1.9 The “How” of Work-Informed Learning

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 judgment 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. Rubrics, grades, and problems in fixed contexts (eg, hypotheticals) can give the impression that human conflict is much neater than it inevitably is in real life.

Self-Directed Learning

Self-directed learning is a concept closely related to taking responsibility for a student’s own learning. One of the key themes of work-informed learning placements is self-directed learning. This is a concept with many meanings and applications. Importantly, it does not mean unsupported learning.

In many work-informed learning contexts, students are asked to set learning goals for themselves. This might occur formally with a pre-formulated “learning agreement” or another document. It might be informal through discussions with a supervising lawyer. It might be implied in assignments such as reflective writing or journaling. Sometimes, students set their own goals and engineer their work to meet as many of their goals as possible.

As the name suggests, self-directed learning focuses on the student’s ability to direct their own learning. Popular beginning in the mid-1970s, this idea posits that learners (especially adult learners) benefit from setting their own goals and planning what they would like to learn.

Critical pedagogical theorist Jack Mezirow argued that the concept of self-directed learning should focus on the capacity of learners for critical self-reflection and, ultimately, changing their lives. (Jack Mezirow, “A Critical Theory of Self-Directed Learning” (1985) 25 New Directions for Continuing Education 17). Clinical and experiential learning relies heavily on this notion, largely because students are placed in situations that impact real people or simulate live client environments. Students are expected to take on a professional role, use professional judgment, and learn from experience.

Lawyers are also required to be lifelong and self-directed learners. In Ontario, for example, lawyers are required to complete Continuing Professional Development annually. Specifically:

Lawyers and paralegals who are practising law or providing legal services must complete in each calendar year at least 12 CPD Hours in Eligible Educational Activities consisting of a minimum of 3 Professionalism Hours on topics related to professional responsibility, ethics and/or practice management and up to 9 Substantive Hours per year. Effective January 1, 2018, lawyers and paralegals must complete the CPD Equality, Diversity and Inclusion (EDI) Requirement. Lawyers and paralegals must complete a total of 3 Professionalism Hours that focus on advancing equality, diversity and inclusion in the lawyer and paralegal professions between January 1, 2018, and December 31, 2020. Each year thereafter, lawyers and paralegals must complete 1 Professionalism Hour that addresses issues of equality, diversity and inclusion. These hours count towards the 3 CPD Professionalism Hours required each year.

Part of self-directed learning is setting learning goals. The practice of goal setting is common in other professions such as medicine, business and social work, but the idea is still relatively uncommon in law. Perhaps because it is somewhat counter-cultural in law, drafting learning goals can be very difficult. Many students have not had the chance to direct their own learning. Students might also not be quite sure what to expect in any particular placement. This coursebook gives some ideas about what students might want to learn, but the most important is re-visioning yourself as being in the driver’s seat of your own learning. The context in which learning takes place is, of course, never individual (especially in clinical and experiential learning environments). However, the student plays a much more directive role in these contexts than, for example, in a class with mandatory readings and a 100% final exam.

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… 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.