Opinion: Rebecca Samaras

Clinical legal education (“CLE”), with its proximity to legal practice, social justice issues and communities in need, presents an alternative to traditional legal education and has gained profile, importance and authority throughout Europe in recent years, and globally for many more.

What is it, and why should we, as a legal profession and legal educators, support its expansion?

There is no comprehensive definition of CLE. Nonetheless, at its broadest the term has been used to encompass learning which is experiential in design and focused on enabling students to understand how the law works in action by undertaking real, or realistically simulated legal work, and reflecting on the experience. It is, simply put, learning by doing.

CLE is not a new methodology. Originating in the US around the turn of the 20th century, by the 1960s it was fully established and has since played a significant role in mainstream legal education. The first UK and Australian law clinics emerged in the 1970s, with rapid expansion over the past 25 years or so. Support from organisations such as ENCLE and the UK charity Clinical Legal Education Organisation (“CLEO”), which boasts over 300 members, has expanded CLE delivery across Europe, Africa and South America. In Scotland, we have our own vibrant and expanding Scottish University Law Clinic Network, or SULCN.

The findings from a 2020 report by LawWorks and CLEO show that CLE has become a mainstream part of legal education in the UK while supporting law schools’ wider community engagement, indicating strong student interest in clinical and work-based opportunities. Evaluations show that students respond very positively, not just because of the practical knowledge and experience CLE gives them but because of the developmental, affective and problem-solving benefits they feel that they have attained. If they get academic credit for their participation, all the better.

In fact, the report has also demonstrated that increasingly, clinic work is assessed as part of law schools’ curricula. It is well evidenced that the “learning by doing” methodology is a much more versatile and adaptable tool than it might seem, and can complement existing methods of legal education. From skill development, to self-growth, to pure theory, there are ways to make learning deeper, more efficient and more memorable. Creating a safe educational environment in which it is possible to seek new and challenging experiences replaces passively receiving information with an active and immediately memorable experience. How many of us remember what we wrote in an exam years ago? Yet we all remember our first time preparing for and appearing in court, or our first completed transaction.

Although much of the research and practice literature about law school clinics, since the early days, locates their activity within a social justice rather than a purely educational paradigm, unmet demand and the decimation of legal aid services are no longer regarded as primary factors driving law school clinic development, but as part of the context in which clinics now operate. Graduate employability, market expectations, education outcomes and the practical skills focus of CLE, as well as universities’ wider community engagement agendas, may be more significant factors driving development. The increasing role of technology in the justice system is also impacting the debate about the future of
CLE, and indeed legal education.

The approach taken by each university in setting up a law clinic will differ according to the values and objectives in setting up a clinic. Many factors will dictate the type of clinic established. The term “simulation clinic” is used to describe any learning environment that sets out to simulate (some aspects of) the experience of live practice. Done well, a good simulation will create realistic and adequately complex problems through which students can get a feel for practice, both in terms of developing technical knowledge and skills and experiencing the value of conflict and uncertainty that often accompanies professional work.

A live client clinic approach throws up other questions which need careful consideration. A key determinant will be the breadth of supervision and other resources available. This is not just a pragmatic decision. Will students provide full or partial representation? There are clinics offering one or both. Where will the clinic be based: in the university itself or externally, perhaps in partnership with a charity, law firm or NGO? Virtual law clinics and online collaborations are already offered by many of our law clinics. Many will offer a combination of approaches.

Whichever approach is implemented, the value of CLE in providing students with the opportunity to develop the multidisciplinary skills required to navigate our changing world is recognised by many of us in legal education. Clinical programmes have expanded, and students benefit from a variety of innovative clinical learning experiences that have a broader and multidisciplinary focus to respond to our post-Covid-19 environment.