Hammond, Celia --- "Teaching Practical Legal Problem Solving Skills: Preparing Law Students for the Realities of Legal Life" [1999] LegEdRev 9; (1999) 10(2) Legal Education Review 191

Teaching Practical Legal Problem Solving Skills: Preparing Law Students for the Realities of Legal Life

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In 1998 the Law Society of Western Australia banded together with Women Lawyers of Western Australia to commission a consultant to “better understand the reasons for the apparently high rate of people leaving the legal profession” in Western Australia. A Final Report was published the following year.1 The Report investigates why young lawyers, particularly women lawyers, were exiting legal practice within the 3–7 year post admission stage.2 The Report’s findings are not altogether surprising. They show that lack of fulfilment, stress, onerous working conditions and general quality of life issues are the key factors behind the migration from legal practice.
The Report contains 27 recommendations for improvement directed to the legal profession, law schools and legal firms. The recommendations fall into the categories of “Professional Growth and Development”, “Career Improvement”, “Quality of Life” and “Organisational Culture”.3 Four of the recommendations (recommendations 2-5) listed under the Professional Growth and Development category are pertinent to university law schools. These recommendations are that —

(b) consider the practicality of making the law degree a post graduate qualification;

3. work with the law schools to market a legal qualification to students as a generalist qualification useful for a range of career choices in addition to legal practice;

4. discuss with the law schools the possibility of combining articles with the final year of study over a 2 year period;

5. develop a more comprehensive range of structured work experiences for law students during holiday periods.
The recommendations largely target three key critical concerns of traditional law school education: (a) the selection processes for entering law school; (b) the “gap” between traditional legal education and the realities of legal practice; and (c) the need for a law degree to provide a liberal education, rather than be seen simply as leading to life in a legal practice. As between (b) and (c), there is an element of incompatibility. As pointed out by Mack, there is a need to “recognise and reconcile these apparently diverse goals”.4
The criticism that legal education fails to prepare law graduates for legal practice is not new.5 As Mack notes,6 the Pearce Report of 19877 stated that most Australian law schools teach neither theory nor practice, but doctrine. The traditional approach depended upon an “exposition of substantive doctrine” with little or no “practical or critical perspective”.8 One consequence of such an approach was a “sharp contrast” between “university law” and “real life law”.9 Slowly, legal education has changed and is still changing.10 There are more skills-based units, such as Clinical Legal Education courses, more practical and professional ties, and more critique-style units. All this provides for a more rounded educational experience.11
When drafting the Notre Dame College of Law curriculum in 1995 and 1996, the College of Law Advisory Board recognised the competing goals of providing a liberal education, and training professional lawyers. Compulsory core units in Philosophy, Ethics and Theology were incorporated within the curriculum to provide an element of liberal education. To achieve the goal of training professional lawyers and narrowing the gap between legal education and legal practice, the curriculum drafters emphasised the inclusion of “practical” skills and ethics throughout the substantive units of the degree,12 and included a compulsory, third year, one semester subject called “Legal Problem Solving”. This course was designed to be an integrated and practical course where students could learn legal skills such as client interaction and problem solving. To achieve these goals, it was decided that the course should be structured as closely as possible to a “simulation” of the real life world of private legal practice. While the pressures and strains of legal practice are difficult to emulate, it was decided that strict time limitations, group work, and time accountability could assist in the simulation.
In converting the course from theory to reality, there were a number of concerns which had to be addressed. First, the course had to have clear objectives — which were attainable within the time frame and environment. Simulated real life experiences can work up to a point — but there are limitations on what can be achieved where there is no “real” law firm and there is no “real” client. Second, the course was designed to run as an intensive one week experience for the students; this required planning and consideration as to what could and should be expected within that time period. Finally, as with all law subjects, the skills and materials covered had to be “assessable” — and the assessment criteria had to be open to scrutiny and discussion.
With all of these in mind, the key objectives or goals of the course were identified and articulated to the students at the start of the course as being:

In addition to these stated objectives, students were reminded of the ethical and professional responsibilities which lawyers owe to their clients and the profession in general.

The subject was designed to work as a one week intensive course, with compulsory attendance between the hours of 8 am to 5 pm daily. Students were given the option of living in residentially during this time period, and library hours were increased to enable greater access to resources.
Two weeks prior to the commencement of the course, students were given the course outline and a “reader” containing materials covering interview techniques, the lawyer- client relationship, communication skills — oral and written. No text books were prescribed, however students were referred to certain texts as useful and helpful source books.13 Students were strongly urged to do some pre-reading for the course, so that the course could commence and proceed within the time frame.
Given the intensive nature of the course and the fact that the students were to be self driven for the most part, it was necessary to formulate a well structured approach to the week. This was done by the provision of a day to day breakdown of activities. The five days were organised as described below.

This day was divided into morning and afternoon sessions. The morning session was structured as a large lecture and discussion format, and was intended to set the scene for the remaining week’s work. After an introductory session identifying the expectations and goals of the course, half an hour was spent discussing “problem based learning”. Much of the material for this discussion was taken from an article by Blunden.14
Following the introduction to problem based learning, the rest of the morning was divided into four sessions. The material covered in these sessions covered:

All of these topics had been previously incorporated into the assessment regime of other compulsory units, such as evidence, property law, legal ethics, and communications.
Students had been given pre-reading on each of these topics,15 so the sessions were designed to discuss the information and build on it if necessary.
The afternoon session commenced with a large lecture and discussion of “working in a group”. During this session, students were required to identify their concerns with “group work” and different strategies were discussed for overcoming group problems. There was also discussion of group “plans of action” and the allocation of tasks within the groups.
Following the general discussion of group work, students were allocated their groups and “offices” for the week. Each group was entitled to the use of a room within the law school for their general discussion and meeting sessions. The allocation of the groups, done before the course started, took a considerable amount of time. The temptation to allocate arbitrarily, and in some respects reflect the real life work environment, was great. But the overriding concern was that the groups had to be allocated in such a way as to minimise complete breakdown. In this respect, the text by Le Brun and Johnstone16 and a report by Webb17 provided some useful commentary and discussion on the nature of group work.
The groups were eventually allocated (and reallocated several times prior to commencement) taking into account the following factors:

Having taught the student group several times previously, the course co-ordinator was able to accommodate most of these factors. Discussion with other staff members helped with this process.
During the first meeting of the group, the group was required to discuss their views on how they were going to tackle the week’s work, draw up a draft plan of action, and work out the various strengths within their groups. During this time, each group was required to nominate two members of the group to conduct the client interview on the following morning. While all students were required to attend the interviews, only two were permitted to interact with their assigned client.
During the afternoon session, groups were also given their client files. Essentially, the client file was a lever arch file containing information informing them of their client’s name, the time and location of the interview and their individual timesheets. These files had to be submitted at the end of the week, with all of the information required (see “Assessment” below).

During the morning session, the groups were required to conduct their client interviews. There were seven groups and three clients, so two of the clients were interviewed twice, and one three times. The interviews were conducted at 8.15, 9.15 and 10.15, and the groups were required to come and collect their client from a general waiting area. Each interview was permitted to run for a maximum of 45 minutes — which proved to be adequate time for all except one of the groups, which took approximately 55 minutes.
As noted earlier, only two members of the group were permitted to conduct the interview. The remaining three or four members of the group were allowed to sit in as “flies on the wall” — although they were permitted to make notes during the interview. Although some groups discussed taping the interview, most felt that the presence of a tape recorder might intimidate their client in the first meeting, so they chose to take written notes instead.
Two of the objectives of the course were to introduce students to multi-dimensional problems and to require students to research areas not studied by them within their degree at that point in time. The rationale behind both of these objectives was to overcome two inherent problems with legal education: namely, that units such as contract, equity and property are taught as “isolated” compartments regardless of the fact that they are often entwined in legal practice, and that lawyers are often faced with problems raising legal issues not studied in their law curriculum, or studied and since forgotten.
The development of “client problems” incorporating both objectives proved to be the most time consuming aspect of the course preparation. In the end, three problem scenarios were developed for the seven groups to cover. Problem A incorporated corporations law and succession; problem B incorporated a road traffic offence, sexual harassment and unfair dismissal; and problem C incorporated negligence, franchising law and commercial leasing.
Three people were engaged to be clients for the interview simulation. The three actor clients were unknown to the students, in an effort to simulate the first meeting between lawyer and client. The three actors were fully briefed on their factual scenarios — but were not fully briefed on the law. Once again, the lack of knowledge of the law was seen as essential to a good simulation. At the completion of each interview, the clients were required to fill in detailed client feedback forms. These were not part of the formal assessment, but were very useful in gauging how the interview was conducted and the performance of the interviewers.
For the remainder of the morning, the groups met together and consolidated the information they had obtained from their client. One member of the group was to be responsible for typing up a consolidated record of the interview — not a transcript — which was part of the assessment. During this time, the groups were required to consider what further information they required from either their client or other sources before they could adequately address their client’s problems. They were permitted to write a further letter to their clients obtaining this information, and make any necessary searches and requests. Any such correspondence was to be left at a central post office, which was cleared by the course co-ordinator twice a day for days two, three and four of the course, at 10.30am and 4.30pm. Copies of correspondence and search requests had to be included within the client file.
The afternoon session was intended to provide further time for group discussion and consideration of the client’s problem. The groups were required to identify the legal issues which arose on the set of facts gleaned from their clients, and begin the process of dividing up the work and planning time limits and general areas of responsibility.
The groups were given the option of all members researching the entire problem and consolidating the research at the end of the week, or dividing the problem into components — with individual students dealing with separate components. Given the nature of the problems and the time frame imposed, all groups chose the latter option of dividing up the issues.

This day was designed to be a research and discussion day in the library and offices. Each group had a set time during the day when they were required to meet the course co-ordinator in their allocated offices. Each of these meetings was for 30 minutes and proved to be invaluable for both students and course co-ordinator for the purpose of confirming that each group was “on track” with their issues and problems. In addition to this fixed meeting, the groups could meet with the course co-ordinator at any stage during the week, although no substantive law could be discussed at these meetings.
Given that the problems were duplicated to some extent amongst the groups, some general materials were placed in closed reserve so that all students could have equal access to the materials. In addition, there was a library protocol in place, requiring students to return materials after two hour access, enabling other groups access to the same information.
The library was open until 9pm on day three to enable additional access for those students requiring it.

This day was designed to be essentially similar to day three. In addition to research and discussion, groups were encouraged to start writing up their memorandums and letters which were required to be submitted on the following day.
The library was once again open until 9pm. Some groups chose to stay up part of the evening working in the laboratories to compile all of their information.

During the morning, students were required to work in their groups and ensure that their client file was ready for submission at 12.30 pm. Students were advised that no extensions would be granted on their client files and that strict penalties for late submission of client files would be imposed.
Following a long lunch session, the students were required to regather as a large group. During this afternoon session there was general discussion of the week’s program, of whether the objectives were met, and of the general problems encountered by the groups. Most students were completely exhausted by this stage, and some tempers frayed and relationships tarnished, however the discussion was an essential part of the week’s activities.

Each group was required to submit at the end of the intensive week a “file” on the client (the “Client File”). The items and their assessment value are set out below.

Item	Per cent of mark
Consolidated record of interview with the client	8
Plan of action with respect to tackling the problem; division of responsibility amongst group members and general group interaction.	7
Memorandum to “Partner” re research done on problem and “solution” of problem.	20
Draft letter of advice to client.	20
Any other correspondence entered into by the group with respect to the client.*	3
Time sheet — showing exactly what each group member did and how long the member spent on each activity for days three, four and five of the course. Each student was required to record a minimum of 14 hours of “recordable work”.** While these time sheets were not divided into “six minute” units, students were required to provide sufficient detail of the work that they had done.	2

* If there was no other correspondence, the main draft letter of advice was worth 23 per cent.

** Recordable work was defined as including discussion time, research time and writing time.
Each group was allocated a mark out of 60, and each member of the group received the same mark. There were three exceptions to this.

(i) Individual students were penalised for non attendance at any time during the week. The roll was called at various times, and if any student was absent without an acceptable excuse, they lost 10 per cent of their mark. This deduction would occur every time a student was absent without excuse.

(ii) Groups were permitted to make written submissions at the time of submitting the client file requesting that an individual or individuals within their group receive a lesser mark. It was stressed to the students that it was the responsibility of all group members to participate equally in the exercise and resolve any group dynamics or problems which arose. However, failing resolution of conflict, groups could resort to the extreme position of requesting a deduction in marks. The written submissions had to contain the following:

The offending member would be asked by the course co-ordinator to respond to the written submissions. In the absence of any adequate explanations by the offending member, the assessment agreed upon by the complainants as to the offending member’s participation would be recorded by the course co- ordinator as the offending member’s mark for the Client File.

(iii) If an individual’s time sheet did not meet the course requirement of 14 hours of recordable work over days three and four and the morning of day five, the individual student’s mark would be penalised 10 per cent for every hour the time sheet fell below the required amount. As noted earlier, recordable work included the following:

During the end of term examination week the students were given a two and a half hour examination. Each student was given a set of brief instructions from their “partner” as to the nature of the client’s problem and what was required from the student. The main aim of the examination was to assess whether students had developed the skill of being able to approach an unseen legal problem on an unfamiliar legal area within a tight time frame. An example of an examination question is as follows:

Tarantellas Pty Ltd has just been placed into receivership (privately appointed by creditors). The receiver wants to know if (i) the employees’ contracts of employment are terminated by the receivership and (ii) whether the receiver will be personally liable on any of the employment contracts if the employees continue to work for the company.

You are to spend 2.5 hours researching the above point in the library. At the end of the 2.5 hour period, I want a hand-written report from you containing the following information:

Each student was required to submit his or her own answer and received an individual mark for the examination.

Upon reflection, there are no substantial changes required with respect to the structure of the week as a whole. There are two possible exceptions. The first concerns the first morning, which comprised four and a half hours of lectures. Consideration is being given to the addition of an extra morning session prior to the commencement of the week to enable more interactive discussion and consideration of the lecture topics. The second, concerning the examination, is discussed below.
The length of time allocated to the research and group work on the client problems proved to be sufficient, given that every group managed to comply with the strict deadline imposed on the submission of the Client Files. Similarly, the 14 hour recordable work requirement over days three, four and five proved to be manageable as every student recorded in excess of the required 14 hours.
Of some concern was the fact that a few students recorded in excess of 40 hours on their time sheets for the two and a half day time period. After discussion with the students involved, it became apparent that the excessive time recording was due more to external factors, such as computer failure and the students’ own self expectations, than the nature of the client problems presented. While this absolves the course co-ordinator from any allegation that excessive demands were made on the students, it raises the far more significant and troubling problem of encouraging a more holistic and balanced approach by students to their legal studies and future careers.

All three of the multi-dimensional factual problems worked well, as evidenced by the fact that all groups managed to piece together the relevant law in an intelligent and acceptable way. It is anticipated however, that the ongoing problem with the course will be the development of problems crossing traditional legal compartments which are challenging and yet manageable. To this end, it is considered necessary to develop some professional ties with the course, whereby “real world” client problems can be used. Repetition of problems from year to year will be avoided, to avoid any reuse or resubmission of previous years’ client files.

The mailbox proved to be the biggest administrative hurdle for the first two days, largely because of the greater than expected volume of correspondence and the daily response time which had been promised. While some of the requests had been anticipated, others required more consideration and showed some very lateral thinking by the students. Amongst the myriad of correspondence received were Department of Land Administration title searches, Australian Securities and Investment Commission searches and searches of births, death and marriages.
Despite the administrative headache it caused, the inclusion of the mailbox was an extremely important part of the course. It encouraged students to isolate and refine the information they required to deal with their client’s problem. The correspondence sent through the mailbox was generally relevant, however some correspondence was not replied to on the basis that it was either inappropriate at that point (as in the giving of initial advice) or on the basis that it would take longer than three days for a reply to be received. Only one piece of correspondence was considered completely inappropriate, and upon consideration of the letter and their client’s position, the group in question withdrew the letter from the mailbox. This itself proved to be a valuable learning experience for the particular group.

The allocation of groups and the notion of “group work” was the students’ biggest concern at the outset of the week. Most were reluctant to work in groups, particularly in groups not of their choosing. For some, it was the fear of having to rely on other people; for others, it was the fear of working with people outside their particular friendship groups.
Despite the time spent in dividing up the groups (detailed above), group problems did arise, particularly on days four and five, the “crunch” days of the program. From general observations, and the feedback from students, the problems arose not because of the differing skill levels, but because of the differing expectations of the various students. While some students were prepared and willing to pull “all nighters”, other students were happy to work the 8am to 5pm day and leave the work at “the office”. There were some very visible frictions occurring on days four and five; however, no groups exercised the previously outlined option of reducing a group member’s marks for non performance.

With the day five deadline came the submission of seven fully documented client files. Without exception, each submitted file was presented clearly and logically, with documentation divided into categories including correspondence, research, draft memorandum and additional materials. Given that no instruction had been given as to the manner of presentation of the files, the quality and professionalism of the files evidenced initiative and considered thought by the students.
As noted above, the main pieces of assessment within the file were the draft letters of initial advice to the client and the memorandum of advice to the partner. As to be expected, the most lengthy document was the memorandum to the partner — in most cases comprising 20–30 single spaced pages. Generally speaking, these memorandums were presented in a very logical format, with full use of headings and summaries. Most memorandums contained adequate details of where the information was obtained, and some included photocopies of the relevant legislation. In most cases, the letters of advice were written clearly and in a manner appropriate to the client and the client’s requests. No letters were over three pages long, and they were all formatted in a clear manner — using headings and bullet points where needed.
At the completion of the course, some students expressed concern that the “letter to the client” was weighted as much as the lengthier memorandum of advice, the implication being that size somehow mattered. However, the justification from the outset, which remains unchanged, is that the draft letter, since it is the prime piece of correspondence with the client, is of equal if not greater importance than the lengthy advice to the partner.

As noted earlier, the main aim of the examination was to assess whether students had developed the skill of being able to approach an unseen legal problem on an unfamiliar legal area within a tight time frame. To this end, the requirement of producing a “plan of action” for approaching the problem was incorporated and assessed. In retrospect, this component of the examination should have been weighted more heavily, thereby emphasising the “skill” component of the course. To offset the increase in marks to the “plan of action”, the mark allocation of the draft report should have been substantially reduced, thereby diminishing the frantic nature of the examination period.
An alternative “examination” is under consideration for future courses. This modified version of the examination would still seek to assess the skill of problem solving, but would be presented in a different manner. Under the modified examination, students would be given a transcript of a short client interview and asked to identify (i) the nature of the client’s legal problem; (ii) what the client wants the lawyer to do; (iii) how the lawyer will go about doing it and (iv) any ethical concerns which might be raised by the client’s request. In changing the examination to this format, it is hoped that the skill component of the course will be further emphasised.

As noted earlier, a reflection session was held on the afternoon of the fifth day. Students were required to give both oral and written feedback on the course and their experiences within it. The questions in the written survey form were divided into two categories: questions concerned with group work, and questions directed at the overall unit evaluation. The responses to the group work questions reflected what had been observed during the week. Specifically, some groups encountered no problems at all, while other groups found the group dynamics frustrating, challenging and, by the end of the week, extremely difficult. At the same time, the majority of students indicated that the group work experience was “realistic” and “rewarding”.
With respect to the overall unit evaluation, the feedback from the students was, with one or two exceptions, positive. The emphasis on skills and self regulated/directed learning were generally viewed by the students as being an integral part of their legal education.
Students were also asked whether they had any suggestions for changing the course. Several students suggested that smaller groups be allocated, one student suggested larger groups, and one student indicated no group work at all. A few students thought that running the unit over a longer time period might reduce the stress and pressure somewhat, while other students saw the one week “intensive” nature of the course as an integral and positive part of it.

Law schools should endeavour to appropriately reconcile the competing goals of providing a liberal education and providing professional training within a context of embracing the “public interest” of legal education.18 Such reconciliation involves, amongst other things, consideration of the range and type of units on offer and the manner in which they are taught and assessed.
The Legal Problem Solving course outlined in this paper was designed to achieve but one goal: namely, bridging the wide gap between university legal education and “real life” law. The feedback received so far is generally positive, but the extent to which the goal has been achieved will only be truly assessable with the passing of time and the graduation of the students involved from university to legal practice. While there is only so much that “real life” simulation can achieve, the incorporation into the course of group work and time limits, coupled with the emphasis on skills and self directed learning should help to prepare the ground in some respects for law students intending to practice, if only to raise their awareness as to the expectations, pressures and strains which exist. At the same time, however, changes need to be made to the profession, and the recommendations contained in The Report on the Retention of Legal Practitioners19 should be considered by both the profession and law schools. The need to prepare students for the practice of law should not be emphasised to the exclusion of actually making changes to the profession. Graduates need workplaces which offer a “more diverse, more inclusive, more supportive and more flexible”20 environment.

* Senior Lecturer, College of Law, University of Notre Dame Australia. The author would like to thank the referee for constructive comments on the paper.
©2000. (1999) 10 Legal Educ Rev 191.

1 Law Society of Western Australia & Women Lawyers of Western Australia, Report on the Retention of Legal Practitioners Final Report (1999) 5.

5 See comments and references provided by MJ Le Brun & R Johnstone in The Quiet (R)evolution: Improving Student Learning in Law (Sydney: LBC Ltd, 1994) esp at 12.

7 D Pearce, E Campbell & D Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (The Pearce Report) (Canberra: AGPS, 1987).

9 See the discussion of this contrast in A Goldsmith, Legal Education and the Public Interest (1998) 9 Legal Educ Rev 143, at 144–51.

11 See comments and references provided by Le Brun & Johnstone, supra note 5, at 26–29.

12 In addition to separate Ethics, and Commercial Practice and Procedure courses.

13 R Hyams, S Campbell & A Evans, Practical Legal Skills (Melbourne: OUP, 1998); P Keyzer, Legal Problem Solving: A Guide for Law Students (Sydney: Butterworths, 1994); K Lauchland and MJ Le Brun, Legal Interviewing: Theory, Tactics and Techniques (Sydney: Butterworths, 1996); GD Lewis and EJ Kyrou, Handy Hints on Legal Practice 2nd ed (Sydney: LBC Ltd, 1993); SD Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia 2nd ed (Sydney: Butterworths, 1998) esp at Part 3.

15 Most pre reading was extracted from Hyams, Campbell & Evans, supra note 13, and Lauchland & Le Brun, supra note 13.

17 N Webb, Group Collaboration in Assessment: Competing Objectives, Processes, and Outcomes CSE Technical Report 386 (Los Angeles: National Centre for Research on Evaluation, Standards, and Student Testing, 1994) <http://cresst96/cse.ucla.edu/CRESST/Reports/Tech386.PDF> .