To Counsel or Not to Counsel Students OUT of Clinics?

In our quest to offer and provide as many students as possible the opportunity to participate in clinics while in law school, the notion that a clinical experience is not  appropriate for certain students is not likely to be a popular one. Nonetheless, I imagine I’m not the only clinical professor who has faced this possibility with one or more students.  Under what circumstances should a clinician suggest to a student that the clinical setting may not be the best expenditure of a student’s effort at a particular point in time?  And in these situations, may there be ways in which a student can successfully be maintained in the clinic by reimagining his/her role in it?  Finally, is there something unique about clinics that should enable clinic faculty to even consider such a suggestion?  Or is the notion that it may occasionally be appropriate to counsel students out of participating in a clinic just another indicator that clinical legal education remains marginalized, given that it’s the rare associate dean who  sanctions students to abandon key “doctrinal” classes?

The likelihood of the issue arising increases greatly in a full-year clinic, and in one that accepts second year students, which I teach.  In a one semester clinic, work is usually winding down before it would become clear that a student might need to reconsider the experience. Some second year students have not yet assimilated enough of the ‘zeitgeist’ of lawyering to be able to see the whole picture or theory of a case.

What are some indicators that might suggest to a clinical professor undertake such a delicate conversation?  The most important I’ve come across is a student’s noted and ongoing inability to grasp the relevance of key legal principles to a client’s case. It’s usually not an inability to conduct factual research.  I’ve noticed a problem assimilating the disparate parts of the case into its whole. But in many of these cases, there may be ways of salvaging the situation and maintaining the student in the program. I’ve had success when I’ve refocused the student’s case responsibilities towards more fact-finding.  This serves both the case and the student’s need to be productive and gain confidence.

In a subsequent post I’ll discuss whether the notion of counseling students to withdraw from clinics suggests that clinics remain a marginalized department in law schools and whether  clinicians should resist pressure to advise students to do this.

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8 Responses

  1. I think that in the (so far for me, rare) case where it is pretty clear that the student is in the wrong place at the wrong time, I owe it to them (as well as the client, and probably the other students as well) to counsel them to take another course. Some people just aren’t cut out for the rigors of court, and in our clinic the student is live, in court, fully engaged as a lawyer. There are no do-overs.

    The trick is to differentiate between “cannot do it”, and “is going to have a hard time”. But there are times where we (the clinic faculty) do not doubt the inability of the student to do it. It may help that we have had a lot of court experience before coming to the clinic (30 years, 20 years., 15 years, or so)

    If it is a matter of the student being more comfortable in a back office research capacity rather than on-the-feet trials or negotiation, that can be handled by using co-counsel, allocating responsibility, and careful discussion of roles and strengths.

    In the instance where the student just plain does not have it, we have struggled with the how to break it. A number of years ago we told a student to take another course, and he did. There have been a few since where we struggled with how to break the news, and I (at least) think that the delay in confronting the problem has made it worse.

    I am very reluctant to conclude that someone cannot benefit from clinic. We have often had people struggle, and then blossom. But, especially since our clinic is by lottery, there are times where we just will need to point out that this is a mistake, no harm is done, let’s find another way for the student to learn law and carry on.

    • Dear Professor Burke,
      As a former teacher, I both sympathize with the dilemma you highlight and also very frustrated by your response. It highlights the core essence, or problem with legal education – passing a struggling student through the system. It is a moral hazard of self-protectionism. The underlying assumption you are making is that the student cannot learn the skills necessary to succeed in the clinic and should avoid all court room work. Personally, while I empathize with your situation, as a former teacher, you are taking a lawyer response – paternally deciding for the student what they can and cannot do – versus taking a teacher response and helping the student identify the skill deficits and developing a concrete action plan to correct the problem.

      You may be correct in saying that the clinic may be the inappropriate experience from a timing point of view. But the problem is the law school curriculum. The student’s lack of success or preparedness is not a reflection of their efforts, but more a reflection of curriculum weaknesses. Often forgotten, generally speaking, you are dealing with some of the most motivated students in the world, and not to mention talented, creative, and intelligent. However, the traditional lawschool curriculum is based on an assumption that students possess certain skills prior to arriving at certain degrees. But, like public school teacher counterparts often discover, that may not be the case with all students. Unlike in other education curriculums, the law school curriculum is deliberately obtuse. There is no running list of legal skills that a student should master, and identification of when those skills should be mastered by. The one exam per semester, masks skill development because it mistakingly assumes good product is a result of a good process. It assumes that students will only do what is reasonable, and not do the major unreasonable to succeed. But this is a false assumption. And when a student cannot handle clinic, the falsity of this assumption is shown.

      Although you may say that this is not your responsibility to teach it, then whose responsibility is it? You may point to first year teachers, you may point to legal research and writing teachers. The problems is the student successfully passed those classes. Now it is a blame the student game for being held a standard that they did not know about, or knew they had to learn. They slipped through the system, and unfortunately the law school system drops them. This a moral hazard at todays lawschool prices and life sacrifices.

      Before you answer, I want you to think about it from the students point of view. They did were asked to do, but the current system failed them, as both you and the student discovered. And now the question is do you help the student salvage their investment by helping them determine the skill deficits and set up an action plan with follow-up like a teacher in public schools with IEP, or do you push them through.

      My only suggestion, and I don’t mean to put more work on Clinic teachers, is that you are in a better position than most to help the student. If you can reassign the case to another student, and have that student perform the work virtually, doing the assignments and making the decisions like preparing for court, without courtroom submission, or in a second to third chair position to another student, you may actually help the student salvage there education versus pushing them back into a system that has already failed them. It gives them a semester or a year to collaborate and develop the skills in real world scenario, complete with the necessary coaching. Both parties in this scenario win.

  2. Michael: Thank you for your response. I want to spend some time on a fuller more thoughtful response (I think we are touching on some significant issues here) but some first thoughts are these.

    It seems beyond dispute that the educational system from bottom to top has not done as well as it either could, or should. Far too many students are “passed along” to avoid roiling the waters, and assumptions (stated and unstated) about who the students are, what we are teaching them, what they should learn, and what they are actually learning, are rampant and often wrong. We can critique that end of the process easily and at length, and it needs to be addressed.

    I agree it is my responsibility to teach a student what I can, and in this situation, that is how to be a lawyer, in the real world, doing real cases with real clients, strong and vigilant adversaries, and skeptical judges. And I must find whatever ways are available to help the nascent lawyer learn how to practice the craft. But if I am in a live practice clinic as compared to a simulation one, I do have to respond as both a teacher and a lawyer, I have to protect the client as well as the student, and I believe I have to try and honestly and fairly evaluate whether this person can actually do the job at hand.(I acknowledge that this is the tricky part, and perhaps the primary characteristic significantly differentiates a clinical professor from a doctrinal professor – but that is a different topic for a different day.)

    I hope to address your specific points more carefully in the not too distant future. I invite any and all response.

    Jim

  3. Dear Jim,

    I want to thank you for your response and I look forward to reading your more detailed critique. I do empathize with your situation. I also understand the unique pressures that you face as a clinic professor. You are both a teacher and a lawyer. Your license is on the line, when you are assisting students in clinic experiences. I also understand your need to protect clients and recognize that your clinic is a live a clinic.

    There are no silver bullet answers, or easy options. Please humor me as I pose some questions. I do not mean to seem like I am attacking you or your work. Rather, it is just the opposite. As a former teacher, I empathize and am sympathetic to classroom situations and difficulties.

    But the situation you articulated, is one that is too often glossed over, both in journals and other academic blogs. It is a situtation that is encountered not just in clinics but even in doctrinal courses. Adding a degree of difficulty to the problem is that it is difficult to discuss such topics, because the cause of the students issues are difficult to accurately diagnose, emotional to address and discuss with the student (ie ego of both student and teacher often get in the way), and time-consuming to address, and close to impossible to fix under the Legal Academy’s current structure.

    With all that said, your first thoughts response raise as important issue for me. You discuss your duty, and need to protect the client. But what my question is, what is your duty to the student, for without the student…there would be no clinic. This is a difficult question to pose, because it really bifurcated. If the student is not trying, or making an effort, than the duty to the student is obviously low. But if the student is trying, and putting in an acceptable effort, but lacks an underlying skill or skills that is preventing them from cutting it, the duty I think should be different. I maybe overstepping my bounds, and if I am, I appologize. I believe you are right, there is a duty to protect the client, no question about this. But there is also a duty to help the student get the help and training they need in this latter instance so that they can perform the craft of lawyering.

    The dilemma is how. Dropping them out of a clinic, is appropriate. I do not argue this fact. The demands of a live client and court require an absolute duty to deliver a high quality product. The consequences are too great. Yet, despite this reality, there is a second duty to the student to ensure that there is follow-up to address the students deficits. Otherwise, law academia is “cherry picking” there students in a second round. Law academia has that right in the first round in the admissions process. The second round once the student is there and proven themselves by performing acceptable enough to progress by achieving both the necessary grades and putting in both the effort and the work, law schools and any academic program for that matter, should lose that right.

    Let me re-empasize. I do not believe dropping a student out of a clinic, is a problem by itself, Dropping a student with no plan to address there deficits smells of a second round “cherry picking” that is a moral hazard. It makes the students previous efforts feel like a fraud with a blame the victim response. For the student in this instance did there part – did well in there classes to progress, did the work that was asked, and made the life sacrifices the curriculum demanded inorder to succeed and progress. The skill or skills they are missing thus were either not taught, articulated, reinforced, or tested to ensure that the student could not get to this point without them. If the student is putting an honest effort, it is not the students fault. It a major curriculum issue, surfacing through a student failure. However in this instance, the student pays the price emotionally, financially and professionally, while the curriculum problem goes unaddressed.

    My question, and it is not directed at you specifically, but in general, what is the duty to the student?

    Sincerely,
    MIchael

  4. Dear Jim, Michael and all readers,
    I want to raise another issue that your exceptionally thoughful dialogue provokes. Is every student or lawyer appropriate for every type of practice ? Now of course, clinic should be teaching process – the art of lifelong learning, reflective practice, how to learn how to “do law” – but some clinics have different tools, methods, and concerns. Some mistakes made can be corrected while others cost a client dearly. At Albany, we have a tradition of “interviewing” in some way – in writing or in person – students who apply to clinic and we often counsel students towards another clinic at least as the first step in clinic or to build some skills before engaging in other clinics. The challenge of sequencing and progression of courses and whether the traditional legal education curriculum properly advises about and offers good progression is the backdrop which creates the tension you both articulate quite well.

    Thanks for expressing your thoughts,
    Mary

    • Not all things for all people.

      I am somewhat remiss in responding, but since we just ended last semester’s clinic Friday and start this semester Tuesday, I have a partial excuse plus some recent anecdotes.

      First, a bit of background. Our clinic at Maine is all live practice: students are sworn in at the Supreme Judicial Court and are, in all respects, the lawyer. I often put it that my job is to keep them from killing the client. And our clinics are by lottery (a subject for another day). I was a lawyer in general small practice (doing a lot of criminal, civil, appellate, you name it) for almost 30 years before coming to the clinic.

      Just as I am not cut out to be a sports star, salesman, or almost any job that requires coordination, I don’t think just anyone can be a lawyer, which is not to say that they cannot study and learn law, and benefit greatly thereby. Law used to be called, and I believe still is, a learned profession: it takes a lot of learning, a great deal of thought, and a critical ability to think and articulate, to really be a lawyer. Stanley Fish in his recent NY Times piece wrote about the positive value of three years academic study and the value thereof. I do not subscribe to a Manichean view of law study, and see a lot of value in his underlying position. Many who study law can learn it well, contribute greatly to knowledge and society, and never set foot in a courtroom.

      Handling the transition from the cocoon of academe to the scrum of the courtroom (our clinic) or transactions involving real consequences (other styles of clinic) is rarely easy. I would suggest that the student who is blasé about it is more dangerous than the one who is scared, and needs to be handled (taught) differently. I have had several students who did not know if they really wanted to practice law, and took clinic to find out. A few of them decided they did not want to practice. At least one took it to challenge herself: she did wonderfully, grew, and does not go to Court at all.

      But I have absolutely no doubt that not every student can, nor should they, take clinic and succeed. Why should just anyone be able to do? It is a wonderfully complex, difficult, challenging and if we are lucky, rewarding endeavor. So is an almost infinite variety of other things, most of which I, at least, cannot do. But I can teach a student who has the ability how to be a lawyer in Court.

      The trick for me as a teacher is to accurately figure out who is in which category. This is not at all easy. I do not know any single predictor that appears on a paper that indicate who can succeed. In can tell if I meet someone and talk to them for a while who clearly can succeed, and I believe I can also tell who absolutely cannot (although that is a vastly smaller pool in my experience). The real challenge is the others. (Aside – the question is raised at times how we clinicians really may be different from the pure academics. At least one significant and structural difference, to my mind, is that it is one thing to teach a classroom course, be it podium or symposium, give a test on paper, and see what comes back. It is another to take the student, try to teach them all the pieces that would be in a class, and at the same time go to war and see what really happens. Ain’t the same thing.)

      I think it would help a lot if we started clinical experiences in the first semester and built up from there. It should identify the weaknesses early enough to design remedies and truly give the student a fair shot. It would allow more gradual leaving of the cocoon. Just as developing an athletic skill requires a lot of practice and repetition, so too does developing trial skill, and we can only scratch the surface at law school. But with what I believe is a very rare exception, I think I can, and should, be honest with the student, and tell them if I believe they cannot be a lawyer in the courtroom.

      I just finished this semester with a student who showed every indication at the beginning that he would do fine. He had some rough spots and I gave him a few small non-adversarial projects to see how he did: he seemed to like it and did well enough. But it became clear that he either just expected to get a pass grade for breathing (the cynical view), or something else was not right: He just could not put it together and seemed to shrink. In retrospect I should have gone deeper into this with him earlier, but he was not doing damage and other students and cases were more critical. So he slipped into a crack. I did however have a conversation last week with him and asked him why he took clinic. He said he did not know, but after we pursued that for a while, he said that he had decided he was not going to do a litigation or family practice, a decision I told him I agreed with.

      One could say that he successfully took clinic, in that he found out where he should not go. One could criticise me for not getting into his head earlier and perhaps finding that key that opens the door. I have a new crew starting tomorrow, and I shall try harder.

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  6. Dear Professor Lynch,

    I have been reflecting on the question you posed: “Is every student or lawyer appropriate for every type of practice ?” At frist glance, I recognize the importance of this question. It truly is a very fair question and one that needs to be asked. Yet despite the fairness in the question,and its importance, I cannot help, but question whether the question is this right question to be asking.

    My concern with the question, as you posed it are two fold. First,you lumped law students and lawyers together. Second, your use of the word “appropriate” without more information. My question to you, is not whether this question should be asked, but when is the question a fair question to ask. Specifically, Does the word appropriate embody the same implied evaluative standard,or criteria, for a law student as it does for a practicing lawyer? By lumping the two role groups together in the same question, you maybe implying that the implied standard, or criteria, is the same for both roles, but my question is should it be?

    A law students role, is to learn the law and skills necessary to become a competent lawyer. But yet they are not a lawyer yet. The question which you are posing is what is the expectation of the learning environment. As it is today, clinics aside, most law classes are taught by lecture with limited opportunity for application of knowledge skills, and limited opportunitity for practice to obtain Mastery in the regular law curriculum. Depending on the school, Many students can go through Law School with having only completed one oral argument and written one brief and one memo during there 1st year LRW class. For some students, this is all that they may need to internalize the skill. For other students, they need additional opportunities to cement the skills and “play” with the skills to gain a mastery. Due to the time committment of the regular curriculum, independent unsupervised practice may not be possible, or even well-advised. If you ask the appropriate question here, after the first year writing class, then you maybe cutting off some students for certain lines of legal work before they have been given “fair shot” to perform. Your rewarding natural skill, pre lawschool learning experiences, or natural predisposition, versus learned skilled and assuming in three years that a student cannot develop the skills necessary.

    A problem inherent int he Law School curriculum, is that, many students do not gain the opportunity to meaningfully practice or apply the skills until they reach an internship or clinic experience. Consequently, a student may develop many bad habits.by the time they reach application in a clinic or internship experiences due to unchecked misunderstandings, or mistaking coping mechansims for skill developement. Thus, with law school being three years, a student who may have skill gaps or still looking to achieve mastery level, may struggle in clinic or internship experiences, but gain the necessary mastery by graduation. There is an unspoken assumption here, that the “skills” a student needs to master are identifiable. And while I believe they are, I do not necessarily think the legal academy explicitly identifies them when they teach or model them in class. Many of the skills are taught by osmosis modeling. Although tangental, it leaves the student trying to distinguish between what is skill I should be learning, what is industry norm, and what is the professors “personal style”.

    A practicing lawyer standard “appropriate” is different and identifable. A practicing lawyer owes a duty to his client to practice with care and skill of an average practioner in his field. As a result, a practicing lawyer is expected to have certain skills, understand his or her strengths and weaknesses, and make decisions accordingly indetermining whether to accept or turn down a case. Having past law school and the bar, the practioner is expected to have a stronger sense of there own strength and weaknesses. As a result, they are expected to seek work experiences that play to their strengths and minimize their weaknesses.

    The question to me is a loaded question when it applied in the context of a clinic experience. From a clinic professor’s point of view, taking in the context of the entire dialogues, there criteria or standard for appropriate is going to be different from either a practioner or student. Professors operating in this relm operate both in the learning environment and professional world. By virtue of their position, are held to two different standards, and must try to strike a point inbetween the two divergent standards when asking the appropriate question. In clinic, one thing does become apparent, a students skill development. As a result, the “appropriate” standard, or criteria may be somewhere different than either a practioner or student standard. I do not pose where it should lie, or whether it should be the same for each clinic. But if it is a floating standard,how do you guide the student so they can find the appropriate experiences to build to a more advanced clinic experience?

    This leads me to a related question. Should this be the question be asked at all of law students? The word appropriate, regardless of which standard you apply, implies that there are skills or competencies at a proficiency level that can be identified. However, although many studies, like the MacCrate report, and others have attempted to identify them, there is no universal list. As a result, to ask a student still learning the skills with no identified list of them to reference, holds them to a moving a standard that only allows them to make a “gut feeling’ vs.an informed decision. To have a law professor make this judgment, while it carries weight, does not account for necessarily what skills are immutable and what skills are mutable, and whether the student can learn the mutable skills enough to compensate for their deficits in the immutable in order to practice in a certain area. As a result, despite the law professors best efforts to be objective, it is inherently subjective.

    I appologize for my long winded response, but my conclusion is that the “appropriate” question at this time is unfairly prejudicial to the law student because it is unclear what standard they are being held to, to what degree they are stilled allowed to learn before having to truly ask this question, and when is it appropriate for a professor to make this decision inorder to prevent a students learning opportunity being pre-maturely limited. Yet, despite this unfairity, I understand the need for the “appropriate question”, with its faults. In a General sense, No I do not think all areas of practice are appropriate for all law students and lawyers in general.

    Despite this answer, I think many students and practioners if motivated enough, could answer in the affirmative. And I think the legal academy should not accept the question out of convenience, but dedicate time, effort to explore what is needed on the underlying problems to this question today so that more of the current law students that are in the current “no” category can be moved over to the “yes” category. I do not believe this should be accomplished by methods of exclusion, but rather through methods of inclusion by examining the current curriculum and methodologies. I hypothesize the changes would not be significant..

    There is a disconnect when we allow the “no”. In theory lawyers in most states are generalists with no specialties. Law Schools, I have been told, are meant to train you to be a generalist, despite students concentrating in particular areas. If the profession is to hit those ideals, then the “no” category on the “appropriate” question should have far fewer members than it does today.

    I hope I did not offend for that was not my intention.

    Sincerely,

    MIchael

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