It occurred to me a short time ago that having presented a short(ish – it’s circa 4,000 words) paper at the 2011 Higher Education Academy 3rd Annual Legal Education conference in Edinbugh, I never edited my paper for publication. Now some three years later it would likely be too late for this, however in order to ensure that what I discussed does not vanish into oblivion, I feel that my blog site is an ideal place to self publish. Please note that this is unedited, and so I apologise for any minor (or major!) typos, awkward sentence structures, and other errors!
Law, Criminology, and Criminal Justice Education: Skills and Engagement: The ‘MiniTrial’ project: Engaging pupils and students in mooting and other mock courtroom exercises.
Education and teaching; the pedagogical side of things that Higher Education Institutions do on a day to day basis has always interested me, although it gradually began to interest me more and more as I completed my own postgraduate certificate in Teaching and Learning in Higher Education between 2008 and 2010, when having to hold discussions with other lecturers and tutors about their teaching methods, and having to complete assessments relating to issues such as innovative teaching and assessment methods, engaging students whether in large or small groups etc.
I’ll be the first to admit that at that stage as a young lecturer, having only started teaching in 2007, this was not something I had until that point put a great deal of thought into. I was taught using lectures, tutorials and seminars therefore I taught using lectures, tutorials and seminars. I was assessed through examinations, essays and oral presentations therefore I assessed my students using examinations, essays and oral presentations.
The problem with this is of course, that whilst developing skills in writing essays and presenting information (as well as the associated research skills) is important and useful, it often does not go far enough in developing specific practical skills that lawyers and criminal justice professionals have to use throughout their careers. Nor does it really engage students with the subject area in any meaningful way beyond basic theory.
The Amsterdam Article of the Future
There is a wonderful article written by Anthony G. Amsterdam, who is a Professor of Law at New York University School of Law for those of you that may well not have heard of him, that was published in the Journal of Legal Education in 1984, stemming from a presentation he made at the National Conference on Legal Education and the Profession – Approaching the 21st Century, with the title ‘Clinical Legal Education – A 21st Century Perspective’. I would of course highlight that this is an American paper, however this does not make any difference as the areas from the paper that I would highlight are transferrable to legal and criminal justice educational debates in any jurisdiction around the world. What is particularly strong and relevant within this paper, is that the theme of this HEA conference is about ‘approaching the 21st century’, the very position that Amsterdam adopted in his writing. This may appear initially to be confusing as the paper itself was published in 1984, however to illustrate, here is the way in which the author explained the issue;
“I can put behind us certain debates that bedevilled legal education at the end of the twentieth century. These debates had to do with so-called skills training and clinical legal education – what they were all about and whether they should be taught in law school…. Now that we are in the enlightened twenty-first century, I can happily assume that they have been resolved… please recall that I speak for twenty first century ears, not twentieth.”
From the above, it should be clear to you that Amsterdam was writing from when he rather idealistically hoped we as educators would have reached almost a Utopian standard, where all problems with law, criminology and criminal justice education have been swept aside. I’m sure you’ll agree that we have of course now reached that point…. or maybe not….
So, with a reflective outlook then, it is useful to analyse this article to assess the key points that Amsterdam discussed, and then try to compare them with the actual reality of the situation as it stands today.
From the outset, it should become obvious where we are going with this when look to the very first point Amsterdam discusses from his ‘twenty-first century’ perspective which is:
“…one of the principal ways in which legal education at the end of the twentieth century was too narrow. In those days the criticism was often voiced that legal education was too narrow because it failed to teach students how to practice law, failed to develop in them practical skills necessary for the competent performance of lawyers’ work. We now realise that this criticism… concealed a deeper more valid one… (That legal education) failed to develop in students ways of thinking within and about the role of lawyers – methods of critical analysis, planning, and decision making which are… the conceptual foundations for practical skills…”
He goes on to say after debunking twentieth century thinking:
“In the twenty-first century we realise, of course, that a major function of law schools is to give students systematic training in effective techniques for learning law from the experience of practicing law.”
Now, Amsterdam then goes on to discuss the merits of clinical legal education and in my opinion everything he said, now some thirty years later was and still is valid relating to all law, criminology and criminal justice undergraduate education. The question I would pose at this moment is:
Do you think that now as we stand in the real twenty first century that we have actually competently addressed and resolved these issues on a consistent basis in HEI’s across Scotland?
I would like to clarify, that of course there will be individual examples of good practice in some individual law, criminology and criminal justice modules of some HEI’s, and so universal failure is not an assertion, however through my research what I am asserting is that the examples of good practice are neither the majority, nor indeed consistently applied in HE in Scotland.
An example of a good practice initiative is the Law Wise Law Clinic at the University of the West of Scotland. This was set up in 2010 jointly by Dale McFadzean, one of the organisers of this HEA conference and various members of the Renfrewshire Law Centre in Paisley, and has been a success with positive feedback from all concerned, including the staff at the law centre and the students who have taken part. For this initiative, students in their degree or honours year of the BA (Hons) Law may apply through competitive interview process for a position at the clinic, and if successful will spend a day a week working in the law centre on both administrative tasks as well as assisting in conducting client interviews. This is a good example of the development of clinical legal skills – i.e. what lawyers actually do on a day to day basis. It is hoped that in the future, similar initiatives may be created for other degrees in similar areas at UWS such as the BA (Hons) Criminal Justice.
The problem remains though, that in spite of being a successful initiative, the practical training is still only one day a week, for one trimester in one year of a degree, at one Institution. Is this really enough?
Some educators may quite rightly point out in the past that various professional and practical skills specific to legal education were covered in what would have been the diploma in legal practice, and then further through CPD, now of course the equivalent argument might be presented in the context of PEAT 1 & 2. I would argue to rebut that however that I firmly do not believe that effectively a ‘crash course’ in legal practice is enough to teach and then develop these skills. Likewise, when it comes to specific practical skills in different areas of criminology and criminal justice, many of these are left until either Master level, or indeed not taught at all and left up to the industries taking on graduate trainees.
To illustrate why I do not believe that these current ideas of leaving practical training to this stage is unsuitable, I would highlight this example: It is well established educational fact that ‘cramming’ before an exam only leads to short term memory retention of the concepts in question, and that only long term learning and contextual understanding actually leads to full retention and ability to properly apply that knowledge. It is my assertion that teaching specific law, criminology and criminal justice skills, and engagement of students with the key concepts of these areas, should be viewed in the very same light as this. A one year ‘crash course’ at diploma or masters level may allow us to assess students and the majority to pass the test, however will they really after this be ready to take on the challenge of going straight into employment within the fields of law or criminal justice with well-rounded and fully developed skills? I do not believe so. As professionals in Higher Education, we can and should be doing better in this regard.
Indeed it seems that those at the top of assessing what makes a graduate suitable for employment specifically in the area of law are beginning to take note of many of the points made here. When I was given the task in 2010 of evaluating a variety of modules for a prospective LL.B degree validation recently at UWS, and having to align those modules with the most recent Law Society of Scotland foundation programme accreditation guidelines, I noted that in the most recent iteration of the criteria (in force since 2010), that specifically within the ‘Skills’ section of the required outcomes which now all qualifying law degrees must meet, these are two of the specific outcomes:
- Apply knowledge and analysis
o Creatively to complex situations in order to provide arguable solutions to concrete problems by presenting a range of viable options from a set of facts and law.
- In all formats demonstrate an ability to address the resolution of disputes by a variety of adversarial and non-adversarial skills.
So in what way is this all relevant then, and where is this heading? Well let me refer back again to Amsterdam, in conjunction with the criticisms I have asserted of the current situation with law, criminology and criminal justice education in Higher Education. Amsterdam was saying in his position of looking back from a fictional twenty-first century, that we now, actually being in the twenty-first century should realise that students will effectively learn about areas such as law, criminology and criminal justice most effectively by actually practicing the law. One of the main objections that educators and programme designers may well cite is that they simply don’t have access to a facility such as the Renfrewshire Law Centre, who are willing to enter into a collaboration Neither do they actually have the ability to send a large number of their students into any other relevant firm or criminal justice organisation in order to develop these skills relevant to professional practice.
However this is overcomplicating the issue, as of course for many years our students have in fact being developing these skills themselves, albeit often on a purely voluntary basis through their student law and criminal justice societies. In this regard I am referring to specific activities such as mooting and making use of mock court facilities, when the students will prepare and argue out in practice a fictional adversarial case, often based on real life examples. This is an option that I believe should not in fact be an option. I firmly believe that in order to at least on some level make consistent across law, criminology and criminal justice education the need to develop relevant practical skills, that mooting should be built in to the programme design for all qualifying law degrees, as well as any criminology or criminal justice degree where the student should expect upon gaining employment that they will have to regularly liaise in some way with the criminal justice system (or indeed civil courts). At the most basic level, this practice can be built in to tutorial exercises, where students role-play the parts of prosecution and defence lawyers (if law students), or ordinary or expert witnesses (if criminology or criminal justice students). Perhaps even more appropriately, these exercises can even be used as a form of summative assessment for relevant modules (examples being Criminal Law, Evidence, Family Law, Criminology, Criminal justice, Victimology etc.).
Some anecdotal evidence for you about this purely based on my own personal experience: As discussed earlier, I only began fully considering these types of issues relating to law, criminology and criminal justice education to a serious extent in 2010, and the mooting idea was one grabbed my attention. I had just taken over as coordinator of the UWS BA (Hons) Law degree’s third year ‘Law of Evidence’ module, and put in place a strategy leading towards potentially using mooting as a means of summative assessment. In order to see if it would work as part of an assessment strategy however, rather than leap in head first, I decided in that first year to run the mooting exercises as tutorials only. For the module I ran alternate sessions – one week it would be standard problem questions and mooting preparation questions / legal research in teams, the next week it would be the physical moot where I would act in the capacity of the Judge. This rotated so that by the end of the module, the students had taken part in four separate moots, yet still carried out their other necessary problem based examination preparation style tutorial questions.
In order to assess the impact of this format on the module and to help to ascertain if it was viable to carry this forward for assessment I handed out standard anonymous ‘stop, start, continue’ evaluation forms toward the end of the module – and these are just some of the positive responses I received from the students in the ‘continue’ section:
“The moots are a good way of going over the material and are enjoyable. It gives us an opportunity to practice legal skills.”
“Mooting – a good way to put into practice what we have been taught.”
“The use of the moot style set-up is extremely beneficial to students.”
“Having mooting in our tutorials – it allows us to put theory into practice.”
“The structure of the tutorials (mooting) has given us all a good experience.”
“Tutorial structure – this is more enjoyable than to just answer a few questions. It is easy to copy a textbook or lecture notes to give an answer, the mooting requires the student to have an understanding of the module material and allows them to develop their practical skills in relation to the material.”
“The mooting is the best way of learning. I have learned so much from researching and applying areas of law learned within tutorials.”
“Mooting in tutorials. It is a better learning experience for the student and gives the student a better understanding of the law.”
“Continue the mooting in tutorials as I’ve never done this before and it is a good experience.”
From this feedback as well as how smoothly the mooting sessions all ran, I have taken the decision to progress the mooting to form part of the summative assessment in 2011 / 2012, as it was clear that on the basis of my own trial, the students not only felt that they were developing their practical skills, but that they also appeared to be more engaged with both the module material, and also wider areas of the law and education as a result. Of course I could not yet draw any conclusions on the success or failure of the assessment method yet, as this would involve my having to adopt Amsterdam’s position as being in a fictional future in order to do that, however I cannot foresee at this stage any real barriers or problems that don’t also exist with other more generic forms of assessment such as general group work or oral presentations, and can only see the positives to both the student experience and also the development of both skills and engagement.
Of course until this point, the coverage has been mainly focussed on skills issues with only really a fleeting mention of engagement until the anecdote about my own teaching experiences. So I would now like to discuss engagement in a more detail.
It may not be the case in all Higher Education Institutions, however I have discussed with acquaintances in other institutions certainly the issue of engagement, or rather disengagement. This can either be lack of engagement with the individual subject, or indeed lack of engagement with the law in a wider context. As such, I think that this is something that should be addressed in a bit of detail.
The main question I would have is: Why is there this disengagement and how can we engage students better?
What I would say is this: Get them engaged earlier!
When pupils move on from high school to become students in FE and HE, in many cases they have some degree of contextual background to base their choice of course and subject area on. Degrees in natural sciences and engineering all have a background in sciences and technical subjects taught in schools. Degrees in English, Mathematics, History, Geography and Languages can all be chosen based on subjects pupils have covered in schools. Even for degrees in management there are a range of both standard grade and higher grade subjects that can be taken at a number of schools in Scotland.
But what about law, criminology and criminal justice? Where is the contextual background for students who decide to go on and study any of these areas once they leave school? I would assert that the majority of law, criminology or criminal justice issues that students will have encountered before attending university will have been more relating to law enforcement and courtroom dramas such as Taggart, CSI, Law and Order etc. rather than them basing their decision to study their chosen area on real life relevant and accurate representations of the varied aspects of the world around us in these areas. Once many students actually then begin their undergraduate studies, it is not uncommon to see many visibly detach and disengage as they realise that law, criminology and criminal justice are not all about murders, solving crimes at a fast pace, and shouting in a courtroom, but that there are many more intricate, though perhaps in the mind of a young law student not ‘exciting’ aspects to these areas.
This disengagement is simply wrong, and is something that must be addressed.
There are two initiatives that spring to mind that have taken steps to alleviate this problem in some way, one in England and Wales, and one in Scotland.
In England and Wales there is the ‘Lawyers in Schools’ initiative, which has been running now for twenty years. The policy statement relating to this initiative is:
“Lawyers in Schools places legal professionals in the classroom to work with young people to develop their awareness and understanding of the law.”
In short, there is a formal structure in place at this organisation whereby specific law firms are paired with specific schools whereby the activities are:
“We train the lawyer volunteers, who in turn visit the school that we partner them with. In teams, the volunteers lead small groups in six hour-long, interactive sessions on various aspects of the law.
Our education experts write the resources that the volunteers use. These are designed to foster debate and discussion, as well as to encourage critical thinking from the young people.
The sessions cover a range of legal topics and draw on the volunteers’ legal expertise. We support the volunteers throughout the programme, monitor and evaluate throughout the year and provide a full brokerage service between the business and the school.”
In addition to these activities, the Lawyers in Schools initiative also run two annual mock trial competitions for school children, the first is the Bar National Mock Trial competition, always based in a criminal law context, and the second is a Magistrates’ court mock trial competition.
So this initiative is in effect carrying out what I would propose all HE institutions ought to be doing in legal education i.e. teaching the theory, but crucially also encouraging the practice of the specific legal skills relating to that theory.
However in England and Wales this is not enough, as there is currently only coverage of about twenty law firms and eight hundred school pupils involved at this stage, a drop in the ocean comparative to the number of children in School up and down the country.
In Scotland, we have the Mini Trial initiative, which was founded by the Hon. Lord Kinclaven, and is described by the Faculty of Advocates as:
“…an enjoyable way to learn about the Scottish legal system. They are mock court cases which secondary and primary school pupils act out, using materials devised by one of Scotland’s senior judges, the Hon. Lord Kinclaven.”
The structure is somewhat similar to that of the Lawyers in Schools initiative and is described in this way:
“A single class or school can put on a MiniTrial.
There are also inter-school events. These take place regularly in real court-rooms at Airdrie, Ayr, Dundee, Edinburgh, Kilmarnock & Paisley through co-operation with the local Education Departments, Sheriffs, Sheriff Clerks, Procurators Fiscal, solicitors and advocates. It is hoped to extend them to other areas.
The Faculty of Advocates helps schools to put on MiniTrials, by providing advocates who volunteer to visit schools, offer guidance, and sometimes play the part of the judge.”
In addition to the actual Mini Trial courtroom exercises, there is a regular blog maintained that discusses many areas relevant to Scots law, criminal justice, legal education, and school education issues in general.
The success of these initiatives in England and Wales, and also Scotland, appears to be very high as the feedback from all concerned (pupils, teachers, lawyers and criminal justice professionals) has been very positive, however it has to be stressed that these initiatives are still only reaching a small proportion of schools and school pupils.
The reality though, is that all of these great efforts are still not enough, and I would assert the idea that to put law, criminology and criminal justice on an even footing with the various examples of subjects that link from school to further and higher education such as mathematics, English and sciences; education similar to what is currently being done on a small scale with initiatives such as the MiniTrial project should in the future be provided for within the national curriculum. Only by providing the correct context of law, criminology and criminal justice to the next generation and those that follow will we ensure that all (or at least a healthy majority) of our students will be capable of fully engaging from day one of their undergraduate studies. And combining this early education with uniform, skills based approaches to teaching, learning and assessment as I have suggested with the use of mooting and mock court exercises would in my opinion be the ideal way of tackling both the skills and engagement deficit that can be found in law schools up and down the country. Although in conclusion, perhaps I am being a little bit ‘Amsterdam’ in my optimism that this may happen in the near future.
 Amsterdam, Anthony G.; Clinical Legal Education – A 21st Century Perspective, 34 J. Legal Educ. 612 (1984)
 Lawyers in Schools Website, Citizenship Foundation – Individuals Engaging in Society, September 2011, http://www.citizenshipfoundation.org.uk/main/page.php?377