We at NITA have been thinking hard about educating the trial lawyer and oral advocate. Law schools are focusing hard on teaching the student enough to be “ready to go” upon graduation. My question today is this: “ready to go” . . . do what?
I thought hard about that question when I was teaching law school, too. A small seminar-style enrollment allowed me to design a class that suits the Academy—challenging students to read a lot, think hard, be able to discuss the principles, and reinforce this learning through quickly paced, unforgiving, but delightful class discussion amid lecturing. Their final paper—their approved topic, original research, a strong issue about the evolution of ADR, and excellent writing—cinched the academic challenge of leading them to master the legal substance of ADR and the principles of its practice. My students were receiving credit for a course in Alternative Dispute Resolution. I targeted delivery of deep remembered learning, and they got it done. Fine.
My remaining challenge was to work application of those lessons into the course syllabus. As the Academy and the ABA recognize in the ongoing certification discussions, the smart law school provides students the chance to apply the course material in very class, even contracts. Clearly, applying the learned principles of law and practice deepens both the understanding of the reasons behind the legal principles and how hard it is to deliver just results. (If done within every course, it also raises the stakes on the student’s study of the course material to begin with.) For my class, the puzzle was how to give them that chance to apply their “substance + process” learning and feel the processes at work. My answer? To pause after concluding the study of each ADR type (for us, arbitration, mediation, negotiation) and devote one entire class week to prepare and conduct a moot exercise. I more than filled their plate for a three-credit course: they worked really hard; they “got” the law and its reasons and processes.
Let us take an unpolarized hard look at what the question is around the current debates on “experiential learning,” the law school’s accreditation requirements, and every law school’s marketplace desire to declare its graduates “ready to go.”
We seem to suffer from a misnomer. “Applied learning” is the better term. Students arrive with no client/matter experience. They need chances to apply what they learn in each class subject, getting a feel for helping a client in that substantive area, and deepening their grasp of the why’s and wherefore’s of The Law. By analogy, undergraduates are lucky to be supported with a unified program of learning, application, externships, and pre-career guidance and development.
Except for clinics in states where law students may appear in court on behalf of clients, however, this learning is different from experience. Experience comes from doing it for the stakes. Doing it to win for a client. Doing it case after case, year after year. We as a profession cannot shoe-horn that into the law school environment. The more you actually do it, the more experience you accumulate. The more you accumulate, the more you appreciate your mentors. (This is why we call our client work “practice”!) And, in today’s fast-paced and competitive practice environment, the more you seek mentors, the more you wish you could pause and deepen you mastery without having a client depending on you for an outcome. Actual experience, assuming you already have studied and mastered the requisite law curriculum, provides the solid framework on which to hang new lessons and better skills.
Thus, “experiential learning” is a misnomer for the problems we are trying to solve at the law school level. What we are talking about is applied learning for law students. Applied learning is the real issue in the ongoing the debates about ABA accreditation standards, a two- or three-year law school foundation, and defining the scope of the legal curriculum so that a graduate is “ready to go” start working for clients. I take no position on the accreditation debates. I simply hypothesize that application of substance + process should occur in every law school course, with support from centers that coordinate and assure the students are getting their chance to apply.
We treasure and invest in our NITA contribution to the Academy. Our intense work at NITA is to provide a real-life experience, for experienced practitioners who have more under their belt than law students, where they can return to solid and safe learning-by-doing. Repeatedly, as their experience lengthens.
Apply it in law school—try it on. Experience it through, well, experience—and periodically seek to learn better ways in safe places.