contrast the orthodox approach with the much used, and sometimes explicitly defended, school of modeling and progressive responsibility. Marcella's description captures that approach perfectly, as she describes modeling a first interview, sharing a second interview and then turning over the third interview to the student.
The debate over these two approaches sometimes has somewhat of an inside baseball feel to it - often the difference between the two approaches is very subtle and the theoretical justifications for each school of thought have their pluses and minuses and are untested and likely untestable. The classic approach highlights the value of students taking ownership of their cases and developing their own lawyering styles.
There is some truth in the notion that what we learn from others we may forget, but what we teach ourselves we have forever. Advocates of modeling and progressive responsibility observe that many students simply have no idea how to go about interviewing a client and many people learn a skill much more powerfully by example than they do from theory.
They also note that our fear that students will be so impressed by what we do that they will just imitate us and never develop their own style is simply self-aggrandizing and does not capture the complex reality of developing expertise. It takes fair skill for a non-expert to imitate an expert and that can be a useful way station on the way to one's own expert performance.
When I started teaching, I talked like a classic student autonomy clinician, but acted a lot more like a modeler.Then I began to defend modeling and saw myself as a little heterodox (it was a thrilling feeling in my little world). These days I am back to talking like a classic autonomy clinician and more often acting like one, with a healthy dollop of modeling, as the situation warrants. Some settings and tasks are very challenging or require very particular technical skills. Those occasions often call for modeling. Often, however, I can prepare my students as Mike suggests and let them go in and have their first time at some lawyering task without me, followed by reflection and conversation. Not every situation permits it, but when I can shove the students into that ice cold water and then go have a cool drink and await their return, I think I have done a good day's work.
-- Ian
Weinstein
Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student
