Reflective Practice in a Lawyering Context

Introduction

How do lawyers know when they have done something right, and how do they know how to repeat it, especially absent external feedback? How do legal professionals learn from mistakes? How do lawyers understand the implications of their actions (both short and long term), and how to minimize harm? How do lawyers operate successfully in an environment of legal, social, political, ethical and interpersonal uncertainty? How can lawyers confront their biases and consistently improve over a lifetime of professional practice? One essential component in answering these questions is reflective practice.

From early childhood, humans begin a natural process of reflective practice. Indeed, we would not survive without it. This section examines the practice of reflection as a professional skill essential to lifelong learning and professional excellence.

Reflective Practice as Professional Skill

Although reflective practice is useful in all aspects of life, it holds particular importance in self-regulated professions such as law. In these contexts, the lawyer’s ability to evaluate and critique their work from individual and systemic perspectives is essential to maintaining the client’s and the public’s trust. Long recognised as an essential skill in professional practice in other disciplines, reflective practice is increasingly understood as a core competency in Canadian legal education and practice. Law schools (and, indeed, law practice regulators) have begun incorporating reflective practice in various classes and clinical and experiential contexts.

The Law Society of Alberta, for example, encourages Alberta lawyers to develop reflective practice. To do so, the Law Society suggests a “needs assessment.. to build learning objectives and priorities for the year by asking:

• “What activities did I undertake pursuant to last year’s CPD plan?
• Why did I select this activity and how will it help my practice?
• How did each CPD activity improve my competence as a lawyer?
• Did I meet my goals and objectives?
• Is further learning or professional development required in any of the areas identified?
• What will be carried forward to my future CPD plan?”

The Law Society of Alberta also recommends regular, ongoing assessment including:

• “How am I doing with implementing the activities identified in my CPD plan?
• Were the activities selected beneficial?
• Did the activities selected have the intended effect, tangible or intangible?
• Did the activities selected have unintended consequences, positive or negative?
• Am I meeting my CPD goals as set out in my CPD plan?
• How are the activities I am engaged in enhancing my competence and the quality of legal services that I deliver to my clients?”

While this text relies on Western conceptions and research on reflective practice, it is a long-held cultural imperative in other cultural traditions, including Indigenous ways of learning . Darren Thomas describes reflection as an important part of Haudonosonee (Hodinosohnih) learning:

“Reflecting is another key aspect of attaining knowledge. The Hodinosohnih believe that since the Creator has provided each of us with our own minds, He inherently made a connection between our minds and His; therefore, we have the ability to think for ourselves. Discovering what and how we can contribute to knowledge happens through a deep reflective process.” (Darren Thomas, OGWEHOWENEHA: A Hodinohso:nih research methodology (MA Thesis, Wilfred Laurier University, 2012) [Unpublished, on file with author] at 53-54.)

In clinical and experiential contexts, reflection is essential. It is sometimes stylized and assessed in the form of reflective journals, in-class discussions, guided exercises, case rounds, and so on. Sometimes it is more informal such as in collegial discussions about a client intake. Sometimes it takes place in individual reflection, meditation and self-analysis. Hopefully, students will experiment with some or all of these during their placement.

Schön & The Paradox of Becoming a Professional

Donald Schön is likely the most cited theorist in Western professional legal education (and perhaps medicine) regarding reflective practice. Schön himself was not a lawyer, but wrote more generally for professional and applied learning contexts. His work is helpful in understanding why reflective practice is so important in the earliest days of becoming a professional. He also positions applied approaches to law as essential in learning lawyering, particularly as juxtaposed with what he calls “technical rationality”.

Richard Neumann effectively summarises Schön’s key insights as follows:

1. Effective professionals tend to think in similar ways across professions…in all fields, truly effective practitioners think about problems in remarkably similar ways…
2. In all professions, the research emphasis on “technical rationality” distracts everyone from an examination of how professional problems are actually solved… In law, it is the rules and policies studied in doctrinal courses… Schön would have said that… legal rules are only background and context surrounding what… lawyers do… Effective lawyers do not practice law. They solve problems, using law as one among many professional tools. “Thinking like a lawyer” is not the same thing as “solving problems like a professional”…[s]o much energy has been devoted to textual interpretation and skepticism that we actually know very little about how effective lawyers go about solving problems…
3. Most of professional work starts in confusion, and the professional usually cannot develop certainty. At most, the professional can solve a problem, and even then things still might be confused because the professional might not be able to articulate how or why the problem got solved… This is why technical rationality or ‘substantive’ knowledge has severe limits…
4. To unravel “uncertainty, uniqueness, and conflict” in the “indeterminate zones,” an effective professional reflects in action… [T]he effective professional has a ‘reflective conversation with the situation”… How do we converse with a situation? We experiment and see how the situation responds…
5. We know only some of how this conversation with the situation can most effectively be conducted. Part of our ignorance is caused by the professions’ focus on technical rationality, which is easier to understand than the skill of practicing reflectively. We try to hide our ignorance with words of mystery. “So outstanding practitioners are not said to have more professional knowledge than others, but more ‘wisdom,’ ‘talent.’
6. All of this is made harder by the paradox that the process of reflecting-in-action can be explained only in terms understandable to a person who already knows something about how to do it… “[T]o a lay person, [professional] knowledge seems magical, but to a professional it is part of the state of being, so ingrained that the professional cannot imagine life without it. This creates one of the classic frustrations of students who are trying to become professionals. For them, it produces what Schon calls the “paradox of… having to plunge into doing- without knowing, in essential ways, what one needs to learn’ in order to learn by doing.” (Richard K Neumann, “Donald Schon, The Reflective Practitioner, and The Comparative Failures of Legal Education” (2000) 6 Clinical L Rev 401.)

“Can You Learn What You Know?”

A placement context can be a site of struggle as students learn what will eventually become ‘tacit knowledge’; nonetheless, it is a comparatively supported site in which students can begin to craft their professional identity. Schön uses Polanyi’s idea of “tacit knowledge” in a lecture on clinical legal education:

“tacit knowing or knowing-in-action has this property: we exhibit it by the competent behavior we carry out but we are unable to describe what it is that we do. Or if we do give descriptions, they are often wrong. For example, we had a student at MIT who got a Ph.D. in juggling. He had a whole bunch of people learn how to juggle, he videotaped them, and he tried to make models of how they learned to juggle. It turned out often that people would say they used one kind of motion when in fact they were using a very different one. They were not lying. They just did not know… Then the question is, “Can you learn what you know”” I think the answer is yes. But the process of learning what you know is a research process. You have to observe the actual behavior. You then have to reflect upon it and construct a description of it and you have to test that description against further behavior and you could be wrong. Every such construction is something to be tested and the critical feature of the construct is that it’s testable. Which says that clinical education, including legal education, depends on a certain kind of research, without which, in my opinion, such education is unlikely to be very successful. This is research that conducts observational analysis of what competent practitioners do-beginning with the person teaching the course” (Donald A Schön, “Educating the Reflective Legal Practitioner” (1995) 2:1 Clinical L Rev 231 at 243.)

Schon’s analysis gives insight into the problem of professional knowledge, which becomes tacit knowledge through a process requiring reflective practice. His work helps us understand why learning a new skill or profession is fraught with, paradoxically, the inability to explain how you “became skilled”.

This still leaves the question – what is reflective practice?

So, What is Reflective Practice?

Michele Leering’s work is helpful in a legal context. In her article, “Conceptualizing Reflective Practice for Legal Professionals.” Journal of Law and Social Policy 23. (2014): 83-106 (online: https://digitalcommons.osgoode.yorku.ca/jlsp/vol23/iss1/5), Leering sets out elements of reflective practice confirmed through a set of interviews.

Leering posits that an integrated reflective practitioner in a legal context incorporates reflection on practice, critical reflection and self-reflection, all of which take place in a community context and are ultimately integrated with one another. “Reflection on practice” is described as the “‘instrumental’ model” requiring reflection on one’s technique or experience. It is intended to improve one’s technical ability in a discipline and is important in experiential learning contexts, integrating knowledge and skills. Critical reflection must also be used, which might include reflecting on implications of policy or law on people and community. In this context, theoretical approaches are important, particularly for lawyers whose decisions have serious implications for people, societies, systems, policies, and so on. As Leering notes, “it could include ideological critique, deconstructing knowledge, consciousness-raising, unmasking power and privilege, and creating emancipatory knowledge” (96).

Leering then differentiates the “self-reflective practitioner” which for them includes reflecting on values, biases, assumptions, motives, and so on. All this requires integration; one part cannot be severed from another. And all this takes place within community. This last part is the least developed in their approach, but bears further investigation especially because of its connection to many cultural traditions in which community is in many ways inseparable from self.

Reflection also takes practice. Throughout the placement there are endless opportunities to reflect. This text contains some helpful resources to that end, but without integration into one’s professional way-of-being there are only ‘assignments’ that may or may not generate insights over the long term. As Leering writes, “[a]n aspirational conceptualization would be an integrated reflective practitioner who is self-aware and critically reflects on practice and theory as a self-directed lifelong learner, reflects collectively and in community and takes action to improve his or her practice. Reflective practice becomes a “way of being.”