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Spencer, David; Monahan, Geoff --- "Alternative Learning Strategies For Legal Skills And Vocational Training" [2001] UTSLawRw 15; (2001) 3 University of Technology Sydney Law Review 210

• Introduction
• Experience-Based Learning
• Computer-Based Learning
• Learning In Groups
• Flexible Learning Techniques
• Conclusion

Alternative Learning Strategies For Legal Skills And Vocational Training

David Spencer[1] and Geoff Monahan[2]

Introduction

WHILE THERE appears to be some broad consensus as to the basic legal skills and competencies required for legal practice, the current debate appears to be proceeding upon a presumption that quality pre-admission legal skills and vocational training can be best undertaken by prescribing a minimum period of legal education. The present pre-admission academic and practical legal training (PLT) requirements are somewhat indicative of a quantitative approach to the production of a competent law graduate.³

In this paper, we will explore the notion that minimising and more efficiently using resources can achieve quality pre-admission legal skills and vocational training. The paper also supports the premise that producing quality law graduates is not simply a matter of investing a predetermined amount of time and resources. It is possible to produce high quality law graduates using alternative methods of educational delivery. Potentially, this learning can be achieved in the same time, or even in less time, than traditional face to face methods, and with arguably fewer resources than are currently being expended.

The ramifications of being able to reduce costs while increasing the quality of law graduates are enormous, particularly given the current tertiary atmosphere of economic rationalisation. If it is possible to use quality methods in delivering legal skills/PLT, and to produce a graduate with a higher standard of practical legal skills, then two important propositions follow. Firstly, law graduates with the same high standard of practical legal skills can be produced in less time and using fewer resources. Secondly, a law graduate with an advanced level of practical legal skills could enter the marketplace having had the same amount of resources expended by the educational institution as is currently being spent. In other words, the law school/PLT provider has the choice of delivering into the marketplace a law graduate with an entrance level of competency or a law graduate with advanced levels of competencies, at substantially the same cost to the law school/PLT provider.

Increasing quality while reducing the resource impact is possible when one considers and employs certain combinations of educational strategies. The strategies suggested in this paper include experienced-based learning, computer-based learning, group learning and flexible learning.

Most of these strategies operate best when students are enrolled part time and have the benefit of contemporaneous experience-based learning. That is, learning at the same time as being able to put the skills learnt into practice. This paper will discuss each of these strategies with the benefit of anecdotal evidence based on our experience of teaching within the full time and part time ‘on-campus’ legal skills/PLT program(s) at the University of Technology Sydney (UTS).

Experience-Based Learning

Given the multitude of tasks that lawyers perform, the utilisation of experience-based learning is not only appropriate, but should arguably be considered mandatory. This may explain why ‘articles of clerkship’, a system of experience-based learning, has historically been employed throughout the profession, and still occurs in most jurisdictions in Australia.⁴ Experienced-based learning can be defined as:

...learning in which the learner is directly in touch with the realities being studied. It is contrasted with learning in which the learner only reads about, hears about, and talks or writes about these realities; experiential learning typically involves not merely observing the phenomenon being studied, but also doing something with it; testing the dynamics of that reality to learn more about it, or applying the thing learned to achieve some desired result.[5]

Anderson et al. acknowledge that there are numerous ways that experience-based learning can be achieved, but they suggest that a common element is the ‘emphasis on direct contact with sources, people and settings rather than on vicarious awareness’.[6] In most PLT programs, the direct contact with sources, people and settings is usually satisfied either by actual workplace experience or by skills and knowledge acquisition delivered, in the main, by legal practitioners employed as teaching mentors. Material simulations, based upon common transactions, are an alternative and popular method of providing experience-based learning. However, these elements of PLT fall into the category of vicarious awareness and are no substitute for contemporaneous experience-based learning.

Using David L. Smith’s model for experience-based teacher education⁷ and applying it to the learning of legal skills/PLT, it is possible to categorise experience-based learning as having the following four purposes:

• To experience the nature of a law firm or government or corporate legal department as an institution and the elements that go to make up that specific organisation. It includes experiencing the roles of lawyers and highlights the complexity of practising law, as well as the dimensions of legal practice, such as the political, economic, social, physical, power and authority and community dimensions.
• To develop skills, competencies and awareness that combine to create an effective and successful learning experience. This purpose relates to law graduates coming to the realisation that they are able to work effectively with other lawyers and support staff and to develop as a competent legal practitioner.
• To enable law graduates to apply, test and reconstruct theories, concepts and generalisations that have evolved and are continuing to evolve. Experiential learning will enable students to challenge the theories canvassed at law school by arguing the facts of client matters and moving change within the general law.
• For law graduates to gain evaluative feedback and assistance in their role as lawyers. The feedback may come from lecturers, tutors (or clinical practitioners), visiting legal practitioners, peers or supervising lawyers in the workplace.

Smith’s four purposes put in context the dichotomy of experience which it would be desirable for law graduates to have when entering the profession. Not surprisingly, these purposes are difficult to simulate within legal skills/PLT programs. That is why they are the hallmarks of experience-based learning. For example, in relation to Smith’s first purpose, it is difficult for law schools/PLT providers to simulate the developmental framework that has taken place over many years and has manifested itself in many of today’s law firms. Many of the dimensions Smith alludes to cannot be experienced in a simulated fashion, such as the social and political dimensions of being a lawyer. These are matters that, generally speaking, can only be experienced in legal practice.

While both small- and large-sized group work is encouraged in most legal skills/PLT programs, the realisation of the importance of the ability to function as a discrete unit in legal practice is an experience-based learning technique. As such, it is really only available in the milieu of a legal office, when the gravity and volume of the work the law graduate is participating in dictates the necessity to function as an individual and as a team, depending on the task at hand. In this respect, we believe that Smith’s second purpose is difficult, but not impossible to simulate. The challenge, in this respect, is to provide quality legal skills and vocational training that meet the requirements and demands of the profession. The provision of properly structured work-based learning, supervised in part by the legal skills/PLT teaching staff, may satisfy Smith’s second purpose.

Smith’s third purpose arguably operates most effectively via work-based learning (e.g. clinical legal education). However, coursework simulations can replicate the experience and therefore involve evaluating the legal training received against the simulation. The use of technology enhances the learning experience, for example videotaped feedback sessions, which are not available in a real court of law or legal office. Finally, the role of feedback can be satisfied either by observation of the law graduate’s performance ‘on the job’ or anecdotally after the fact.

Mandatory pre-admission practical experience partly fulfils these four purposes. For example, under the UTS, University of Western Sydney (UWS), University of Wollongong and NSW College of Law PLT programs, a prescribed practical experience period must be spent under the supervision of a legal practitioner with an unrestricted practising certificate, and the work that the student is to participate in must be of the nature of legal practice.

For full time students, the opportunity for contemporaneous experience-based learning is problematic. However, part time students have the opportunity to contemporaneously participate in experience-based learning by attending a law office (public or private) during the day and participating in PLT during the evenings and at weekends.

The practical experience component of PLT (or similar clinical legal education) will theoretically allow both full and part time students to experience Smith’s four purposes. However, there is a qualitative difference between full and part time PLT when it comes to experience-based learning. Students in both the full and part time modes report a high incidence of learning experiences that provide a nexus between theory and practise (i.e. the types of experiences which can be directly attributable to Smith’s four purposes). However, it is generally only students in the part time mode who are able to report a contemporaneous experience which provides the optimum nexus between pre-admission legal skills and vocational training and the practice of law.

A recent example from the UTS course is illustrative of this notion. During the foundation skills component, which is at the commencement of each semester, students are taught certain drafting skills that will assist them in completing many of the tasks throughout the entire program. During an evening class for part time students, affidavit drafting is taught. The following day, at work, one of the part time students was called upon to draft an affidavit. She drew upon the learning experience from the previous evening and was able to complete the task. In this example, the impact of the learning is enhanced by the experience and deeper learning is achieved by the contemporaneous performance of the task both at university and in the workplace. Other students have brought prior learning experiences to the class. So the contemporaneous experience-based learning can operate in either direction, that is, from the workplace to the classroom or from the classroom to the workplace.

In regard to this enhanced experience, Smith quotes authors Johnson and Johnson, who state that experience-based learning is based upon three assumptions:

• you learn best when you are personally involved in the learning experience;
• knowledge has to be discovered by yourself if it is to mean anything to you or make a difference in your behaviour; and
• a commitment to learning is highest when you are free to set your own learning goals and actively pursue them in a given framework.[8]

It is suggested that experience-based learning strategies for legal skills and vocational training should encompass the abovementioned three assumptions. Once again, most structures for the learning of legal and other vocational skills set out to embrace these assumptions by providing for workplace experience in concert with institution-based learning.

A part time PLT program embraces the above three assumptions more so than similar full time PLT programs, for the reasons already discussed above, and those that follow. As to the first assumption, a part time PLT mode inextricably links students to their own learning by allowing students to utilise their learning experience in the milieu of a legal office on a daily basis. Students bringing legal experience into the classroom leads to the assumption that knowledge is being discovered in the workplace, which then has the effect of providing those students with greater levels of aptitude in the given tasks, thus satisfying the second assumption about experience-based learning.

Commitments to learning are increased when, because of the aforementioned experience being brought into the classroom, students are setting higher standards for themselves. A task-orientated legal skills/vocational program allows for different levels to be achieved depending upon the levels that students set for themselves. Good examples of this are the various practice or mock courts run by many law schools and most PLT programs. While students are given the same or similar sets of facts, some students will display a higher level of advocacy skills, which is usually linked to their experience-based learning patterns. For example, and generally speaking, students who were or are police prosecutors are often able to present material in court in a more coherent manner than many of their student peers. The experience accumulated in their job as court advocates provides a conduit between that experience and the theoretical models of court advocacy. Therefore, such students set their own learning goals and pursue a higher standard than those students with little or no experience in advocacy.

Communication lines between students and teaching staff are essential. Experience-based learning is of little value to the student if tasks under- taken at the learning institution are unrelated to the experience the student is gaining in the workplace. In this respect, the very nature of legal skills and vocational training implies an inextricable link between the learn- ing institution and the legal profession itself which manifests itself in achieving the learning objectives. As discussed above, while the admitting authorities prescribe the subjects to be taught, each institution is charged with the responsibility of deciding how the prescribed subjects are to be taught.

At UTS both the part time and full time on-campus PLT courses are lecture- and seminar-based. Formal lectures are conducted, followed up by seminar or tutorial style small group teaching in classes of between 16 and 20 students. In both the lecture and seminar format students and staff are encouraged to form a student—mentor relationship. In this way, the lines of communication are opened between the two and the student is placed in a position to discuss experience-based learning strategies with a variety of lawyers. All of the teaching staff have experience in the practice of law and in a variety of jurisdictions. This places them in a position to act as mentors to students and enhances the student’s experience-based learning by providing critical analysis, as well as supplementing it with experiences from the teaching staff’s own experiences in practice.

As part of the mentoring program students are encouraged to share their experiences with other students in small group teaching situations and, most importantly, many tasks are centred around smaller groups of no more than five students, or in pairs. Once again, this allows for the cross-pollination of learning experiences amongst all students. Students will have the opportunity to share experience-based learned skills with a wide variety of students as allocations for tasks (particularly in skills activities such as interviewing, negotiation and advocacy) see them working with a wide cross-section of the entire student body. Staff mentors also work across a wide range of student groups, with most sharing the learning experience with up to 100 students enrolled in each separate on-campus program.

Experience-based learning is an important element in maintaining and enhancing quality while at the same time reducing the amount of resources dedicated to the delivery of legal skills and vocational training. The whole idea is that students will more efficiently learn when their learning is experience based. The anecdotal evidence is already convincing that those students with the benefit of experience-based learning have the potential to achieve the same standard of learning as those without, but over a reduced period of time and therefore with a reduced investment of resources by the law school/PLT provider.

Computer-Based Learning

Reducing the dedication of resources when teaching legal skills and vocational training while still maintaining the quality is made all the more easier by the effective use of technology. Few would disagree with the proposition that technology is driven by the notion of achieving better quality results in shorter time periods.

Changes caused by the introduction of computers into a course are not limited to materials and instructional approaches. The roles and relationships of the people involved in the course—both students and teachers—may be greatly altered as well. This change in role dynamics results from a variety of factors, the two most critical of which are increased student autonomy and increased student efficiency in completing learning tasks.[9]

The other important driving force behind the impact of technology on the teaching of legal skills and vocational training (and traditional academic law, for that matter) is that the marketplace now demands a more technically capable law graduate. Most employers, legal or otherwise, require computer literacy and many organisations require advanced computer research skills.

In terms of instructional delivery, Heermann sees computers as fulfilling four roles. First, as a teaching machine that enhances informational skills. Informational skills are defined as:

...those skills used in the mastery of factual information and its underlying conceptual framework. Understanding of facts and basic concepts provides a vital foundation for making sense of higher-order concepts, solving problems, making decisions, and analysing options.[10]

Computers help students develop informational skills by presenting factual information in a way which will enable them to understand the facts, remember them, and allow easy access to them at a later stage.

It is suggested that there are three phases to this type of learning.¹¹ Phase one is the instructional phase, where students participate in activities designed to communicate factual information and concepts. At UTS, all law students undertaking the on-campus PLT major have their own dedicated computer with access to the Law Faculty’s databases and, more importantly, the internet (with further access to databases such as the Australian Legal Information Institute (AUSTLII), Butterworths/LBC, CCH Online and Lexis.com). Therefore, when students are learning how to draft, for example, affidavits as a substitute for oral evidence, they can use the computer to check the rules of the specific jurisdiction they are drafting for.

Phase two is the practice and evaluation phase, where there is an opportunity to try out what has been learned so that the degree of aptitude can be determined. In our affidavit example this will involve students actually drafting the affidavit based on an understanding of the rules they have learnt from their computer research. The drafting of such a document is naturally completed on the word processing package available on the computer and once drafted, the document can be printed and reviewed.

Phase three is the assessment phase, where students reflect on the meaning or relevance of the information and concepts that have been learned. The assessment phase is delivered either by feedback from the lecturers or tutors,[12] or by other students via simulated practice file or practice court activities. Often the peer assessment provides a better learning experience than assessment given by lecturers or tutors, as any former student who has had all or part of their carefully drafted affidavit struck out by one of their peers in a practice court will attest.

The second of Heermann’s roles views computers as simulators. This role makes the assumption that:

Ideally, by the end of the course a student has weakened ties with the teacher and is prepared to move on alone by continuing to learn how to think independently—the most important single end product of education...The prime responsibility of the teacher therefore is to help students advance from dependent memorising to independent thinking and problem solving. This is the leading edge in educational reform.[13]

The central thrust of using the computer as a simulator is to encourage students to become problem solvers not just regurgitators of factual information. Accordingly it has been stated that the essential elements of problem solving are:[14]

• Integrating factual information, concepts, and experience into a frame of reference that is meaningful for identifying problems.
• Unearthing problems and coherently defining them in terms of the frame of reference.
• Determining whether inductive logic, deductive logic, or a combination of both is most useful for solving a particular problem.
• Discriminating direct from inferential data.
• Generating alternative solutions for the problem.
• Analysing the implications of those alternatives.
• Separating prejudgments from data.
• Deciding on an optimal solution.

The benefit of using computers as simulators is that students have the advantage of a number of different simulated problems placed before them, which they must solve. By taking a certain course of action students see how their decisions affect the outcome. They have the opportunity to think laterally about the problem and try out ideas they may not have attempted without the simulation. In short, they practise problem-solving skills.

While computer simulations are not yet within the grasp of most educational providers because of the enormous memory requirements and therefore cost, we are told that the day is in sight when students will be able to sit at their computer terminal and participate in simulated property settlements, client conferences and even hearings in court rooms. Perhaps the virtual law school is closer than we think! Such first generation simulations will hopefully enable students to experience different simulated responses to different questions put by the student in the simulation. The problem-solving learning techniques involved in this type of simulation are invaluable.

The third role for computers in the delivery of education is as resources, to which most PLT students have access. The emphasis of the UTS program is ensuring that students have the most up to date computer-generated information. The central element of this strategy is the access to the internet, and in particular free online databases such as AustLII or commercial databases such as Butterworths or CCH Online. Students can have a judgment from the High Court of Australia on their monitor within minutes of the judgment being handed down. The benefit of such resources is obvious:

Engaging in meaningful intellectual inquiry depends on having access to the best thought, informed opinion, and research data relevant to the phenomena being investigated...computers can help students develop investigative skills, specifically those aspects of investigation necessary to effectively locate and retrieve information for undertaking reports, projects, and essays. These skills help students fulfil the learning objective of knowing where.[15]

In many respects the internet has given students a whole new world of resource information that was previously unavailable. But while the internet continues to broaden the information superhighway, other computer technology will assist in the resourcing of the classroom. For example, the use of online teleconferencing in the classroom, or even without a classroom, is a possibility being explored at the present time. In this milieu, the computer becomes a resource for those who are online; in other words, dependency on the classroom is reduced.

The impact this will have on the psychology of learning has yet to be determined, but the ability of computer technology to increase the size of the classroom to any geographical area, limited only by access to a computer, will dramatically alter the perceptions of traditional methods of learning. However, it is argued that computer-based learning can even solve the very social isolation it promotes.

If the use of computers as a resource threatens to cause problems through social isolation, it can also offer at least a partial solution to those problems. In addition to accessing data, students can use computers to access people, including experts in many fields, faculty and other students...Like in-person discussions, discussions mediated by computer are often lively and incisive, breaking new ground in students’ understanding of a discipline and enriching their preparation of theses, essays, and reports.[16]

For students, their geographical isolation may in fact provide them with the opportunity to expand their contact with the academic world through the use of computer-generated seminars and teleconferencing. The UTS program has now trialled the Top Class and Course Info (now generically referred to as UTS Online) teaching systems for its off-campus PLT course. This is a bulletin board system that enables students to access a body of information on any given topic. The benefits of UTS Online are that students can not only access the body of information, but can add their own findings to it, or just participate in the communication of ideas by posing a question or an opinion on the topic. Not only is this an example of using computers as a resource, but it gives students access to other students, expert opinions and the latest information on any given topic. For example, if a new piece of common law has just been determined, it normally takes weeks or even months for that information to find its way into the journals and looseleaf services. It may take years for it to find its way into textbooks. With online programs, information can be available on that new piece of common law almost immediately, providing the finder of the information shares it with other students who are accessing UTS Online.

A most important development for law school/PLT providers is the provision of all subject materials online. Like many law school/PLT providers, UTS is now providing, via the Law School home page (also via the UTS Library’s Electronic Closed Reserve and UTS Online), subject outlines, notes and seminar questions. Similarly, at the University of Western Sydney, students have access to a range of web-based material including course outlines, tutorial papers and discussion points. Students are able to access these materials from their home, office or university-based computer terminals. It is hoped that ultimately this vast body of information will be linked to software which will enable research on specific topics. To use our affidavit example once again, students will be able to enter the word ‘affidavit’ and not only access the relevant course notes dealing with this subject, but also have instantaneous access to the various court rules dealing with the drafting of affidavits as well as forms and precedents on this subject. Students can then either print out the relevant excerpts or store them on disk for later or home use. Naturally, this development will facilitate distance learning options for law school/PLT providers.

By using the computer as a resource, a law school/PLT provider not only maintains, and in some cases enhances, the quality of its overall program with the latest information, but also significantly reduces the resources required to deliver the program.

The final role for computers in the delivery of education, according to Heermann, is the use of computers as tools. By this he means:

using computers to enhance development of the analytical skills necessary to fulfil the learning objectives of ‘knowing what’ (classificatory knowing, or the ability to categorise and come to new understandings about sets of information based upon the discovery of common patterns) and ‘knowing why’ (conceptual and theoretical knowing). Used as a tool, the computer does not directly teach facts, theories, or even skills. Rather, it provides ways for students to use their own skills more effectively in whatever projects they wish to apply them to, much as a lever or pulley can help someone move almost any kind of heavy object.[17]

The use of fully integrated software packages in the UTS PLT program has highlighted the essential characteristics of computers as tools:

Turner...found that word processing is currently the most common use of the computer in education. Flexible and powerful word processing programs are increasingly available and easy for students to use. These programs often include or can be supplemented by such ancillary writing aids as spelling checkers, thesaurus programs, grammar and usage checkers, and style checkers.[18]

Anecdotal evidence to hand already suggests that UTS PLT students rely heavily upon word processing facilities available on their computers. Some students are also taking advantage of specialist software programs, such as Microsoft’s Power Point, which has been used by many students in seminar presentations (where data projection is not available). Students often email their presentations on Microsoft Power Point to every other student in the class, so that as the presenter is presenting the seminar, each other student has colour slides flash up on their screens on cue.

The use of computers as tools also helps facilitate the ability to participate in group-based learning. Groups with one student operating the computer to record results can complete tasks. All members in the group can later obtain a copy of those results via email or transfer to disk. This allows students in the group to research problems more efficiently because they do not have to worry about missing any key element of the research and reporting-back process. The results are safely stored on computer for the benefit of the entire group. Once again, we can already see that quality legal skills/vocational training are being delivered but with the use of fewer resources, in this case mainly class time.

By taking the mechanical fuss out of composition and revision, word processors give students more time to spend on the thoughts behind their words and more incentive to revise their work until it is truly as good as they can make it.[19]

Learning In Groups

Given the subjective nature of many of the tasks undertaken in a PLT program, group learning may have considerable educational merit. While there may be recognised ways of completing tasks, there is an element of individuality as to how those tasks may be completed. Where this occurs there is a natural compulsion to discuss the optimal way to complete the task. A rationale for this may well be that:

the value of working in small groups derives from a notion that man [sic] is a social animal: most people start their life in small groups, in the family unit, and there is therefore something natural about discussion in groups. Such aims are transported by students from society into the educational setting. Conversely, the development of teamwork skills derives from the movement of students from the educational setting into society.[20]

So while we may say that learning in groups is a psychologically sound proposition, enhanced by the nature of the legal skills/vocational training learning process, we need to define what a group actually consists of. While there have been many attempts at defining the precise characteristics of a group, the following list of qualities (identified by Jacques) goes some way to describe the dynamics of a group:

• Collective perception: members are collectively conscious of their existence as a group.
• Needs: members join a group because they believe it will satisfy some needs or give them some rewards.
• Shared aims: members hold common aims or ideals which to some extent bind them together. The achievement of aims is presumably one of the rewards.
• Interdependence: members are interdependent inasmuch as they are affected by and respond to any event that affects any of its members.
• Social organisation: a group can be seen as a social unit with norms, roles, statuses, power and emotional relationships.
• Interaction: members influence and respond to each other in the process of communicating, whether they are face-to-face or otherwise deployed. The sense of ‘group’ exists even when members are not collected in the same place.
• Cohesiveness: members want to remain in the group, to contribute to its well being and aims, and to join its activities.
• Membership: two or more people interacting for longer than a few minutes constitute a group.[21]

Differing theorists expound numerous theories on what number of people constitutes a group. Some say that at least three people are required, whilst others suggest that a pair display ‘group-like’ characteristics.

After establishing how to identify a group, it is important to discuss the aims and objectives of group learning. It has been suggested that the aims of higher education are:

(i) Developing imaginative and creative thinking.

(ii) Developing a critical and informed mind.

(iii) Developing an awareness of others’ interests and needs.

(iv) Developing a sense of academic rigour.

(v) Developing a social conscience.

(vi) Developing a willingness to share ideas.

(vii) Developing an ability and sense of enjoyment in lifelong learning.[22]

The above aims are consistent with the teaching of legal skills/vocational training and with what the legal profession requires from law graduates. The great difficulty with these aims is that they are difficult to measure. For example, it is difficult to measure whether a student has finished a program with a greater awareness of her or his social conscience as a practising lawyer. The most law school/PLT programs can hope is that courses are structured in such a way as to address these aims.

While it is often difficult to distinguish between aims and objectives in education, when it comes to group learning, a suggested dichotomy is that:

aims in essence indicate broad directions for teaching, are closely related to values and learning processes, and are impossible to pin down in a measurable form, objectives are generally taken to be descriptions of what a student should be able to do by the end of the learning occasion.[23]

This delineation of aims and objectives allows one to measure whether objectives have been achieved by the program. The simplest way to measure objectives is through the many ways of assessing students adopted by most teaching institutions. While assessment generally tests the depth of understanding of any given subject area, it also gives an indication of whether the objectives of the course have been satisfied. The UTS program utilises the traditional university approach to learning, in that it combines formal lectures in large groups with seminars and programmed activities in small groups. Unlike, some traditional tertiary approaches to seminar groups the UTS program does not treat seminars as an extension of the lecture program. Tutors are not the focal point of seminars, rather students themselves dominate. Across various diverse subjects, students will present pre-allocated seminar questions to the rest of the group and lead the discussion in the particular topic being presented. Students are encouraged to explore ideas of communication, such as the use of overhead presentations and the use of computers or other skills-based communication approaches such as interviewing and advising.

As for the subject areas such as advocacy, student-directed seminars take the form of a wide variety of task-based activities which are accomplished by the use of different-sized groups. At UTS for example, following a lecture expounding the essential elements of cross-examination, students will divide into smaller seminar groups to participate in ‘fishbowl’ exercises on the topic. This relies on the students being able to identify errors in a scripted cross-examination exercise and then to interject in order to correct the error. Students themselves take on the roles of the advocate and the witness, and these roles are swapped at each interjection, so that by the conclusion of the seminar, every student has participated as a ‘player’ in the fishbowl. Students do have the opportunity to clear up any misunderstandings from the lecture, but rather than using the seminars as a substitute for poor lecturing,[24] they are instead an opportunity to test ideas raised in the lecture in a practical milieu. However, it is suggested that small group seminars may serve another purpose:

Whatever the overt intentions of group work, there is little doubt that they serve purposes other than those stated. Small group discussion provides the opportunity for students not merely to engage in intellectual discourse but also to create a social ‘family’ to which they can belong and become identified with. It also allows students to learn ways of communicating their thoughts, and occasionally feelings, and of gauging their understanding of subject matter firstly by expressing it and secondly by comparing it with the understanding of their peers. Clearly, the atmosphere in the group will determine whether this can be conducted in an open and co-operative manner as opposed to a closed and competitive one.[25]

It is impossible to speak of learning in groups without having some regard for the tutors who have a substantial impact on the group dynamic. Using Jacques’ strategic considerations as a guide, the tutor is largely responsible for the success or failure of the group-based learning strategy.[26] The first strategic consideration that the tutor would normally address his or her mind to is the size of the group. Time and economic constraints will often dictate the size of the group. Tutors make these decisions based upon the knowledge that:

Not only does the opportunity for each member to contribute diminish in inverse ratio to the number of people in the group, but the discrepancy in level of participation between high contributors and low contributors is disproportionately greater.[27]

The second strategic consideration is that of membership of each group. A generally accepted strategy is that:

a heterogeneous mix of students in each group provides the best chemistry for interaction and achievement of task. Such qualities such as age, sex, nationality, personality, can be taken into account.[28]

While groups generally produce a great variety of experience and aptitude, one difficulty that has emerged is the creation of cliques, which are generated by students who have become friends throughout their degree course and find themselves together in the same group room.

The third strategic consideration for the tutors is the physical condition of the group rooms. At UTS the PLT seminar rooms are set up in rows of five workstations, side by side. However, tutors use a variety of physical settings, depending on the task. For example, when group discussions are programmed, students may be asked to bring their seats into a semi-circle or around a double table arrangement. During seminar presentations tutors may sit at the back of the room with the students between them and the student presenting the seminar. In other words, the tutor, in the physical sense, seeks not to be the dominant player in the room, rather allowing the students to run the seminar presentations.

The fourth strategic consideration is planning what to do. The lecturer who relies on a lecture and seminar format largely sets this. While discussions on the topics tend to be generated naturally, tutors may propose lead questions that will generate discussions. An important element of the seminar program and the tutor’s role is that seminars are seen very much as a time for students to discuss issues stemming from the relevant topic. Tutors tend not to dominate seminars and may not have much input at all if the students have addressed the issues raised by the topic and are generating discussion on their own. Of course tutors are available prior to the seminars to give advice on topics, which ensure students are raising the correct issues.

Finally tutors attempt to create a conducive atmosphere for students presenting seminars. This will most likely incorporate Hill’s criteria, which are:

• A happy, non-threatening atmosphere.
• Learning is accepted as a co-operative exercise.
• Learning is accepted as the object of discussion.
• Everyone participates and helps others to take part.
• Leadership functions are distributed.
• Material is adequately covered.
• Members attend regularly and are prepared for the discussion.
• Evaluation (assessment) is accepted as an integral part of the discussion group.[29]

The final element that allows learning in groups to work is the overall learning milieu. It is important to acknowledge that balancing university life with their life outside the university is a difficult task. The message is clear that students may need to reduce their extracurricular activities and ensure that they do not allow university deadlines to get the better of them. Access to technology to assist their learning is available as are teaching staff. The UTS program includes a class on methods and techniques in presenting seminars, and further classes examining what tutors will be looking for in assessing the presentations for the different subjects. This also necessitates providing the students with all the listed criteria used in assessing coursework and providing opportunities for preliminary feedback and reflection, if possible, prior to any formal assessment.

Learning in groups assists in the teaching and learning process to the point where quality is enhanced and resources can be reduced. The group dynamic itself promotes the application of skills in a way that is more efficient than students working as individuals. The sense of ‘community’ engendered by a group learning situation creates a positive learning atmosphere that also assists the genesis of quality.

Flexible Learning Techniques

Like most universities, UTS has an official commitment to flexible learning. In short, the major objectives focus on the introduction of flexible learning strategies in line with each faculty’s graduate profile. Also, they focus on establishing educational links to enhance the quality of teaching as well as to put in place quality assurance so that flexible learning strategies are successfully implemented and sustained. The Law Faculty has now introduced a dedicated off-campus PLT program and is offering various LLB subjects, postgraduate subjects and law-supplied business subjects in flexible mode.

But what exactly is flexible learning? The co-ordinator of the UTS Quality Unit, Professor Geoff Scott, defines flexible learning:

as a process which seeks to identify the unique combination of entry standards, content, learning strategies, resources and technologies, assessment approaches, participation times and locations which most economically, feasibly and appropriately matches the specific backgrounds, abilities, needs and experiences of each group of learners encountered, taking into account the learning outcomes sought, the requirements of the profession and the limitations set by the context in which this learning is to occur.[30]

From a university perspective, flexible learning is a major departure from the more traditional forms of tertiary teaching. Like many legal skills and vocational training courses, the UTS program was set up to coincide with traditional tertiary forms of delivery. Indeed at UTS, like the University of Newcastle and more recently UWS, undergraduate students complete their degree with an optional PLT component (or ‘major’ in their LLB with PLT). Therefore, they are accustomed to traditional methods of delivery such as lectures, tutorials, seminars and prescribed readings. However, with university policy favouring more flexible forms of delivery, because of its concentration on the practical as opposed to theoretical content, PLT is ideally placed to lead the revolution in flexible forms of delivery.

In some respects, the advent of flexible learning was not unexpected given the shortcomings of the traditional delivery of lecture and tutorial in tertiary education. In fact, Bligh cast doubt on the usefulness of the traditional lecture nearly 30 years ago:

comparisons of the effectiveness of the lecture method with other teaching methods suggest that it may be used appropriately to convey information, but it cannot be used effectively on its own to promote thought or to change or develop attitudes without variations in the usual lecture techniques.[31]

Bligh set out to find evidence on what is achieved from lectures. He argued three basic propositions:[32]

• With the possible exception of programmed learning, the lecture is as effective as any other method for transmitting information, but not more effective.
• Most lectures are not as effective as more active methods for the promotion of thought.
• Changing student attitudes should not normally be the major objective of a lecture.

His research of various combinations of methods of teaching showed that lectures achieved no higher level of effectiveness than other methods employed such as discussions, readings and face to face instruction, thus proving his first proposition to be correct. Regarding his second proposition, Bligh found that if students are to learn to think they must be given opportunities to do so and a lecture does not provide such opportunities. He found that the best way to learn to solve a problem is to be given a problem to solve—lectures generally do not take this approach. As to the third proposition, Bligh found, ‘that lectures are not as effective as more active methods for changing attitudes and the method should not be used to do what it cannot do effectively’.[33]

Bligh’s findings are interesting and whilst they do not suggest that lectures are an inadequate form of delivery of information they do suggest that other teaching methods should be used in conjunction with lecturing, such as buzz groups, problem-centred groups, controlled discussions, case study methods, short talks by students, audio (and visual) delivery as well as reading. It is this questioning of the effectiveness of lectures which is the genesis of flexible learning.

Scott suggests that in order to design an effective flexible learning strategy, it is vital to have a picture of the core components and design options that will make up the flexible learning program. He goes on to suggest the following framework, which is summarised, in a legal skills and vocational training context below:[34]

• Learning objectives and content—setting objectives is simply derived by understanding what levels of knowledge and skills students completing their PLT are to possess. Content can be derived from a variety of sources. In regard to PLT, real life legal scenarios are most often used.
• Timing—decisions about the length of the program need to be made. In the UTS case, the program runs in parallel with the normal semester as students are more comfortable with this time frame and it is in line with the rest of the university administration. External accreditation may also force time limits upon programs.
• Learning sequences and subjects—learning sequences can be grouped in modules or linked. In the UTS program both occur. For example, the six core subjects are taught in modules grouped under their respective subjects while the legal skills component is linked to all of the courses taught in the program. Professional Conduct (Legal Accounting and Professional Responsibility), while comprising discrete subjects, is also linked with other subjects taught in the program.
• Learning mode(s) and location(s)—learning can take place by a variety of modes, such as, by telephone, via computer network, in various sizes of groups, and at various locations including a student’s home. This area of learning modes and locations presents the greatest challenge for legal skills and vocational training. With the use of technology, plans are being formulated that may see lectures available via a multitude of sources, such as video, at a time which suits the students. Also, computer access via the internet will see students being able to log on for the current lecture, again at a time that suits them.
• Teleconferencing will see the seminar program include students in geographically remote locations as well as those who have difficult work hours or family commitments to consider. UTS Online has enabled students to contribute to topics by accessing the bulletin board and making a contribution based on the discussion that has developed under the topic heading.
• Additional course materials will be available via the internet, so students can conduct their research from any point in the world providing they have access to a modem. The use of computer simulations will open up a new world of flexible learning in PLT, as students participate in simulated court hearings, and commercial and property transactions with a simulated client or court who will respond in accordance with the students’ skills. While these learning strategies sound like something out of the latter 21st century, they are legitimate flexible learning strategies that are being considered today.
• Teaching and learning strategies—alternative ways to deliver teaching and learning may include the traditional modes of delivery as well as buzz groups, brainstorming, simulations, role plays, demonstrations, experiments, individualised instruction, problem-based learning, computer-assisted learning, field trips, and tele and videoconferencing.
• The current UTS program already uses a variety of flexible teaching and learning strategies such as panels, group discussions, fishbowls, simulations, demonstrations, role plays, field trips and computer-assisted learning. The challenge is to find the right blend of these strategies and be flexible enough to change the strategies depending on the group learning objectives and abilities.
• Learning resources and technologies—resource and technology requirements depend upon the learning strategies to be adopted by the institution. Suffice to say, the vast array of resources and technologies to be employed may include: film, video, audio, transparencies, charts, computer graphics, CD-ROMs, networks, employers, guest lecturers and field sites, to name but a few.
• Learner recruitment and access—learner recruitment is necessary through the traditional forms of communication such as advertising, careers markets and the active legal grapevine. The challenge is to reach those in geographically remote areas who may believe that access to PLT is something that will ultimately prevent them from studying law.
• Assessment—involves a flexible approach to assessment that usually involves a series of assessments. The UTS program is reflective of this attitude. For example, in the subject Advocacy, students are assessed (or feedback is given) on a reflective journal from a number of court visits, a series of practice courts including a basic defended matter, a bail application, a plea of guilty, two interlocutory applications and a video test where students comment (under examination conditions) on excerps of both examination in chief and cross-examination from a case study used extensively in teaching the subject. The subject Legal Skills and Professional Awareness utilises a video-recorded interview, negotiation exercises, drafting assignments and class participation. Other subjects utilise seminar papers and presentations, practice file simulations and reviews, class participation and examinations as the assessment criteria.
• Program evaluation—programs can be evaluated before, during or after the program. The UTS program was (and is) very fortunate to have the co-operation of the University’s Institute for Media and Learning (formerly the Centre for Learning and Teaching), who conducted a thorough evaluation of the first course in PLT (the pilot course). The pilot course evaluation involved a series of questionnaires and focus groups run every four weeks throughout the program. Thereafter, the Institute has conducted an evaluation of each course, in addition to individual teaching appraisals, at the conclusion of the program. Ongoing evaluation is a very important element of the whole idea of flexible learning. Because new ideas are being tested, student feedback is vital. After each PLT program, certain adjustments have been made to the subsequent course based on the evaluation process.
• Program management—administrative support is vital to a program of flexible learning because of the resource intense nature of any such program.

The UTS Faculty of Law was recently the beneficiary of a modest internal grant to help integrate flexible learning strategies into the part time PLT program. The Faculty was also successful in gaining a NSW Public Purpose Fund[35] grant for capital expenditure associated with the new off-campus PLT course. The strategy formulated for the implementation of the internal grant is to provide some ‘first level’ flexible learning strategies. These are: the alternative delivery of lecture material by way of video and audio tapes; the implementation of the UTS Online system to facilitate seminar presentations by students; the transfer of all course materials to internet format assessable via the faculty home page; and the making of several video productions which assist students in the learning of practical tasks.[36] By and large, each of these strategies was achieved by the beginning of 2000.

The second level of flexible learning strategies will be the development of computer network links for seminars, then teleconferencing for seminars and computer simulations. This second level of flexible learning strategies is expensive and time-consuming to develop and therefore it is difficult to determine when it will become part of teaching the UTS program.

The impact that flexible learning has on the enhancement of quality legal skills and vocational training is enormous. Alternative delivery patterns of information, particularly those that are dictated by the student’s availability, will reduce the face to face hours required to teach a course in PLT. Deflecting the appropriation of information from traditional methods, such as lecturing staff, to, for example, computer-assisted processes, will reduce the resource drain being felt with the yearly rounds of government funding cutbacks. Students will have the benefit of early delivery of information, or more to the point, delivery at an appropriate time in their learning strategy, rather than being forced to attend learning sessions which they may not be ready for. The flexibility of learning strategies also means that students learn at their own pace, which translates into more motivated students. In other words, it is arguable that learning should proceed when the student wants to learn, not when the student has to learn by virtue of timetabling issues within the institution. Given the switch in motivation, learning should become more efficient, so that quality is maintained (if not enhanced), while resource commitment is reduced.

Conclusion

We started this paper with the presumption that quality legal skills and vocational training equated to a minimum amount of training hours. If law school/PLT providers invested a certain amount of time in a student with a prescribed level of resources, the result would be a law graduate ready to assimilate into the profession. However, a factor that those who prescribe the hours neglect to consider is that students bring to PLT differing levels of skill. In this respect, perhaps accrediting authorities should consider a system of exemptions for prior learning. We recognise, however, that such a system could create an administrative nightmare and perhaps not achieve its desired aim, given the different levels of experience-based learning that are possible. While this paper does not necessarily advocate exemptions from parts of a PLT program, perhaps consideration should be given to a path of PLT that simply recognises prior learning.

The streaming of students, which would enable those students with greater levels of skills to complete their studies in a shorter period of time than others without the same skills levels, is not a new idea, but would mean that only those students who are fortunate enough to have gained those skills, usually through the workplace, would have the benefit of the ‘faster track’ PLT. In order to see a retention or increase in the degree of quality, while at the same time seeing a rationalisation of resources, and to ensure that such gains are experienced across the entire program, it is necessary to be able to offer learning strategies which will achieve the aforementioned goals.

The four learning strategies discussed in this paper will enhance skills to the point where students should experience an increase in the quality of their learning whilst maintaining, or even reducing, the current level of resources required by law school/PLT providers.

In the case of experience-based learning, students can expect a greater understanding of subject matter when they have a prior understanding of the task, or where they apply the learning while actually working in a law firm or legal department. This learning strategy is enhanced when the experienced-based learning takes place contemporaneously with the theoretical learning.

Computer-based learning will assist students to learn at their own pace and therefore will help the streaming process. Those students who wish to spend greater amounts of time in order to complete their study requirements sooner, and who can cope with a faster delivery of information, perhaps due to their experience in the workplace, can do so, whilst students who wish to take the traditional amount of time to complete their studies may also do so. Further, students may have the option to complete an advanced stream of study which will better prepare them for the workplace, yet require the same amount, or negligibly more, resources.

The learning in groups strategy also assists in reducing resources whilst enhancing quality. Groups tend to promote a willingness to share ideas as well as a sense of academic rigour which assists in the maintenance of quality learning, yet are no more resource intensive than not having groups. In fact, it could be said that learning without groups is more resource intensive because of the substitution required to generate ideas or to maintain academic rigour. A benefit of the group learning strategy is the well being of belonging to a social group. This must also have a positive effect on enhancing quality, because without groups, it would probably be resource intensive to try and replicate the same sort of social cohesion.

Flexible learning strategies are vital to this notion of enhancing quality while reducing resources. In the first place, alternative forms of delivery can relieve the pressure on staff, who are an institution’s most important resource. Second, flexible learning is more conducive to streaming students based on experience and aptitude. Finally, student motivation is strongly linked to quality learning, and flexible learning strategies contribute to student motivation, because students feels in control of their learning.

If one accepts the idea that by employing the four learning strategies discussed in this paper, the same or higher quality legal skills and vocational training can be delivered with an actual reduction of resources, then one can move on to propose a framework for delivery.

Such a framework would include a streaming process coupled with the four learning strategies proposed in this paper. If a benchmark of quality is set, let students who are some way towards reaching that benchmark prior to commencing PLT complete the program at their own pace or earlier. To use the affidavit example (for the very last time!), it is somewhat pointless teaching basic affidavit drafting skills to a student who has drafted (under employer supervision) in excess of 100 of them in her or his job as a paralegal. It is not out of the question to teach that student advanced drafting skills, so that she or he is better prepared to enter the profession. Students with advanced skills will without doubt achieve the quality benchmark; the point is, they may achieve it in half the time needed by a student without those advanced skills. We are assuming that many PLT courses do not allow for these sorts of students. Teaching such students theory they already have an awareness of is a waste of resources, and in today’s climate no law school/PLT provider has resources to waste.

It is our belief that streaming, conducted in concert with the four learning strategies, will give law school/PLT providers some flexibility in the provision of legal skills/vocational training. First, they may choose to produce law graduates with a minimum standard of quality using the same resources as those currently used. Second, they may choose to allow law graduates with advanced skills the opportunity of finishing the program in less time, or in the same time but without the same expenditure on resources. Finally, they may choose to produce law graduates with advanced legal skills, whilst still utilising the same resources. Whichever way the law school/PLT provider chooses to produce law graduates, the emphasis should be on quality, not how long students have spent in a classroom.

[1]BA (Macq), LLB (Syd), LLM (UTS), Senior Lecturer, University of Western Sydney,

former Lecturer in Law, UTS.

[2]BA (Macq), LLB (Syd), LLM (UNSW), Grad Cert Higher Ed (UTS), Associate Professor, UTS.

[3] In relation to tertiary academic courses that qualify a person for admission, the Priestley 11 are relevant. For example, in NSW Pt 11, Division 1, r 94(1)of the Legal Practitioners Transitional Admission Rules 1994 states, amongst other things, ‘A person is qualified for admission if he or she has completed: a tertiary academic course in Australia whether or not leading to a degree in law, which includes the equivalent of, p.least 3 years full-time study of law and which is recognised in, p.least one Australian jurisdiction as a sufficient academic qualification for admission by the Supreme Court of that jurisdiction as a barrister, solicitor, barrister and solicitor, or legal practitioner...’ All Australian states and territories set qualifying times for pre-admission vocational training (the so-called Priestley 12 has not, to our knowledge, ever been formally adopted by any state or territory admitting authority). In 1999, Queensland required either five years of articles or (at QUT only) a 31 week full time PLT course (28 weeks course based, four weeks work based); Vic—either one year of articles or (at the Leo Cussen Institute only) a 31 week full time PLT course; WA—one year of articles and a 25 day training program; NT—one year of articles only. In NSW the Australasian Professional Legal Education Council (APLEC) standards have been adopted (in terms of length) by the NSW Legal Practitioners Board—approved courses, p.UTS, the College of Law, UWS Macarthur, University of Wollongong, University of Newcastle, Bond University and the ANU Legal Workshop involve a mix of institutional training and practical experience—there is no provision for articles in NSW although the LPAB may grant a total exemption from PLT for a law student with considerable paralegal experience, although no exemptions will be possible as from 1 July 2003.

[4]Such as in Queensland, Victoria, Western Australia, Tasmania (with PLT) and the Northern Territory.

[5]Keeton, M. and Tate, P., ‘A Boom in Experiential Learning’ in Learning by Experience—What, Why, How, Jossey-Bass, San Francisco, 1978, p.2, quoted in Anderson, B., Boud, D. and Macleod, G., ‘Experience-Based Learning: How? Why?’, Australian Consortium on Experiential Education, Sydney, 1980, preface.

[6]Anderson, B. et al, n.4.

[7]Smith, D., ‘Experience-Based Learning: The Core of Teacher Education’ in Anderson, B., et al. , n.4 p.25.

[8]Johnson, D. and Johnson, F., Joining Together: Group Theory and Group Skills, Prentice Hall, New Jersey, 1975, quoted in Smith, n 6 p.27.

[9]Heermann, B., Teaching and Learning with Computers, Jossey-Bass, San Francisco, 1988, p.14.

[10]Ibid p.14.

[11]Ibid p.47.

[12]Called ‘clinical practitioners’, p.UTS. They are generally practising solicitors or barristers with ongoing experience in the practice of law. They also fill the role of mentors to the students and can advise on a variety of issues.

[13]Ericksen, S., The Essence of Good Teaching: Helping Students Learn and Remember What They Learn, Jossey-Bass, San Francisco, 1984, cited by Heermann, n 8 p.57.

[14]S. Ericksen, cited by Heermann, n 8 p.48.

[15]Heerman, n 8 p.70.

[16]Ibid p.77.

[17]Ibid p.85.

[18]Ibid p.93.

[19]Ibid.

[20]Jaques, D., Learning in Groups, Croom Helm, London, 1984, p.69.

[21]Ibid p.1.

[22]Ibid p.64.

[23]Ibid.

[24]A proposition put by Jaques, n 19 p.71.

[25]Ibid p.72.

[26]Ibid pp. 135—44.

[27]Ibid p.135.

[28]Ibid p.138.

[29]Hill, W., Learning Through Discussion, Sage, London, 1977, cited by Jaques, n 19 p.149.

[30]Scott, G., ‘The Effective Management and Evaluation of Flexible Learning Innovations in Higher Education’ (1996) 33(4) Innovations in Educations and Training International, pp. 154—70, p.154.

[31]Bligh, D., What’s the Use of Lectures?, Penguin, London, 1972, p.13.

[32]Ibid p.39.

[33]Ibid.

[34]Scott, n 29 p.155.

[35]Formerly known as the Solicitors Statutory Fund.

[36]Funding for the video tape project from the NSW Public Purpose Fund was unsuccessful. Nevertheless, the Faculty was successful in gaining a modest internal university grant to help fund this project.