1.6 The What, How and Whom of Work-Informed Learning

The What, How & Whom of Work-Informed Learning

In this section, we explore “from whom”, “what”, and “how” students learn in a work-informed learning context. This section is lengthier than others, but is important in setting out some essential ways of learning that differ significantly from dominant methods of instruction in legal education.

From Whom do Students Learn in WIL?

Given the context in which most learning in law school takes place, the sources of learning logically follow. Students will typically learn from:

1. Professors/ instructors,
2. Colleagues (other students in the program),
3. Career services staff,
4. Mental health professionals,
5. Elders,
6. Alumni, practicing lawyers, judges, other legal professionals associated with the law school,
7. Other staff employed by the law school-coordinated programs.

In work-integrated contexts, learning is quite different from a lecture-style class. Clinic, externships and other placements take place primarily in a real life (sometimes called “live client”) context. Even when a student is doing research or working in an appellate context, the work has real impacts. Because students will be learning from lawyers doing real-world work, students typically need to shift their expectations about where learning occurs, and who is acting as a teacher – either formally or informally.

Writing about learning in a clinical environment, Patrick Brayer notes:

“[S]tudents learn from three main systemic sources: learning from people they work with and for, learning from clients (including the client’s social and professional system), and learning by interacting mentally and emotionally with self. Throughout her career, a practitioner will draw from the resources that are her environment. For example, her supervisors and colleagues, as well as judges and opposing counsel, will serve as a continual resource for information, assistance, strategizing and reflection. One shortcoming faced by many practitioners is the inability to effectively interact with individuals who make up their environment…”

Patrick Brayer, “A Law Clinic Systems Theory and the Pedagogy of Interaction: Creating a Legal Learning System” (2012) 12:1 Conn Pub Int LJ 49.

Brayer describes the clinical environment as a “learning system” in which law students are exposed to the complex milieu and relationships that make up a professional context. The section on reflective practice will engage more deeply with these ideas.

Brayer’s insights about the challenges practitioners face in interacting with others – essentially, recognizing and maintaining relationships – are important. Law school can privilege certain skills – for example, cognitive efficiency and precision, doctrinal analysis, and intellectual analysis. All these are important, but without supplementing these with relational skill, the opportunities presented in a workplace environment will be lost.

Regardless whether students are working in a firm, a court or tribunal, a nonprofit, clinic, or other context, you will be introduced to a range of people who play distinct roles. In most placements, two main people will support your work: Your onsite or placement supervisor and your academic supervisor. There are many other people and relationships essential to a successful clinical or externship placement. A description of these roles is also contained in this section.

Learning from Supervisors

The roles and tasks of a supervisor differ depending on context. In a clinic, the lawyer supervising students is called a clinic lawyer, supervising lawyer, clinic lawyer, clinical supervisor, or other term. This person may also be the instructor in a clinic-connected seminar class. This person is extremely important to the learning experience. Their license is also the auspices under which students are permitted to practice. Supervising lawyers in a clinic play many other roles, depending on the clinic. Alongside supervising students, they may carry their own files, engage in grant writing or fundraising, play administrative tasks, supervise other staff, work in community advocacy contexts, and so on. Sometimes, there is only one supervising lawyer at a clinic. In other cases, there is a team of lawyers acting as supervisors in different legal matters.

In an externship and some clinic programs, an onsite supervisor (or placement supervisor) is the person to whom students report for work-related tasks. This person plays a role very similar to an articling “principal” (the person who will supervise articles), but with different supervision requirements. Students are also working under their supervisor’s license. This person will give assignments, feedback, and generally make sure students get a good experience. Students might also get work from other lawyers, community legal workers, or others. Often (but not always), supervisors do not have training in student supervision. This is not universally true (and, likewise, clinic supervisors often get very little training in pedagogy or supervision), but often the workplace is not primarily an educational context. In contrast, most student legal clinics understand themselves to be primarily a place of education and client service. The degree to which a supervisor understand themselves to be an educator, mentor, role model, etc. varies from person to person.

The student’s relationship with the supervising lawyer or onsite supervisor is essential to a good learning experience. The supervisor is the person students will probably interact with most. This person assigns work and gives feedback. They support the student’s learning goals and deal with issues as they arise. This person might also be approached for a reference letter, career advice, work/life balance advice, or other information outside the strict confines of assigned duties.

The supervisor is also helpful in figuring out how students want to (or perhaps don’t want to!) practice. They are models of professional identity, ethical boundaries, relationships with clients, and so on. Part of the student’s role is therefore to be a keen observer of the onsite supervisor and others in the workplace (see the section on “professional noticing”). Onsite supervisors are a great source of information as students negotiate the substantive, ethical, and professional aspects of lawyering.

Professor Neil Gold describes the roles that supervisors play in a law student’s legal education:

“The supervisor, as guide and role model, should seek to be: thoughtful; insightful; measured-to-person, need and context; learned; holistic; and above all, constructively helpful. The importance of the role of the clinic supervisor in explicating and supporting student learning cannot be understated. This interpretive and reflective modeling and methodology can contribute to students’ lifelong habits of learning and problem solving. In engaging the whole student, her thoughts, feelings, hopes and fears, the supervisor simultaneously engages the already stimulated affect and intellect of the student in her quest to deliver signal service. In this model, the student’s experiences as primary actor and her thinking and feeling about them before action, in action and upon reflection are the focal point for guided debriefings and interpretations by the supervisor and often by the student herself once she has been trained to reflect in and on action.” (Neil Gold, “Clinic Is the Basis for a Complete Legal Education: Quality Assurance, Learning Outcomes and the Clinical Method” (2015) 22 Int J of Clinical Leg Education 1.)

Challenges & Benefits for Supervising Lawyers

The role of supervising lawyer – whether at a clinic, externship, or other legal context – has significant challenges. Many clinicians and lawyers involved in Canadian experiential education are not professors. This means they are typically not involved in the curricular or governance processes of the university. They are often also professionally marginalized. A lawyer at one Canadian legal clinic described some of the challenges as follows:

“I would say that when I came [to the clinic] not a lot of time was spent determining whether or not I was going to be a good educator: people were wondering what my legal skills were. The idea flows from the way that the practical aspect of law has been taught, which is: take individuals, have them go to law school, give them some abstract education, and then plunk them down in a work space, and they will learn how to practice law. I tend to think that that’s misguided, particularly given experiential education theories. But if the number of credits that the two supervising lawyers are involved in teaching were to be compared to the number of credits that a professor at the university was involved in teaching, our course load would actually be higher than most of the professors at the university. But, we aren’t professors at the university, and we aren’t really considered externally as being teachers. We’re considered to be lawyers.” (129)

Many lawyers are paid less and have less control over their daily work than professors. These working conditions are part of other challenges. Given the term model at law schools, students are typically at an externship or clinic for four months at a time. Students must be trained and go through a steep learning process to be able to adequately engage in the work. It requires mentorship, engagement, and energy. This process can be exhausting. As one lawyer notes:

“I think the biggest challenge is trying to figure out how to let go of control [of client matters] while also working to ensure that the level of service that is being provided is sufficiently high for you as a professional to be happy, and I think that that’s a really difficult tension to figure out. I also think that there’s a challenge around just the issue of capacity… the difficulty is the demands of time that are placed on me as a lawyer that are associated with education, and the effect that has on my ability to schedule my file work. ‘Cause I’ll go home, and I’ll think to myself: “Oh yeah. This has to get out. I can put three hours in on it tomorrow.” And then being at the office with ten students coming to ask questions about forty files means I will manage to get forty–five minutes done on it, and it’s not a straight forty–five minutes. I do think that there’s a downside to having this changeover every three months.” (136-7)

Supervision can also bring joy and satisfaction for supervising lawyers. Seeing students learn, create community, work with clients, and grow quickly in a few months can be professionally rewarding. Students often graduate from experiential programs committed to clients and with greater skill. Again, one lawyer notes:

“I also think that one of the benefits is the community that can be created… with students, and not just the sort of, the spark that students bring, but the fact that the people who work together…feel really close and support each other well. And I think there’s sort of, yeah, something special about the work environment…, both with and without students that can be pretty special, and then I think there’s a long-term benefit of being able to see the impact that… work has on people who are doing things that I don’t know that they necessarily would have done were they not to be exposed to the different areas of law…” (137)

More information and tips regarding working with your onsite supervisor are contained throughout this coursebook.

Academic Supervisor

Most externship programs and some clinic programs also have an academic supervisor (typically a faculty member or adjunct professor). This person is employed by the law school to set up placements, develop policy, and support students throughout their placement. This person also usually teaches the externship seminar course that accompanies the placement.

This person will have crafted the placement itself and will help guide students through the learning experience; as such, student feedback on the placements is essential to program improvement.

The academic supervisor can also act as a navigator for law school policy and procedure, as well as act as a sounding board for issues that might arise. The academic supervisor has typically worked with many students new to a legal workplace environment and will have good advice and strategy to deal with issues that arise.

While the work-informed learning environment is comprised of a web of people and relationships, these two positions (academic and onsite supervisors) will guide much of the experience.

How do Students Learn in WIL?

In most common law classes, students formally learn through a traditional set of methods including:

1. Reading (mostly cases, some case commentary, legislation, and perhaps journal articles, CANs (condensed annotated notes),
2. Listening (typically to lectures by instructors or visiting guests, perhaps to colleagues in small or large group contexts, videos),
3. Discussing (in class: large group question/answer regarding class content, small group discussions, outside of class: informal and formal discussion in study groups),
4. Simulated experiences (typically, role plays).

In this section, we set out some key concepts and contexts that depart from these ways of learning. This is not to say that reading and listening are not important ways to learn; they are simply more dominant in a classroom setting.

The following explores:

• Learning from the Land
• Learning in (and from) Uncertainty
• Self-directed Learning, and
• Two Reflective Practices: Learning through Observation, and Professional Noticing

Learning from the Land: Land-Based Learning

In classes and experiences focused on Indigenous legal systems, learning might come from many other sources including Elders, community, and ceremony. Indeed, each student’s cultural and community context will impact how and from where they glean knowledge and understanding.

Many law schools are incorporating land-based approaches to learning, although how deeply and widely land-based learning occurs varies significantly. Wildcat, Simpson, Irlbacher-Fox and Coulthard write,

“Settler-colonialism has functioned, in part, by deploying institutions of western education to undermine Indigenous intellectual development through cultural assimilation and the violent separation of Indigenous peoples from our sources of knowledge and strength –the land. If settler colonialism is fundamentally premised on dispossessing Indigenous peoples from their land, one, if not the primary, impact on Indigenous education has been to impede the transmission of knowledge about the forms of governance, ethics and philosophies that arise from relationships on the land. As Leanne Simpson argues in the feature article of this issue, if we are serious about decolonizing education and educating people within frameworks of Indigenous intelligence, we must find ways of reinserting people into relationships with and on the land as a mode of education…Land-based education, in resurging and sustaining Indigenous life and knowledge, acts in direct contestation to settler colonialism and its drive to eliminate Indigenous life and Indigenous claims to land.” (Wildcat, Matthew et al, “Learning from the land: Indigenous land based pedagogy and decolonization” (2014) 3:3 Decolonization: Indigeneity, Education & Society I-XV at II-III.)

Learning in (and from) Uncertainty

Another common element in work-informed learning contexts is uncertainty. This could include uncertainty about what you will do in a given day, how a client will react, what support you might have, whether a supervising lawyer is available, whether a hearing is adjourned, how a judge will decide on an adjournment, whether or not a given action is ethical, and so on. In fact, much of lawyering takes place in situations of uncertainty.

Dave Cormier researches and writes about uncertainty in education. In this video, and this book, he argues that:

1. Workplaces are full of uncertainty.
2. Uncertain problems are often complex problems that involve people judgement and weighing multiple issues against each other.
3. Uncertain problems often don’t have answers.
4. You can get better at learning for uncertainty, but you have to take responsibility for it.
5. The community of the people in your field are your curriculum.

This degree of uncertainty can be very difficult for some students. As Professor Cormier argues, most modern curriculum is constructed for certainty. There are rubrics, grades, problems in fixed contexts (eg, hypotheticals), classroom discussion that gears toward right and wrong, and so on.

Self-Directed Learning

Reflective Practice

Reflective practice is an essential part of learning. This section briefly introduces two important skills related to reflective practice: observation and professional noticing. More about reflective practice is contained in a later chapter.

Learning through Observation

One essential component of profession learning is the ability to learn through and from observation (or “noticing”). All animals, including humans, learn through observation. Some cultures are more adept at teaching through observation; indeed, it can be a regular, structured part of learning a craft, a survival skill, or other task done by adults in a community. In writing about the learned practice of weaving in a Mayan context, Gaskins and Paradise write:

“1) the learning process takes place in the culturally structured context of ongoing work, and the model’s primary motivation during the activity was [the activity] itself, that is, to get something done other than teaching or demonstrating; 2) the learning was not expected to contribute to the work in any significant way while learning; and 3) the learner was given primary responsibility for organizing the learning task…”

Suzanne Gaskins and Ruth Paradise, “Chapter 5: Learning Through Observation in Daily Life” in Lancy, David et al, The Anthropology of Learning in Childhood (Maryland: Rowman & Littlefield, 2010, at 85-86).

In  work-informed context, learning through observation is often an important first step in understanding how to do a lawyering task. This is particularly true in client interviewing and client counselling, negotiation and mediation, litigation, and other forms of oral advocacy. There are other parts of written legal work in which the student observes precedents or other examples of expected work as a first step in producing their own work. Students might also “shadow” a lawyer or judge to understand a fuller picture of the “life of a lawyer”. Job shadowing introduces many other aspects of lawyering including interactions between colleagues in an office, file management and billing practices, and so on.

Professional Noticing

Rooney and Boud write: “a necessary skill that underpins all professional practice is noticing that which is salient”. Their theory of professional noticing helps frame the practice of learning through observation, as well as laying an essential piece of groundwork for lifelong professional learning. They set out three aspects of noticing: noticing in context, noticing of significance and noticing learning. These aspects are described in the excerpt below:

“The first form of noticing is noticing in context. It is about noticing the scope of practices that constitute a professional domain, and how these are bound together and when/how they manifest in the messiness of everyday professional contexts. This is more than discerning the knowledge features of an isolated practice purged from the professional context in which it occurs, but how multiple practices simultaneously happen in authentic situations. Over time, professionals develop a ‘professional frame’ that enables them to fluently read unfolding and complex episodes of practice and how to act in them… This leads us to a second form of noticing, noticing of significance. In the messiness of everyday activity professionals also meet situations where routine interventions are not viable or appropriate. Professionals also need to be able to readily identify what they should be attending to and what they should do if there is any deviation from what is expected. Rose calls this ‘disciplined perception’ (2014 p.73): to notice aspects of practice in order that it becomes available for them to act on. This noticing builds on but moves beyond, simple noticing in context. It is noticing of significance and judging in action what to do about the unexpected. Goodwin (1994) alludes to this when discussing how of the police officers coded Rodney King’s behaviour as aggressive which justified their subsequent actions. Experienced professionals notice significant deviations from the anticipated flow of events and will initiate responses confidently and without delay. This is also what Mason identifies as marking: ‘a heightened form of noticing’ (Mason 2002, p. 33)…Finally… we need to recognise a necessary third form of noticing: noticing learning itself. In educational contexts, there is much noticing required of students. Learners need to notice what is needed of them, they need to utilise important information and direct their own learning activities in the direction required by a clear understanding of the circumstances they find themselves in, and where they wish to end up. Self-direction and self-regulation are initiated by noticing or are preceded by it… It involves a cycle of noticing, intervening, reflection on the outcome, leading to further noticing, intervention and reflection.”

(“Toward a Pedagogy for Professional Noticing: Learning Through Observation” (2019) 12 Vocations and Learning 441.)

Noticing is closely related to reflective practice, discussed in a later Chapter.