What Do Students Do in Clinics?

May 17th, 2017 / By Deborah J. Merritt

Douglas Kahn has posted an article criticizing the “proliferation of clinical and other experiential courses” in legal education. These courses, he argues, reduce the number of “doctrinal” courses that students take, leaving them “ill-prepared to practice law as soon after graduation as law firms would like.” The TaxProf Blog posted a summary of the article, and a baker’s dozen of readers have offered pro and con comments.

It’s an old debate, one that has bristled for more than 50 years. The discussion doesn’t surprise me, but Professor Kahn’s ignorance of clinical education does. His bold assertions about clinics reveal little familiarity with the actual operation of those courses. Let’s examine some of Kahn’s claims.

“[S]kills in legal reasoning, analysis, and statutory construction are best learned in doctrinal courses . . . .”

Why does Professor Kahn believe this? Decades of research on cognitive science show that students learn critical thinking skills (like “legal reasoning, analysis, and statutory construction”) through explicit instruction, hands-on practice, written exercises, and individualized feedback. Doctrinal courses offer surprisingly little of that work. Most of those courses allow students to practice critical thinking skills, but they rarely teach those skills directly. Nor do doctrinal courses offer much in the way of written exercises or individualized feedback.

Well-staffed legal writing courses offer much better instruction in legal reasoning, analysis, and statutory construction than doctrinal courses. The texts for those courses explicitly teach students how to analyze cases, dissect statutes, and engage in other types of legal analysis. The professors require multiple writing assignments and offer extensive individualized feedback.

If you doubt the role of contemporary legal writing courses in teaching students critical thinking, search your law school archives for first-semester essay exams written before 2000. How many of those exams display good legal reasoning, analysis, or statutory construction? How many simply recite random doctrinal rules, with little attempt to apply those rules to the facts of a hypothetical? Now compare those essays to contemporary ones. If your law school does a good job staffing legal writing–and allocates sufficient credits to the course–I bet the contemporary exams are much better written.

And now let’s talk about clinics. Does Professor Kahn really believe that clinic students represent clients without engaging in legal reasoning, analysis, or statutory construction? If post-graduation practice requires those skills, then why doesn’t clinical practice do the same?

I teach two clinics: Criminal Prosecution in the fall, and Criminal Defense in the spring. During the semester that just ended, my Defense students represented 34 clients charged with more than two dozen different offenses. These offenses covered a broad range of behaviors: soliciting, endangering children, failure to file sales tax reports, contempt, possession of drug paraphernalia, selling liquor to a minor, driving under suspension, obstructing official business, illegal discharge of a weapon . . . .  Needless to say, all of these offenses are statutory–and almost none are covered in other law school courses. These cases offered students multiple opportunities to explore statutory language, weigh legislative intent, and flex their statutory interpretation muscles in novel contexts.

Each student handled cases arising under 4-5 statutes; they all participated in discussions exploring statutes analyzed by their classmates. Nor was this the end of their statutory work. The students all had to master Ohio’s detailed speedy trial statutes, as well as federal immigration laws (to advise clients on immigration consequences), concealed-carry laws (to know which convictions would endanger a client’s license), and a variety of occupational licensing laws (again, to advise clients on the implications of possible pleas).

In the Defense Clinic, we have to know these statutes (and their accompanying case law) well enough to persuade a busy, sometimes less-informed prosecutor about their meaning. In some cases, we boil the statutes down to flow charts illustrating the provisions–and we have had judges ask for copies of our charts. In other cases we highlight and annotate a statute so that the prosecutor has a take-away to study. Those real-life exercises require deep understanding of the statutory scheme.

I am confident that tax courses allow students to polish their statutory construction skills. For that reason, among others, I encourage every law student to take at least one tax course. But I am even more certain that clinics give students a chance to advance their statutory construction skills (along with other types of legal reasoning and analysis) to a new level. Students in my clinics must interpret a variety of statutes drawn from very different fields, integrate those statutes in a single case, explain the statutes’ meaning to clients, and develop persuasive arguments for opposing counsel and the court.

Seminar sessions in a clinic “likely are more focused on the delivery of legal services than on the analysis of legal issues and policies.”

How in the world does one deliver legal services without analyzing legal issues and policies? In both of my clinics, the seminar sessions focus overwhelmingly on the analysis of legal issues and policies. So do all of the individual conferences I hold with students and the negotiations students conduct with opposing counsel.

Professor Kahn seems to think that law school clinics deliver very simplistic services, ones that require little discussion of novel issues or policies. But the clinics I know radiate novel legal issues and provocative policies. In part this is by design. We don’t have to accept every client who appears at the door; we choose cases that will challenge the students. In part, the novelty reflects the reality of human behavior: humans have an irrepressible ability to generate new problems.

Even the simplest cases are hard. Last year we represented an Uber driver charged with failing to display his license properly. The applicable ordinance was convoluted–and had been amended by the city council shortly before the alleged crime. The legislative history was relevant, but almost impossible to unearth. As for policy: Did the city want to enhance tourism by fostering a new transportation network? Or was it worried about unregulated drivers? Did the police ticket Uber drivers because they were friends with the cabbies? Did our client’s race have anything to do with his arrest? To what extent, if at all, would we refer to these issues when plea bargaining with the prosecutor?

If a simple licensing case can provoke that type of discussion, imagine what you can do with domestic violence, prostitution, illegal discharge of a weapon, and other crimes.

“Much of th[e] time [in clinical courses] can be spent in ways that have little or no educational value (such as sitting in court waiting for a case to be called).”

Misdemeanor practice is notorious for its courtroom waits. In both my Prosecution Clinic and Defense one, students spend some time in a courtroom waiting for their cases to be called. But each student handles only 2-4 cases a semester, which allows them to engage in the detailed work described above. This limit also caps the amount of time spent waiting in court. I estimate that, over the course of a semester, each student spends up to 10 hours waiting for a case to be called or (more common) for someone to show up for a meeting.

That’s 10 hours out of 180 hours devoted to my 4-credit clinic–about 5.6% of total learning time. Students, moreover, regularly report how much they learn during this “down time.” They observe the judge and other lawyers, they overhear other negotiations (misdemeanor courts offer little privacy), and they watch other lawyers interact with their clients (ditto). They also reflect on the machinery of justice: Look how quickly the judge processes these plea bargains. Do the clients understand the rights they are giving up? Why are the clients left out of the negotiations between lawyers? Why are so many of the defendants nonwhite?

If all else fails, students use their waiting time to read for other courses. I much prefer, however, that they use the time to look around and learn from others.

“Another reason [to prefer simulation courses] is that the instructor in a simulation course can control the issues that will arise rather than . . . depend on what issues a client brings.”

That’s true, up to a point. Most clinics choose their clients and cases, which allows considerable control over the issues that students face. But it’s exactly the uncontrollable elements that students need by their third year of law school. They won’t be able to control their facts or issues once they graduate, unless they focus on appellate work. Clients, for better or worse, are the heart of most law practice–and clients have the annoying habit of changing their stories, shifting their goals, and otherwise engaging in uncontrollable, unpredictable behavior.

I believe in controlling facts and issues in most law school courses; students can’t learn everything at once. But at some point, students have to grapple with uncertainty: that’s a key part of thinking like a lawyer. The type of uncertainty they will face in practice, moreover, is much more complicated than a podium professor saying “now assume that the plaintiff changes her story from A to B. What result now?”

When employers complain that law graduates are not “practice ready,” I think they are pointing primarily to this inability to cope with the fluidity of facts, issues, and personalities that practice entails. About half of the students who enroll in my prosecution or defense clinics don’t plan to practice criminal law. They take the clinic because they want to learn how to deal with the uncontrollable aspects of law practice.

Etcetera

I haven’t even touched upon the other learning that occurs in clinics. Students learn to elicit the trust of clients with very different life experiences than their own. They learn to interview witnesses as the most effective lawyers do, by listening rather than cross-examining. They learn how to negotiate, rather than just argue. They learn how to juggle “facts” when nothing is certain. They learn to deal with their own anger when a client lies or opposing counsel treats them with condescension. They learn that the legal system sometimes shines but also falters. They learn how to check for conflicts of interest, document a case, and manage paper flow. They learn how to further a client’s goal, even when they would choose differently. They learn to solve complex problems with many moving pieces. They even learn where the courthouse is–and how to get the best parking rates.

In Sum

One can, as Professor Kahn suggests, debate the appropriate balance among doctrinal, experiential, and (I would add) interdisciplinary, perspective, and seminar courses in law school. But to have an intelligent debate, we need to know the content of those course types. Professor Kahn’s article reflects many of the stereotypes that educators hold about clinical and other experiential courses. Let’s learn the facts before we begin to negotiate: that’s a key lesson we teach in clinics.