The Gazette 1979

GAZETTE

SEPTEMBER 1979

ever has been, one single, ideal answer to that ques- tion. No doubt that kind of knowledge, those kind of skills can be provided in a variety of ways or of combinations of ways. Basically though it does seem that two ingredients are involved: one, an academic ingredient; the other, a professional ingredient. The academic ingredient consists of that highly complex body of knowledge, and of the intellectual processes peculiar to it. The professional ingredient comprises those practical skills and professional techniques necessary to apply that body of knowledge in the resolution of everyday practical legal problems. Now, according to the theory of legal education to which we have subscribed, the academic ingredient is best provided by our Universities, our Law Schools, because they are best equipped to impart that kind of knowledge; the professional ingredient is best provided by a combination of Legal Practice Course training and apprenticeship, because they are best equipped to provide that. The first question I want to discuss tonight concerns this latter ingredient — the professional ingredient; the part of legal education that is concerned with the practical skills and professional techniques, without which, as Brandeis J. said, the knowledge of the law and the understanding of its intellecutal processes cannot be applied in practice. It is that part of legal practice that partakes of the nature of a craft. It is the ingredient that we expect to be provided by a combination of legal practice course training and apprenticeship training. What role should each play in providing that training? It seems to me that there are two dimensions to the learning of a craft. The first must be, I think, to acquire an understanding of the instruments, the tools if you like, of the craft, their nature, their purposes, their uses, and their particular application to the raw materials of the craft. And there must also be an understanding of the techniques and skills of the craft itself and of the nature of its raw materials. In the teaching of most, if not all, crafts — from soldiering to plumbing — this part of training is provided in what is now called an "institutional setting", by people who have a specialised knowledge and experience of those particular skills and techniques. And, as part of that training, there is given some practice in the application of those skills, albeit on what might be called "dummy materials", and, of course, in simulated situations. Obviously you do not give a student of surgery a living body to practise on, nor a student of sculpture a flawless piece of marble; nor do you create or wait for a situation of war to give your armed forces some practise in the art of warfare. That part in the professional's education of a lawyer we have assigned to legal practice courses. It is for that purpose that they exist. But, as I have said, there are two dimensions of learning a craft: the other is in the application of those techniques and skills to the actual raw materials of the craft. The raw materials of legal practice are people with legal problems, as the raw materials of medical practice are people with medical problems. People with legal problems are the raw materials to which the lawyer has to apply his knowledge and skills in an endeavour to reach a satisfactory adjustment of those problems. To provide the experience and the guidance necessary to achieve that final stage in the learning of a craft is the work of apprenticeship. It is only to a practitioner of a craft that

one can look for mastery in the handling of the raw materials of that craft. And to learn that mastery himself the student must have the guidance and direction of a practioner. That is the role of apprenticeship. Now all this I have expressed in a most general of terms. A major task confronting us in the immediate future is to reduce it to specific, clearly identifiable terms; to define with precision the respective roles of legal practice course training, and of apprenticeship training; and having done that, to work out how best to co-ordinate them. Roll of Legal Practice Course Let me first say something about the role of Legal Practice Course training. Educationalists tell us that the way to define the role of a course of instruction is to define its educational objectives. It appears that they may be defined in different ways, but one way of doing so, and it is the way we have adopted up to date, is to define them in what are called "performance terms", that is in terms of what the student ought to be able to do at the end of the course that he could not do at the beginning of it. Now in professional legal education a distinction has been drawn between what have been called "legal operations" and "legal skills and techniques"." The expression "legal operations" is used to describe the jobs that a lawyer is called upon to do; for example, to draw up a will, to obtain a grant of probate or of letters of administration, to convey a piece of property and so on. "Legal techniques and legal skills" describe all those varied skills and techniques that are required for the successful carrying out of those operations; for example, dealing with clients, interviewing them and counselling them, obtaining facts from them, collating and analysing those facts and presenting them, whether to a court or to someone else, in as forceful and telling a way as possible. Up to date most of us, I think, have defined our objectives in terms of legal operations. Skills and techniques, we say, we deal with "pervasively". But that usually means we do nothing about them at all. At best, we try in some ill-defined way to give the student some general understanding of them. In preparing the curriculum for a course then what we have done is to draw up a list of jobs which we think the students should be able to do at the end of the course and we set out to teach them how to do those jobs. I, for one, am not at all satisfied that we are right in defining the objectives of Legal Practice Courses in terms of legal operations, leaving skills and teahniques to be dealt with pervasively. I am strongly inclined to the view that we should be defining them in terms of skills and techniques, which may be illustrated through the medium of legal operations, first in simulated situations and with dummy materials, and then later using the raw materials of legal practice. If skills and techniques are not taught in legal practice courses, where will they be taught? Is it good enough to say that the students will pick them up as they go along? Surely that is the very attitude that we are trying to get away from in introducing Legal Practice Courses. I am not at all satisfied that we have drawn the proper distinction between the objectives of Legal Practice Courses and those of apprenticeship. Are not the proper objectives of legal practice courses skills and techniques; those of apprenticeship legal operations?

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