, Duncan

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The Skill of Learning: Implications of the ACLEC First Report for Teaching Skills on Undergraduate Law Courses

Nigel Duncan

LL.B., Grad.I.P.D., P.G.C.E., LL.M..
Principal Lecturer,
Inns of Court School of Law
4, Gray's Inn Place,
London WC1R 5DX
<[email protected]>

Copyright © 1997 Nigel Duncan.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The ACLEC First Report identifies skill development amongst its recommendations for the initial stage of legal education while distinguishing between what is needed at this and the vocational stage. Currently, where skills are incorporated into degree courses this is done for different motives. Some make a serious effort to use skills to develop understanding and the quality of learning. Others simply introduce the DRAIN skills which are central to the vocational stage. This article suggests that this is an insufficient objective for an undergraduate degree and proposes ways of identifying what can be achieved with skill development, both in terms of enhancing the quality of learning on law degree courses and of establishing a firm foundation for life-long learning. It suggests using problem-solving methods to integrate the development of skills with that of knowledge and understanding and applies specific theories of learning to inform curriculum design.

ACLEC's proposals

It is increasingly widely recognised that there is a role for skills development in the undergraduate curriculum. The ACLEC Report confirms that view and gives us some guidance as to what skills might be addressed at that stage and how the learning of those chosen skills might be approached. The Report itself is centrally concerned with education for the legal profession, understandable given the remit of the Committee. However, they have refused to perceive the initial stage as purely concerned with preparation for the profession, but have presented their report as the rebirth of the liberal law degree (Hepple 1996). This is to be welcomed, particularly the perspective offered that maintaining those liberal educational objectives is desirable, not only to ensure that students receive a proper education, but also that this is the soundest preparation for the demands of a profession operating in a rapidly changing world.

To look specifically at the Report's recommendations, a series of skills are identified:

This needs to be placed in the context of the recommendation, under the heading `Intellectual rigour' that:

In order to clarify what was meant by the aims of legal education the Report refers to `intellectual integrity and independence of mind'(ACLEC 1996, para 4.4, italics in the original) and proceeds to quote Dawn Oliver's statement that:

Thus, ACLEC is recommending that we adopt new and more active learning methods which will integrate the development of knowledge, understanding and skills. The object is to improve the educational experience of our undergraduate students so that they are not only well-prepared for the vocational stage which will follow for many of them, but also that they have a sound humane liberal education in law which will be of value in itself and will establish the basis for lifelong learning in whatever field the individual chooses ultimately to enter.

This, indeed, is the challenge that faces us now. How can we devise skills courses which:

The Current Situation

We do not, of course, start from scratch. Skills development plays a part in many of the law degrees currently on offer in British universities. Phil Harris and Martin Jones's study (Harris and Jones 1997 at p 49) indicates that while there is widespread agreement that skills such as library research, legal reasoning and case analysis should form part of the undergraduate law degree, the position is far less clear in relation to the specifically vocational skills. Some 57% of universities incorporate these into their undergraduate courses. This overall figure hides a significant distinction between the old and new university sectors. 34% of the former as compared with 79% of the latter incorporate such courses. This may be because of the supposedly greater vocational orientation in many of the new universities. At any rate it begs the question of the motive for introducing these elements to degree courses. The thrust of my argument is that it is inappropriate to do so simply to give students a running start at vocational courses. If this is the only objective we will not meet the requirements listed above.

Indeed, a number of commentators have expressed objections to skills teaching on undergraduate degrees and their concerns seem to be rooted in the risks of a narrow approach. Stuart Toddington criticises a narrow managerialism which tends to produce instrumental curricula designed to prepare students uncritically for the vocational courses and legal practice (Toddington 1995). Anthony Bradney's concern, although related, has a different focus. He argues that the purpose of the university is knowledge in its own right and that to concern oneself with being useful is to subvert that purpose (Bradney 1992, 1995). Insofar as these arguments criticise a narrow approach to skills development whose primary motivation is vocational I would agree. However, in raising a general objection to skills teaching I suspect that they cast the baby out with the bath-water. The analysis seems to imply mutual exclusivity between acquiring knowledge and learning how to use it. I would argue that skills courses which meet the four goals above provide a medium for developing critical insight into the legal system and the work of those operating within it, for locating the study of substantive law in the most important context of all and developing mere knowledge into real understanding. Bradney seeks `a high level of intellectual excitement' (Bradney 1995 p17). In my experience it is by discovering how the law they have learnt works in practice and using that experience to reflect back upon what they have learnt that students experience the most intense intellectual excitement of all.⁽¹⁾ How then might we work towards these goals?

Problem-based learning

My first suggestion is that we adopt some of the characteristics of problem-based learning as a significant element of our curriculum (see Cruickshank 1996 and Tzannes 1997). I do not necessarily advocate the adoption of problem-based learning as the method, as is done at Maastricht University (Moust & Nuy 1987; Moust 1998). However, I do suggest that we should make problems a major source of our students' learning. By problems, I do not mean the hypotheticals with which we regularly test our students' understanding of the law they are learning. We need to develop our approach in at least three ways.

Slippery facts

Although it may be true that facts are inherently ambiguous, the way we often present them to our students tends to obscure this. Hypotheticals typically present facts as given and devoid of doubt. Even the probability of simple denial by an opponent is rarely canvassed, probably because the object is the application of legal rules to those facts. I have no objection to this. It is desirable that students acquire some confidence in handling rules in situations when they can concentrate on the rule rather than ambiguity in the fact-pattern. However, to provide for no progress from this position is to risk a narrow and unrealistic view of how rules work in a factually-ambiguous world and thus a failure to understand the law in its context.

To overcome this difficulty, we need to develop problems where the facts are slippery (containing conflict and ambiguity), not given. This is a characteristic of many of the tasks students tackle on the vocational courses. Introducing such an approach into undergraduate degrees will help to overcome the criticism that they may be divorced from the experience of practice:

However, the object on the undergraduate degree is not simply to prepare students for vocational studies and subsequent practice. In part, the object is to make real the context in which the law operates. The traditional approach whereby we seek to understand the law by studying (largely appellate) judgments leaves students with an unrealistic view of what the law can do and how it works. Avrom Sherr, pointing out that law is not a set of naturally-existing phenomena, but is made by people, argues that study of it:

Effective study of the work of the law requires some degree of realism. This can be provided by including conflicting accounts of relevant events or by setting up role-play situations where students, individually or in groups, act in an adversarial manner or take on the roles of lawyer and client. An example of both is provided in the `Law in Practice' option at Warwick University (Burridge 1998). Students are required to role-play a university disciplinary hearing involving allegations of theft. Students playing witnesses see slightly different videos of the event. They therefore give contradictory accounts in the belief that they are telling the truth. This produces the variation in evidence which commonly arises in practice through failures of memory, different vantage points etc.. The adversarial nature of the activity provides further scope to expore the ambiguity of the `facts'. Participants are immediately required to exercise analytical and critical skills as the task requires them to descend into Donald Schön's swamp (Schön 1987). This concept draws a distinction between the `high ground' typically occupied by the ivory tower academic, where a process of rational thought can lead us to conclusions in which we believe we can be confident and the `swamp': real life, where experiences are characterised by uncertainty and value-conflict. This is where the scope for effective skill development is at its greatest. Students' engagement in the experience also gives an opportunity to explore ethical issues (another desideratum of the ACLEC Report) in a far more realistic way than their discussion in the abstract or in neat hypotheticals (see Webb 1996).

Legally non-specific problems

Secondly, students must be presented with problems outside the context of neatly-organised law. They must grapple with problems as if presented by a client, which will require them, through a process of analysis and matching, to identify the sources of law which can help them. For example, a problem based on a road accident can raise principles of negligence, insurance law, road traffic offences, evidence and both civil and criminal procedure. Such a task will develop legal research skills which go far beyond the narrow library exercises which we tend to use to introduce students to primary and secondary sources. As David Cruickshank has identified, if we do not require this extra step we are not asking students to solve problems, but merely to carry out exercises (Cruickshank (1996) p 192-4). ACLEC themselves make the point with considerable force:

It is apparent from their argument that in order to develop legal research, universities must do more than move away from an over-reliance on reading lists and hand-outs, but go further to ensure that students approach their legal research with realistic problems, not academic exercises (Clinch 1994). ACLEC's concern is for `intending lawyers'. I would go one step further. This approach is desirable at the initial stage not (as would be the case at the vocational stage) to begin to develop students' client-handling skills, but to help students to understand the real context of the law which they are learning.

Student activity

Thirdly, active engagement is essential if ACLEC's desire to develop active learning and to ensure the integration of skills with substantive learning is to be realised. Students must present their conclusions in a variety of ways and contexts, orally and in writing, which will develop communication skills. They need to practise their skills and get experience, rather than just talking or writing about them. There are arguments for carrying out such activities within conventional subjects or in specially-dedicated modules. Either can work. You will probably recognise that here I am suggesting the introduction of clinical methods, either through simulations or through working with real clients. These are the most effective ways of making learning active and integrating skills and knowledge to produce understanding.

Developing our approach towards undergraduate courses in these three ways will provide a realistic basis for the integration of knowledge, understanding and skills. However it is necessary also to examine the characteristics of the skills which are appropriate to the undergraduate stage of legal education.

Transferable skills

We (and ACLEC) talk of transferable skills. What does this mean? Does it simply mean those skills which can be presented at such a basic level and in such a general way that they appear to be relevant to any future activity of the learner? Is it those skills which are inherently relevant in a variety of contexts? (or could that be all of them?). One suspects sometimes that all it means in practice is any skill which falls outside the context of legal practice!
Work has recently been done in this area by a team led by John Bell of the University of Leeds (Bell 1996). They have studied how general transferable skills impact upon the law curriculum. Their study contrasts the six core transferable skills they identify as appropriate to legal study with those developed by a multi-disciplinary group addressing the concept of `graduateness'.

There is clearly considerable overlap between these lists and to some extent the differences are degrees of particularity and methods of organisation rather than fundamental differences. In fact, they are saying much the same. As John Bell usefully comments:

"[m]any of these ideas are really about the process of learning, providing thus a bridge between the idea of education as personal development (which is properly different for different people) and subject-content development (which is more properly common to a cohort in terms of achievements required)." (Bell 1996 p 14).

This suggests that a study of the process of learning will be helpful not only in identifying the skills we should address in our LL.B. courses, but also in establishing the nature of the methods of active learning which ACLEC suggests we adopt.

Another insight which helps us with the concept of transferable skills and how to use them within an undergraduate learning programme is the recognition that different skills may interact in a mutually supportive way.

This helps not only to understand what transferable skills might be and how they relate to context-specific skills, but also provides a foundation for the design of programmes which will facilitate mutually-supportive skill development. How, though, do we apply our understanding of learning processes and our recognition of the holistic development of a variety of skills?

Learning styles, experience and reflection

It is clear that different individuals respond most effectively to different approaches to learning. We may tend to be Accommodators, Divergers, Assimilators or Convergers, with degrees of combination of each.⁽²⁾ Accommodators tend to favour a `hands-on approach; divergers tend towards contemplation and the gathering of a wide range of ideas and information; assimilators tend to prefer abstract ideas and theories; and convergers problem solving and decision-making. This is not to say that different styles of learner operate in entirely different ways. David Kolb's work (Kolb 1984) on how people learn has led him to develop the concept of a learning cycle, which suggests that learning takes place through a repeated cycle of experience, reflection on that experience, proposing theories as a result of that reflection and planning to test those theories.

This leads to a further cycle in which behaviour has been modified by the experience and the reflection upon it. Those with different learning styles may embark on the process of learning in different ways and give differing weight to the different stages of the cycle, but for learning to be effective and continuing the different aspects of the cycle need to be covered. Thus experience is an essential part of the learning process and to provide experience we must provide a context.

The work of cognitive scientists suggests that all learning is highly context-dependent (Blasi 1995, p 387 - see particularly n 213). If this is so, the extent of genuine transferability must be questionable. Experience outside any context is devoid of meaning, so context must be provided, but that context appears to be inherently limiting. There is some suggestion from the current work on analogical transfer that introducing learners to some theory which highlights similarities across contexts can assist transferability (Blasi 1996). This raises questions as to the extent to which it is appropriate to introduce students to theories of learning which explain and underpin our work with them. Recent work at the University of the West of England suggests that if introduced appropriately, this might be helpful (Maughan & Webb 1996, pp 275-282). By this it is suggested that instead of introducing learning theories by telling students about them, the learning cycle itself is exploited and students acquire their learning through experience of `swampy' role-play exercises placed in the context of express learning objectives which address students' taking responsibility for their own experiential learning. Thus the opportunities for reflection and theory-developing are undertaken with the objective of learning about learning.

Experience by itself does not produce competence. Avrom Sherr's research suggests that experience increases lawyers' confidence, but not necessarily their competence (Sherr 1996). We are all familiar with those who, in spite of 20 years' experience, seem to have repeated the same experience 20 times without apparently learning from it (see Blasi 1995 at p 323). If this is widespread we need to return to basic educational theory to explore how to ensure that experience is useful to learners. Kolb's learning cycle, which identifies the repeated stages of experience, reflection, conceptualisation and experiment before returning to experience, again provides us with further help here. It suggests that we should build into our activities opportunities for reflection. Schön develops this idea in the field of educating professionals (Schön 1987), and Maughan and Webb have provided examples in the specific context of legal education (Maughan & Webb 1995, esp ch 2 and Webb & Maughan 1996, esp ch 2, 3 and 9). Work both criticising and developing Schön has been produced by Michael Eraut (Eraut 1994) and Ronald Barnett (Barnett 1994). Phil Jones has provided a critical overview of their arguments from the specific perspective of legal education (Jones 1996). There is a wealth of ideas here for us to consider applying to our own courses.

To prescribe reflection is all very well, but we also need to consider reflection about what? At the undergraduate stage this should surely include reflection on the legal system and its socio-economic and political contexts, reflection upon the law itself and reflection upon the skills the development of which students are engaged in. The balance between these will shift as the individual moves on to the vocational stage (Duncan 1996) and the concern when reflecting upon the law may shift increasingly from the substantive to the procedural. However, all three should continue to be relevant. It would be regrettable if the vocational stage missed opportunities to reflect critically on the law and the way it might work (see Hunter 1996). Such reflection will provide the basis for a more effective continuum between the academic and vocational stages. In designing exercises, whether on undergraduate or vocational courses, we need to identify in respect of each task we set, the main foci for students' reflection.

Conclusion

The prescription so far includes using problems which are as realistic as possible, in a variety of contexts, getting students to engage actively with the problems in the light of the theoretical basis of the course they are undertaking, and with methods built in to encourage reflection upon their own learning as well as upon the subject-matter of their learning. This requires clinical methods (role-played simulations or work with real clients if it is possible) to form a significant part of the learning experience.⁽³⁾

I am not proposing that all learning in law should take this form. Indeed, diversity in learning approaches and methods is positively desirable (see LeBrun & Johnstone 1994). However, where skills learning is to be integrated into other subjects it is not sufficient for everyone to assume that a colleague will undertake the task. Co-ordination across the degree is essential so that the student experience is planned and progressive. This requires a degree of central planning which may sit uneasily with some academics' notions of academic freedom.

I have carefully avoided arguing that my proposals should replace traditional or indeed any other approach to learning. It might, however, be objected that in a crowded curriculum this is disingenuous. There is no room to slot in something new. My response can only be to agree. There will always be tension between teachers in a university about learning methods and what should be learnt, and this is quite proper. In arguing for an introduction of the methods I advocate I would simply make two observations. The first is that we have been tyrannised by the need for coverage of knowledge which, particularly in our domain, dates frighteningly quickly. Deeper understanding of less will provide a more satisfying educational experience. We will, of course, argue about what knowledge may be dropped, but that debate is already in existence. The second is that the methods I advocate are not separate from developing understanding, but are one of the means of achieving it. That is implicit in the first of my four challenges.
Which brings me back to the four challenges I identified. I have only expressly addressed the first and last. The other two, however, will follow. If we can start with a progressive programme of self-conscious skill development we will equip our students with the ability to take responsibility for their learning so as to become life-long learners. This will be true regardless of what route they subsequently take. For those who choose to go into practice it will give them a sure foundation for the vocational courses and the ability to exploit the learning opportunities there to the full. It will also enable them to make effective use of training contracts and pupillage, and to use opportunities for (and requirements of) continuing professional development wisely.

This will, I believe, go a long way to meeting ACLEC's objectives for the initial stage of legal education. I have concentrated on the arguments which relate to ensuring that skills are integrated into the curriculum, not bolted on and which relate to skills being used as the foundation for more effective learning both during the degree course and thereafter. ACLEC recognises that an approach to skills on an undergraduate course which merely addresses the DRAIN skills⁽⁴⁾ as a precursor to their fuller acquisition on vocational courses is quite inadequate. Other matters will have to be addressed, such as how to decide which skills are appropriate to the initial as opposed to the vocational stage (see Bell 1996, at p 10); how to draw students' attention to the similarities between different areas of study or activity in order to encourage the transferability of their developing skills; how to ensure that the experience of problem-based work feeds back into a critical approach to what is learned elsewhere on the degree course (see Lundy 1995) and how to devise assessment methods which will be congruent with our newly-developed learning objectives.

To develop the most effective answers to these questions we must recognise the need to apply Kolb's learning cycle to ourselves. We have a tentative theoretical basis on which to design new integrated skills courses. We must go through the experience of implementing them and reflecting on that experience, much as we expect our students to. We and our students should benefit from the diversity of approaches we come up with.

Different skills can be mutually supportive (acting, as John Bell suggests, as overlays to each other) and can enhance, rather than replace the development of knowledge and understanding. If we recognise this and can devise strategies which will use this facility to develop students' responsibility for their own learning we will have achieved something significant.

Bibliography

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Toddington, S (1995) The Emperor's New Skills: The Academy, The Profession and the Idea of Legal Education (University of Hull).

Tzannes, M (1997) `Problem-Based Learning in Legal Education, Intentionally Overlooked, or Merely Misunderstood' 31 Law Teacher p 180.

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^1. A book shortly to be published by Blackstone contains many examples of students' responses to the sort of clinical experience advocated here, see Brayne, Duncan & Grimes 1998. Back to text.

^2. This is based on the psychological analysis of Kolb. For an accessible presentation of the concepts with application to learning the law see LeBrun and Johnstone, 1994, at pp 77-80. Back to text.

^3. For recent developments in clinical legal education, see the five articles in (1996) 30 The Law Teacher pp 253-353. Back to text.

^4. Drafting, Research, Advocacy, Interviewing and Negotiation, the skills initially prescribed by the Law Society for LPCs. Back to text.

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