McCall, I --- "Breathing Life into Commercial and Property Subjects: Visiting Practitioners Creating the Right Learning Environment" [2004] LegEdDig 58; (2004) 13(2) Legal Education Digest 14

Breathing Life into Commercial and Property Subjects: Visiting Practitioners Creating the Right Learning Environment

I McCall

[2004] LegEdDig 58; (2004) 13(2) Legal Education Digest 14

[2003] LegEdRev 2; 14 Legal Educ Rev 1, 2003–4, pp 93–113

Providers of pre-admission practical legal training (PLT) aim to equip their graduates with a range of attitudes, skills, and strategies to enable them to function as ethical and competent newly admitted practitioners. An important part of this ‘central concept’ relates to students’ intentions in approaching a learning task — whether they intend to seek meaning and understanding from it, or merely to acquire what they perceive to be sufficient knowledge to complete part of a process. Creating conditions in which students are assisted and encouraged to learn and to adopt the most productive approach to their learning is one of the most important challenges facing teachers. Attempting to do so is an especially important, and often difficult, task in a postgraduate PLT course where the students already have many years of study behind them. This article suggests that providing students with more stimulating opportunities for interaction with visiting practitioners in PLT courses can help create an improved environment for learning in the somewhat ‘lifeless’ world of commercial and property subjects.

Of course there is nothing new in utilising the skills of legal practitioners to teach law or legal practice subjects — higher education institutions and PLT providers have done so for many years. However, the main thrust of this article is that, for PLT students, both the prospect of interaction with expert legal practitioners in ‘real-life’ tasks and the interaction itself, can make a difference to the process of their learning, especially in so-called ‘lifeless’ commercial and property subjects. A consistent challenge in PLT courses has been to devise materials and activities that not only cover the desired content but also, by creating interest and stimulation, encourage students to become more actively involved in their learning. This challenge has been seen in terms of combining theory with planned experience so that professional knowledge and skills can be learned more efficiently.

Whatever the experience of individual students, the aim of good PLT curriculum design should be to ensure that the professional skills and strategies for analytical thinking that students can acquire will be useful to graduates long after the conclusion of the PLT course. The difficulties inherent in teaching and learning in a PLT course that encourages student learning, as opposed to knowledge acquisition, are particularly relevant in parts of the curriculum such as estate planning, will drafting and property, and small business practice, which are viewed by students as less interesting and stimulating than, say, the robust exchanges that are seen to be inherent in litigation practice. From a student’s perspective, it is not difficult to see why.

In further developing assessment activities and reflecting on the teaching and learning process in commercial and property subjects, it was decided to attempt to devise activities to emulate the motivational impetus of the kinds of interactions with visiting practitioners that had traditionally been so successful in teaching litigation. The team of visiting practitioners engaged to assist with commercial and property subjects was made up of practising lawyers each of whom had accumulated many years of experience.

In developing this aspect of the commercial and property section of the course, it was decided to utilise features of two assignments for appropriate interaction between visiting practitioners and students. In one assignment the students’ principal tasks are to: (1) advise the client on the principal issues to be taken into account when planning the contents of a will; (2) draft a functional and effective will in accordance with instructions; (3) explain to the client the basic characteristics of inter vivos and testamentary trusts, including fixed and discretionary trusts; (4) observe the conventions and requirements of drafting and ensuring effective execution of wills; and (5) recognise and observe the ethical and other responsibilities of solicitors in the making and retaining safe custody of wills.

Some of the principal features of the student/visiting practitioner interaction are as follows: (1) One of the first tasks students are asked to do is to prepare a comprehensive letter of advice to their client. (2) On the scheduled date each student ‘interviews’ his or her allocated visiting practitioner as the client. (3) Although the students have general management of the interview, the practitioner selects the parts of the will that he or she requires the student to explain. (4) At the conclusion of each interview, the visiting practitioners provide oral and written feedback to the students on their drafting, interviewing techniques and explanations, in accordance with specifically referenced criteria.

In the major assignment, the students’ principal tasks are to: (1) act for the purchaser of a small business; (2) advise the client concerning the advantages and disadvantages of appropriate entities; (3) identify and undertake the necessary searches and inquiries on behalf of their client; (4) analyse and further negotiate the contract with the vendor’s solicitor; (5) undertake the procedures necessary to transfer or assign all relevant assets of the business; and (6) attend on settlement of the transaction with their visiting practitioner to finalise the purchase.

In the initial class discussion, the students analyse the contents of the file in small groups and collaborate to identify the need for further instructions and recall their existing knowledge about the applicable law and practice. Perceived problems and areas requiring further research are identified and emerge in the class discussion. During the course of the transaction, the students interact with the lecturer, who takes the role of the client purchaser and an allocated visiting practitioner, acting as the vendor’s solicitor.

Students are encouraged to try to keep on top of their matter and, in particular, to deal with any instances of delay by their visiting practitioner, just as they should in practice, by telephoning, faxing or emailing the practitioner to see what the problem is and get an idea of when they can expect an answer.

When student interaction with visiting practitioners was developed in the commercial and property assignments previously described, questions were added to the course evaluation document that were designed to compare a student’s rating of their interaction with visiting practitioners in the litigation component of the course with that in commercial and property assignments.

Overall the students’ evaluations of visiting practitioners’ interactions with them in the commercial and property assignments were encouraging. They suggested that the number of students that had reacted positively to visiting practitioner engagement in the small business transaction was at least close to the number that reported a similar positive reaction to the visiting judges and practitioners’ involvement in the court appearances. The evaluations suggested that the students were approaching the commercial assignments motivated to perform at an appropriate level — adopting a ‘deep’, as opposed to a ‘surface’, approach.

The students’ assessment of the visiting practitioners’ contribution to their learning suggested that the prospect of their interaction with visiting practitioners motivated them to perform at an appropriate level and, therefore, should have made the tasks themselves more meaningful. It is suggested that the challenge for those designers of commercial and property assignments in PLT courses, who wish to get the best out of the wealth of available expertise and enthusiasm of legal practitioners, is to devise appropriate assignments that involve meaningful interaction with those practitioners. By doing so, they can provide stimulating opportunities for students to learn from the ‘real-life’ element that visiting practitioners can bring to the ‘artificial’ PLT world.