David's keynote address at LILI 2006 examined how law teachers can use their imagination to light up the knowledge, skills and values that law students seek to attain during their law degrees. This first part of his paper focuses on the importance of using interactive teaching methods to teach effectively and creatively in order to motivate students to participate actively in the learning process. A number of imaginative ways of providing student-centred legal education are illustrated.
The second part of the paper discusses the criteria stated for the revised South African LLB programme and how these compare with the preliminary findings of a survey of law students at two South African universities regarding the knowledge, values and skills they would like to acquire during their law degrees. Contact David on e-mail: mcquoidm@ukzn.ac.za.
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“I hear and I forget. I see and I remember. I do and I understand.”
In most countries the teaching of law, like many academic disciplines, does not require law teachers to undergo a pedagogical skills training course. The result is that most new law teachers simply adopt the habits and teaching methods of their former teachers. This usually means adopting the lecture method – according to educational psychologists one of the most ineffective ways of imparting knowledge to law students.
The injunction by Confucius regarding the need to let students do things rather than merely hear things has been borne out by studies culminating in the 'Learning Pyramid'. (The origins of the Learning Pyramid are somewhat controversial and there is confusion about who the original author was - links to further information are given in the further reading section below.) The Learning Pyramid indicates that the rate of memory retention increases as more learner-centred interactive teaching methods are used. For example, if lectures are used learners remember 5%. If learners read for themselves they remember 10%. If audio-visual methods are used (such as an overhead projector or PowerPoint) learners remember 20%. If learners see a demonstration they will remember 30%. If they discuss issues in small groups they will remember 50%. If they practice by doing they will remember 75%. However, if the learners teach others or immediately use the information they have been given they will remember 90%.
The fact that studies have shown that traditional legal studies result in a "dulling of student motivation and...altruistic values" (Krieger, 2002:114) clearly indicates a need to 'illuminate legal education'. One method of doing this is to introduce clinical legal education methods and the interactive forms of learning associated with it when teaching substantive and procedural law to law students.
The 1960s, 1970s, 1980s and 1990s saw the rise of clinical legal education in countries such as the United States (see Milstein, 2001), the United Kingdom (see Brayne, Duncan & Grimes, 1998), South Africa (see McQuoid-Mason, 1982:139-163), Australia (see Law Council of Australia, 2001), and others (see McCutcheon, 2000:267). In these early programmes clinical legal education was often designed to teach practical legal skills in a social justice context. This meant moving away from traditional, mainly knowledge-based, learning, towards the incorporation of skills and values in the law curriculum using interactive teaching methods. The objective was to engage law students in student-centred learning rather than relegating their role to that of passive recipients of the law teacher's perceived wisdom. 'Learning through doing' to teach legal knowledge, skills and values requires law teachers to forget unimaginative past practices and to motivate and stimulate the students to take an active part in the learning process.
Clinical legal education can be simply defined as experiential learning whereby law students gain practical skills and deliver legal services in a social justice environment. During the process students are confronted with real life situations and play the role of lawyers to solve the problems. They do this by interacting with clients or each other to identify and resolve legal issues, and are subjected to critical review by their teachers or peers. Clinical legal education enables law students to play an active role in the learning process and to see how the law operates in real life situations (Brayne, Duncan & Grimes, 1998:1). Clinical legal education programmes usually take the form of 'live client' or 'street law' (legal literacy) type clinics. However, the learning methods used can also be adapted for use when teaching substantive and procedural law.
Clinical legal education provides law students with the tools that lay the foundations for their future careers as lawyers. While traditional legal education tends to focus on the theoretical content of the law and to be knowledge-based, clinical legal education goes further and provides law students with the necessary skills for legal practice. It also inculcates values such as the duty of lawyers to become involved in social justice issues in society, and to display professional responsibility while practising law. Many of these skills and values can also be incorporated into the teaching of substantive and procedural law.
For the purposes of this paper it is not intended to revisit the debate about whether academic and professional training aspects of legal education should be separated and undertaken by different bodies. The modern view is that the two are inter-related and should be taught together rather than separately. (See Australian Law Reform Commission, 1990 at para 2.81, American Bar Association, 1992, and Cooper, 2002.)
Although clinical legal education learning methods are traditionally used to teach such lawyering skills as interviewing and counselling, legal writing and drafting, fact finding, case analysis, trial preparation and trial advocacy, they can also be used to teach substantive and procedural law courses.
Depending on the nature of the law school's academic programme it may not always be possible to replace lectures entirely with clinical teaching methods. However, where there is scope for small group work, such as tutorials or practical sessions, it is possible to introduce a wide variety of interactive clinical legal education teaching methods in order to illuminate the substantive and procedural law curriculum for law students.
Some of the more common interactive learning methods include the following:
Each of these methods will be discussed briefly together with the some suggested steps on how to use them.
In role plays students draw on their own experience to act out a particular situation (for example, a police officer arresting somebody). Students use their imagination to flesh out the role play.
Role plays are used to illustrate a legal situation and then require students to identify what has happened, make a decision on what should be done, and then resolve the conflict illustrated in the role play or act out a conclusion to what happened during the role play. (See Arbetman et al, 1999:11-13, and McQuiod-Mason et al, 2005:7-8, for further information on conducting role plays.)
A law teacher may use the following steps when conducting role plays:
Although the law teacher sets the scene, he or she should accept what the students do. Role plays often reveal information about the learner's experiences as a story in itself (Brayne, Duncan & Grimes, 1998:173-208). Role plays can be used to teach knowledge, skills and values and illuminate most substantive and procedural law subjects.
Simulations require students to act out a role by following a script. They are not open-ended like role plays, and are carefully scripted to ensure that the objectives of the exercise are achieved (But see Brayne, Duncan & Grimes, 1998:173-208, where the terms 'role play' and 'simulation' are used interchangeably.)
Simulations usually require more preparation than role plays because students may need more time to prepare to follow the script. The law teacher should tell students about the persons or situation they are simulating before they act out the scene to give them time to rehearse.
The procedure for conducting a simulation is similar to that for a role play and law teachers may follow the seven steps suggested above for role plays.
The present writer has prepared a short dramatic simulation based on verbatim extracts from Kafka's The Trial in order to enable students to analyse the different parts of a trial as they operate under the adversarial and inquisitorial systems of justice.
Like role plays simulations can be used to illuminate most substantive and procedural law courses. Simulations may be used to teach knowledge, skills and values.
Moots involve case studies in which students are required to argue an appeal on an undecided point of law (Arbetman et al, 1999:22-24). In law faculties moots are usually conducted formally, in that the students dress for court and argue an appeal in a simulated moot court environment.
More informal moots may be conducted in tutorial groups and street law classes, where students can be required to prepare arguments in small groups and then to elect a colleague to present the arguments of the group in a 'fishbowl' setting (see below), where the remaining students act as observers and comment on the arguments presented and the judgment rendered during the moot.
Another method is to use 'mini-moots' where students are divided into triads (see below) with a lawyer on each side and a 'judge' to control the proceedings, give a judgment and report back to all the other students. Here there are no student observers but every single student plays an individual role either as a lawyer or judge. Mini-moots are a very useful method of getting all the students in a class involved in the moot process.
When preparing large numbers of students for a more informal moot and conducting such a moot the following procedure can be used:
Moots can be used to teach knowledge and skills and to illustrate most substantive and procedural law topics.
Mock trials are an experiential way of learning that teaches students to understand court procedures (see Arbetman et al, 1999:18-22, and McQuoid-Mason et al, 2005:11-19). Mock trials take a variety of forms. In clinical programmes teaching criminal or civil proceedings the trials can be spread over a full semester with students being carefully coached on each aspect of the trial.
In the classroom setting and in street law mock trials large numbers of students can be used. For example, street law mock trials using the adversarial system can involve up to 28 participants - 11 for the plaintiff or prosecution team and 11 for the defence, plus a judge and two assessors (a jury could increase the numbers even more), court orderly, registrar and timekeeper. In the case of street law mock trials using the inquisitorial system even more students can be involved, because in addition to the prosecution and defence teams a team of judges can be also be included. (On the different types of mock trials and using mock trials in adversarial and inquisitorial systems see McQuoid-Mason (1999:26-41)).
In both models participants are taught the different steps in a trial. They are also taught basic skills, such as how to make an opening statement, how to lead evidence, how to cross-examine, how to re-examine and how to make a closing statement. Participants can play the role of witnesses, court officials, judges and lawyers.
Mock trials allow students to experience court room procedures and understand how the courts resolve disputes. Mock trials enable students to see how lawsuits are dealt with by lawyers and judges and how the procedures impact on witnesses, accused persons and experts. They also help students to develop (McQuoid-Mason et al, 2005:11-12):
Preparing for a mock trial
The law teacher may use the following steps to prepare for and conduct a mock trial involving large numbers of students:
Teams for the mock trial
The following teams may be used for a mock trial involving 26 students in an adversarial case:
Prosecution team
Defence team
Court officials
Mock trials not only teach students about criminal and civil court proceedings but can also illuminate aspects of the law of evidence as well as the relevant substantive law involved in the case. They can be used to teach knowledge, skills and values. (For an example of a mock trial see McQuoid-Mason et al, 2005:120-129.)
Case studies are usually conducted by dividing students into three large groups of lawyers for plaintiffs or defendants (or prosecutors and accused persons) and judges, and then further subdividing the large groups into small groups to consider suitable arguments or solutions. Individuals from each group can be selected to present arguments or give judgments on behalf of the group. A variation might be for one group or set of groups to argue for one side, another group or set of groups to argue for the other side, and a third group or set of groups to give a decision or judgment on the arguments.
When requiring students to discuss case studies the following procedure can be used:
Case studies are often based on real incidents or cases, and at the end, after the students have made their decisions, the law teacher can tell them what happened in the real case. Case studies can be used to teach knowledge, skills and values, and help to develop logical and critical thinking as well as decision making (see Arbetman et al, 1999:9-11, and McQuoid-Mason et al, 2005:5-6).
Small group discussions should be carefully planned with clear guidelines regarding the procedure to be followed and the time allocated (see Arbetman et al, 1999:17). The groups should usually not exceed five people to ensure that everyone has a chance to speak. The groups should be numbered off by the law teacher (for example 1 to 5), or formed by taking every five people in a row or group and designating them as teams for group discussions.
The groups should be given instructions concerning their task – including how long they will have to discuss a topic or prepare for a debate or role play and how the group should be run (for example, elect a chairperson and a rapporteur or spokesperson who will report back to all the other students). Groups should be told to conduct their proceedings in such a way as to ensure that stronger students do not dominate and everyone has a fair opportunity to express themselves.
The law teacher may use the following steps when conducting small group discussions:
Small group discussions can be used to teach knowledge, skills and values and can be used with a variety of other methods such as moot preparations or case studies.
Debates involve controversial issues such as abortion, euthanasia, human cloning, prostitution, legalisation of drugs, corporal punishment, capital punishment or any other topic that would lead to disagreements amongst students. The topics must be controversial with room for arguments on both sides – not one-sided such as slavery.
The students may be divided into two groups, or small groups to prepare arguments for one or other side in the debate. The groups help the persons on each side who are chosen to debate on behalf of the group. The debate is conducted and the participants then vote in favour of or against the proposition.
The law teacher can use the following steps to conduct a debate:
A variation of the debate is 'mini-debates'. Here all the students are divided into triads (see below) to conduct mini-debates with debaters arguing for and against the proposition in each triad, together with an adjudicator who controls the debate, decides who the winner is, and reports back to all the other students.
Debates can be used to teach knowledge, skills and values.
'Taking a stand' requires students to stand up for their point of view by physically standing up and verbally justifying their position. A controversial topic should be chosen (see above in the section about debates).
As an example, students might be asked who are in favour and who are against the death penalty. Students would then have to take a stand under a placard stating 'In favour', 'Against' or 'Undecided', and would have to articulate their opinions on the death penalty.
The following procedure can be followed:
To assist the students in articulating their viewpoints in a logical manner they may be required to use a formula like the PRES formula (see below).
'Taking a stand' not only teaches students the skill of articulating an argument but also requires them to clarify their values.
The PRES formula has been developed to help students, particularly law students, to construct a logical argument when asked to think on their feet.
The PRES formula requires students to present their arguments by expressing the following (Palmer & McQuoid Mason, 2000:47, Palmer, Crocker & Kidd, 2003:21-23):
For example, opinions on the death penalty could be articulated as follows using the PRES formula:
Argument in favour of the death penalty for murder:
My Point of view is that I am in favour of the death penalty for murder.
The Reason is that I believe that if you unlawfully take someone's life you deserve to lose your own.
The Evidence for my point of view is the Old Testament of The Bible that says "An eye for an eye and a tooth for a tooth".
Therefore in Summary I am in favour of the death penalty for murder.
Argument against the death penalty for murder:
My Point of view is that I am against the death penalty for murder.
The Reason is that judges can make mistakes.
An Example is the English case of Timothy Evans who was found to have been innocent after he had been executed.
Therefore in Summary I am against the death penalty for murder.
Undecided argument on the death penalty for murder:
My Point of view is that I do not know whether I am in favour or against the death penalty for murder.
The Reason is that I do not know whether it makes any difference to the murder rate in a country.
For Example in the United States of America where some states have the death penalty and others do not the murder rate stays the same.
Therefore in Summary I do not know whether I am in favour or against the death penalty for murder.
Steps when teaching the PRES formula:
The PRES formula can be combined with other learning methods such as 'take a stand'. If students are required to make submissions rather than to express a point of view the PRES formula can become the SRES formula (Submission, Reason, Evidence/Example and Summary). The PRES formula teaches the valuable skill of being able to think on one's feet.
Games are a fun way for people to learn because most people, whether they are adults or children, enjoy playing games. Games may be used as 'ice breakers' but they may also be used to teach important topics in the law. Games can illustrate complicated legal principles in a simple experiential format. Where games are used to teach about the law they should not just be fun but should also have a serious purpose.
An example of a game that can that can be used to teach values and knowledge and introduce students to the need for law and types of laws that exist in democratic societies is what the present writer calls the 'Pen Game'. The game exists in a number of other different formats, and is also known as the 'No Rules Game' or the 'Seluron Game', and can be played in several ways. See, for instance, the 'Ring Game' in Arbetman et al, 1999:31-34, or the 'Paper Clip Game' in McQuoid-Mason et al, 2005:31-32.
The Pen Game is played as follows:
The Pen Game teaches knowledge and values – students not only learn why we need laws in society but also appreciate why laws are necessary. Law teachers should ensure that games are structured in such a way that they meet the learning outcomes for the exercise. Not only should the game cover the various principles to be learnt but the law teacher should ensure that during the debriefing all the outcomes have been achieved.
Games can be used to teach knowledge, skills and values.
Triads involve dividing students into small groups of three in which all three students participate in the activity concerned. It is a special form of small group work, as it ensures that every single learner is actively involved in the learning process. Triads are usually preceded by dividing students into three large groups - which in turn may be subdivided into small groups - in order to prepare for the activity to be conducted in the triads (for examples a moot, case study or role play).
The following steps can be used to conduct triads:
Triads can be used to teach knowledge, skills and values, and in combination with a variety of other learning methods.
'Fishbowls' can be used for observations of case studies, simulations, role plays or any other lawyering activity where students are required to critically analyse what has transpired during an exercise. They are also valuable when dealing with values and attitudes. For instance, in gender sensitivity exercises fishbowls can be used to enable students to observe the differences between how women relate to each other in given situations as opposed to what men do in similar circumstances.
An example of the steps in a fishbowl is the following:
Fishbowls can be used to teach knowledge, values and skills in combination with a number of other learning methods.
Law lectures usually require a comparatively simple lesson plan that enables the law teacher to cover the topic within the period of time allocated to the lecture. It is merely a question of structuring the content of the lecture to meet the outcomes for the lesson – usually a transfer of information.
Where however interactive teaching methods are used a variety of other issues have to be considered in order to present an effective lesson that is not simply knowledge-based and law teacher centred. Law cannot be taught as a value free discipline operating in a vacuum.
As has been pointed out an effective lesson is not merely a lecture – and certainly not a lecture on 'what the law is' based on black letter law concepts and principles. It could perhaps be argued that one of the reasons why law students regard the study of law as demotivating (see Sheldon & Krieger, 2004:261) is the failure to expose them to interactive and illuminating learning methods.
The present writer favours the street law approach to effective lessons, which recommends that ideally a good lesson should include the following:
Unlike in the case of lectures, where time management is relatively easy, interactive learning methods require very careful time management.
The present writer uses the following outline for lesson plans involving interactive learning methods:
Further reading on the Learning Pyramid:
David is James Scott Wylie Professor of Procedural and Clinical Law at the University of KwaZulu-Natal, Durban, founder of the South African Street Law programme, co-founder of the Democracy for All programme and President of the Commonwealth Legal Education Association (CLEA).
David was Dean of the Law School at the University of Natal for 13 years. He has facilitated at numerous NGO training workshops on street law, human rights and democracy in a variety of countries around the world and advised on the setting up and improving of legal aid schemes in Lithuania, Kyrgyzstan, Mongolia, Moldova and Nigeria, as well as on the establishment of paralegal advice offices in Sierra Leone, Mongolia, Moldova and Cambodia.
David is widely published. He has delivered over 130 papers at national conferences and over 80 at international conferences. On 10 December 2004 he was awarded a Special Mention by UNESCO for his work in human rights education.
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