by Professor Daniel Pascoe, Associate Professor, School of Law, City University of Hong Kong
95% [of students’ learning] from Law School will not be used in practice. 95% of practice is not covered by Law School. [1]
Every year … law students graduate thinking that they have been trained for criminal practice, when [in fact] they have not. [2]
Introduction
As these two quotes, one from a prominent scholar and one from a legal practitioner, suggest, criminal law teaching and practice are increasingly divergent in their scope. Is it possible for criminal law educators to achieve a closer synchronicity in their teaching with the present demands of criminal practice, to better meet the needs of prospective graduates and the legal profession?
In a forthcoming article,[3] I discuss aligning the LLB/JD criminal law syllabus more closely with Hong Kong legal practice on the basis of the range of offences taught. In this post, I move from particular criminal offences to ‘active learning’ or ‘discovery-based’ pedagogy.
Whether criminal law becomes students’ primary focus or is a side-concern later in their careers, the traditional teacher-focused pedagogical model, involving legal doctrine transmitted passively through lectures followed by summative assessment in the form of a final examination, is arguably not the most effective way of preparing students for their future careers.[4]
What ought to replace it? In designing and redesigning their teaching practices, criminal law lecturers usually consider the findings of the extant pedagogical literature, the resource constraints of their institutions and the feedback of colleagues and students. However, the voices of legal practitioners are often absent from this conversation.
As a key stakeholder in the law school, the legal profession deserves some consultation not only on the content of the syllabus and the subjects required for entry into practice,[5] but also on the way that the material is taught and learned. Where literature from Hong Kong and the UK has occasionally discussed practitioners’ preferences over legal pedagogy, the assumption has been that solicitors and barristers would prefer more traditional teaching methods to remain in place.[6] Yet few, if any, scholars or regulators have attempted to systematically survey practitioners over their pedagogical preferences.
Seeking input on pedagogy from the legal profession is sensible, especially at a time when educators themselves are questioning whether law schools are producing enough graduates with the necessary skills and aptitude for criminal litigation.[7]
Criminal law is distinct from other areas of legal practice. In particular, its focus on oral communication and courtroom litigation rather than outcomes negotiated away from courts ‘in the shadow of the law’,[8] may demand a distinct pedagogy, even for students studying law for the first time. Here, a survey of legal practitioners conducted in the second half of 2019 sought to shed light on these issues in the Hong Kong context.
The Survey of Practitioners
Through email and the post, I distributed a 7-page self-reporting survey to all the practitioners on the Duty Lawyer Scheme (DLS) list and to all law firms and barristers’ chambers in Hong Kong listing criminal law as a practice area.
The combined DLS and practitioners list produced 23 responses, but I also distributed the survey through a ‘snowballing’ sample to academic colleagues and their own criminal practitioner contacts not appearing on the DLS/practitioners list, thereby returning a further 7 surveys, for a total of 30. Furthermore, I followed up with several respondents through email for clarification on their answers.
Importantly, not all the respondents were practising regularly in criminal law. Instead, the DLS/practitioners list provided respondents working in a cross-section of public and private law practice areas, reflecting the array of graduate destinations sought by Hong Kong LLB and JD students. The median amount of time that the respondents devoted to criminal matters was 60 percent, ranging from a low of 5 percent to a high of 100 percent.
With relevance for the present research, Questions 12-14 of the survey[9] elicited practitioners’ views on approaches to discovery-based learning and other non-traditional active learning models, and their utility for legal practice. The list of options in Question 12 was framed largely around a literature-based survey of pedagogical methods for law first published in 2017, aiming to integrate City University of Hong Kong’s ‘Discovery Enriched Curriculum’ into law teaching.[10]
Several of the suggestions in Question 12 were based on students distilling legal principles from cases for themselves, several involved learning through observation, some involved limited forms of student-led teaching or student-authored publications, some centred on problem-based learning through legal research, while two can be categorized as simulated learning exercises. However, by no means is the following an exhaustive list of discovery-based and active learning approaches to law.[11]
Questions 12-14 read as follows:
12. Regarding teaching methods, which of the following teaching and learning activities would you regard as useful in preparing students for criminal law practice, if any? Tick all that apply:
Court Visits
Problem-Based Learning
Students Summarising Recent Caselaw Developments
Mooting
Mock Trial / Trial Advocacy
Peer Evaluation of Assessment Tasks
Student-Authored Reading List
Field Trip to Correctional Institution
Student-Led Class
Student-Edited Law Journal
Student Submission to HKLRC, LegCo Committee or Newspaper Op-Ed
13. Please explain your answers to the previous question. Your views on this are central to this research project:
14. Reflecting on your early legal career, what other changes to the criminal law syllabus or teaching methods in your first law degree would have helped prepare you better for legal practice?
Results and Discussion
First, the data from Question 12. The 11 listed options gained the following number of positive responses out of 30 surveys, in decreasing order of popularity:
(28) Mock Trial / Trial Advocacy
(27) Problem-Based Learning (‘PBL’)
(26) Court Visits
(22) Mooting
(20) Students Summarising Recent Caselaw Developments
(11) Field Trip to Correctional Institution
(6) Student Submission to HKLRC, LegCo Committee or Newspaper Op-Ed
(4) Student-Led Class
(3) Student-Edited Law Journal
(2) Student-Authored Reading List
(1) Peer Evaluation of Assessment Tasks
In summary, approaches based on the distillation of legal principles from caselaw (court visits, caselaw summaries), learning through observation (court visits, field trip), simulation exercises (mooting, mock trial) and problem-based learning (PBL itself, plus mooting and mock trial) proved by far the most popular among respondents, albeit slightly less so for the field trip to a correctional institution.
Nevertheless, despite the lower number of times the latter option was selected in Question 12, within Question 13’s open-ended responses several respondents chose to reiterate their support for visits to correctional institutions as a vital student learning experience. Visiting clients incarcerated or on remand is a regular part of the criminal defence lawyer’s routine. A visit to a correctional institution provides a taste (however confronting) of what criminal law practice will entail for students considering that path upon graduation.
The overwhelming popularity of mock trials, mooting, court and prison visits and problem-based learning among respondent practitioners is an unsurprising result. These are the stated methods of pedagogy that most closely replicate the activities undertaken in criminal law practice, with its emphasis on client-facing work, disentangling legal and social disputes, and courtroom advocacy. Indeed, only two respondents of 30 explicitly opposed any changes to the traditional, didactic, method of teaching which they had personally experienced.
Among the options presented in Question 12, clearly the most unpopular category for practitioners proved to be the various forms of student-led teaching and publication. With Question 12 asking respondents which teaching and learning activities best prepared students for criminal practice, practitioners evidently took a direct and immediate approach to the question, instead of focusing on the long-term skills development of LLB and JD students (in areas such as research, synthesis, editing, communication and critical analysis).
As professionals who do not deal with law students on a day-to-day basis, practitioners may have been more wary of students’ relative lack of experience with legal doctrine. One respondent solicitor stated: ‘All the student [centred] activities do not help much’.[12] More bluntly, another practitioner added: ‘Know the law first before you tell me what the law is or should be’![13]
It is true that some previous pedagogical scholarship has urged caution in the adoption of student-led teaching activities.[14] Yet on the other hand, undergraduate research is reflected positively in the literature and now has an established tradition in most university fields.[15] In US law schools, and increasingly in the Commonwealth, law students often take part in the knowledge production process either as editors or as authors of scholarship published in student-run law reviews.
Closer to home, the Hong Kong Law Reform Commission actively encourages student input into the law reform process by running an annual essay competition.[16] Student-led teaching and learning activities may still prove beneficial given close guidance by staff,[17] but as the survey results suggest here, they do not prepare students for an immediate jump into the holding cells and the courtroom as well as do observation and simulation-based exercises.
From the open-ended responses (Questions 13-14), the following additional themes emerged. On the whole, the respondents felt that a focus on observation and simulation-based exercises was justified by criminal practice’s dependence upon person-to-person contact, courtroom advocacy and on the way that most trial cases turn on evidential issues.
Discounting mastery of general doctrine and knowledge of individual offence elements, respondents instead perceived immersion or dress-rehearsal as the best preparation for the real thing. As one respondent asserted, ‘criminal law [cannot] be learnt from books’.[18] Another stated that ‘Students of criminal law will never learn until they have to do it themselves.’[19]
Several respondents lamented the lack of mock trial and live-client clinical legal education courses within Hong Kong law schools, costing students the chance to formulate real-life legal advice under supervision, or to practice examination and cross-examination in a simulated courtroom. Previous scholarship has discussed at length the logistical and cultural difficulties in establishing student-run legal clinics meeting public interest and educational needs in Hong Kong.[20]
Be that as it may, one simple means of providing students with an opportunity to develop practical advocacy skills and to help them make decisions on criminal litigation as a future career would be to combine the criminal law and evidence modules, which are invariably taught separately.[21]
Mock trial, mooting, and court visits would fit in neatly as pedagogical devices here. In jurisdictions such as Hong Kong where live-client clinics do not operate, externships (learning through observation) and internships (experiential learning) at prosecution and defence offices and at public interest organisations can help bridge the skills training gap.
One concern is how these more practical teaching and learning activities will overlap and intersect with the one-year Postgraduate Certificate in Laws (PCLL) course offered as a path into local practice for LLB and JD graduates. Several survey respondents identified a potential conflict here. After all, it is the PCLL course that is purposely designed to ensure a supply of ‘ready for practice’ graduates for the legal profession, whereas the first law degree provides a more rounded legal education emphasising substantive legal knowledge and academic skills generally transferrable to other vocations.[22]
At the very least, adopting some of the recommendations of survey respondents would require the reallocation of resources. Are Hong Kong criminal law academics, many trained and practised exclusively in foreign jurisdictions and partially focused on research, the best people to instil practical wisdom and skills for the local context? One respondent had strong opinions on this topic:
The selection of teaching staff … should include more seasoned practitioners than academics. Most, if not all, junior criminal legal practitioners [have] nothing to gain by being taught legal theories rather than real world examples of … criminal practice.[23]
Several other respondents were not quite as forthright, but suggested increasing input from judges and practitioners through guest lectures or as guest assessors.
This may not be the place to resolve the long-standing debate over necessary qualifications and experience to teach in the ‘qualifying’ law degree.[24] Nevertheless, if Hong Kong law schools wait until the PCLL stage to utilize active learning and hands-on approaches to pedagogy, it may already be too late. In a highly competitive and demanding market for training contracts and pupillages, a doctrine-heavy, didactical education can compromise students’ immediate ability to secure an offer, as well as the long-term development of their practical skills and ethical disposition.[25]
Conclusion
As law continues to consolidate its place at the core of the academic canon rather than at the periphery, the divide between legal practice and education has grown.[26] In the 21st century, new teaching and learning methods have become an increasingly common sight at law schools in the common law world. Yet many of the more creative changes in pedagogy are solely designed to improve the ease of teaching, student engagement and the retention of study material.[27]
Clinical legal education aside, recent pedagogical innovations adopted in teaching criminal law are generally not directly aimed at better preparing students for the rough and tumble of criminal practice.[28] The legal profession, while occasionally consulted about the subjects forming part of the qualifying law degree, or the core competencies that those subjects should instil in students, has largely left the selection and implementation of teaching and learning activities to academic staff.[29]
Nevertheless, contrary to the findings of the limited previous literature on the subject, the majority of legal practitioners responding to this survey were not resistant to pedagogical change in criminal law, but rather, they encouraged it. Teaching and learning activities such as courtroom or prison visits, mooting, mock trial, problem-based learning and student caselaw reporting in no way compromise the academic value of an LLB or JD degree. Yet at the same time, they ingrain many of the skills required for criminal law practice, as the results of the survey presented here suggest.
[1] Criminal Defence Lawyer, survey response. [2] Walker A, ‘The Anti-Case Method: Herbert Wechsler and the Political History of the Criminal Law Course’ (2009) 7(1) Ohio State Journal of Criminal Law 217, 219. [3] Pascoe D, ‘The Criminal Law Syllabus and the Realities of Legal Practice in Hong Kong’ (2021, forthcoming) Legal Education Review. [4] Jayabalan S, ‘Teaching Law: The Learner in the Driver’s Seat’ in Alias NA and Luaran JE (eds), Student-Driven Learning Strategies for the 21st Century Classroom (IGI Global 2017); Glofcheski R, ‘Rethinking Teaching, Learning and Assessment in the Twenty-First Century Law Curriculum’ in Gane C and Huang RH (eds), Legal Education in the Global Context: Opportunities and Challenges (Routledge 2016) 134-141; Munn C, A Special Standing in the World: The Faculty of Law at the University of Hong Kong, 1969-2019 (HKU Press) 216. [5] Cownie F, ‘Introduction: Contextualising Stakeholders in the Law School’ in Cownie F (ed), Stakeholders in the Law School (Hart 2010) 9-10; Bradney A, Conversations, Choices and Chances: The Liberal Law School in the Twenty-First Century (Hart 2003) 164-167. [6] Glofcheski (n 4) 134; Gans J, ‘Teaching Criminal Law as Statutory Interpretation’ in Gledhill K and Livings B (eds), The Teaching of Criminal Law: The Pedagogical Imperatives (Routledge 2017) 102; Boon A and Webb J, ‘The Legal Professions as Stakeholders in the Academy in England and Wales’ in Cownie F (ed), Stakeholders in the Law School (Hart 2010) 91 n 138; Solicitors Regulation Authority, ‘Consultation on a New Framework for Work-Based Learning: Analysis of Responses’ (Solicitors Regulation Authority, May 2007) 26 <https://www.sra.org.uk/globalassets/documents/sra/consultations/276.pdf?version=4a1ae8>. [7] Walker (n 2) 219; Toole K, ‘Building Career Readiness for Criminal Law Practice: The Adelaide Law School Experience’ in Diver A (ed), Employability via Higher Education: Sustainability as Scholarship (Springer 2019) 490-491; Amirthalingam K, ‘The Importance of Criminal Law’ (2017) 2 Singapore Journal of Legal Studies 318, 322. For a previous statement to the same effect, see Milner A, ‘On the University Teaching of Criminal Law’ (1963) 7 Journal of the Society of Public Teachers of Law 192, 197. [8] Stuntz WJ, ‘Plea Bargaining and Law’s Disappearing Shadow’ (2004) 117(8) Harvard Law Review 2548, 2548-2549. [9] For the full list of questions and respondents, see Pascoe (n 3) Appendix A, Appendix B. [10] Pascoe D, ‘How Can Legal Education Speak to the Discovery-enriched Curriculum’ (2017) 4(1) Asian Journal of Legal Education 17, 25-31. The Discovery Enriched Curriculum is a university-wide pedagogical framework emphasising discovery, innovation and creativity among students of taught coursework programmes. The stated aim is to provide all students ‘the opportunity to make an original discovery while at City University’. In terms of pedagogy, ‘CityU teachers are making discovery/innovation/creativity a focus in their course delivery to provide a foundation and/or opportunity for every student to make his or her original discovery/discoveries’ (Office of the Provost, ‘Discovery-enriched Curriculum’ (City University of Hong Kong, 2020) <https://www.cityu.edu.hk/provost/dec/>). For recent scholarship on the DEC, see Li JJ et al (eds), Creativity and Innovation in Higher Education (City University of Hong Kong 2021). [11] For further possibilities, see e.g. Pascoe D, ‘DEC and School of Law: Reframing the Coursework Curriculum’ in Li JJ et al (eds), Creativity and Innovation in Higher Education (City University of Hong Kong 2021); The Task Force on Law Schools and the Profession, Legal Education and Professional Development: An Educational Continuum (American Bar Association 1992) 244. [12] Criminal Defence Solicitor, survey response. [13] Criminal Defence Lawyer, survey response. [14] E.g. Easteal P, ‘Teaching About the Nexus Between Law and Society: From Pedagogy to Andragogy’ (2008) 18 Legal Education Review 163, 175-177; Moust JHC et al, ‘Peer teaching and high level cognitive learning outcomes in problem-based learning’ (1989) 18 Higher Education 737, 741-742; Samuels LB, ‘Teaching Women and the Law’ (1995) 13 The Journal of Legal Studies Education 257, 262. [15] Murray JL, Undergraduate Research for Student Engagement and Learning (Routledge 2018) 3-12. [16] ‘LRC Law Reform Essay Competition 2020’ (The Law Society of Hong Kong, June 2020) <http://www.hk-lawyer.org/content/lrc-law-reform-essay-competition-2020>. [17] Grieg A, ‘Student-Led Classes and Group Work: A Methodology for Developing Generic Skills’ (2000) 11 Legal Education Review 81, 88-89, 95; Keenan C, ‘Mapping Student-Led Peer Learning in the UK’ (The Higher Education Academy, 2014) 29-33 <https://pltlis.org/wp-content/uploads/2015/10/Peer_led_learning_Keenan_Nov_14-final.pdf>. [18] Criminal Defence Solicitor, survey response. [19] Criminal Defence Barrister, survey response. [20] Marsh L and Ramsden M, ‘Pathways to Social Transformation through Clinic: Developing a “Social Justice” Culture in Hong Kong’ in Sarker SP (ed), Clinical Legal Education in Asia: Accessing Justice for the Underprivileged (Palgrave Macmillan 2015) 231-232, 241-242; Donnelly S, ‘Clinical Legal Education - Maximising Student Learning and Social Justice Impact’ (Hong Kong Lawyer, January 2014) <http://www.hk-lawyer.org/content/clinical-legal-education-maximising-student-learning-and-social-justice-impact>. [21] Jackson A and Kerrigan K, ‘The Challenges and Benefits of Integrating Criminal Law, Litigation and Evidence’ in Gledhill K and Livings B (eds), The Teaching of Criminal Law: The Pedagogical Imperatives (Routledge 2017) 119-122; In House-Counsel, survey response. [22] Standing Committee on Legal Education and Training, ‘Comprehensive Review of Legal Education and Training in Hong Kong’ (Standing Committee on Legal Education and Training, April 2018) v, 65-66 <https://www.sclet.gov.hk/eng/pdf/final2018.pdf>; Chan J, ‘Legal Education in the Global Context: The Case of Hong Kong’ in Gane C and Huang RH (eds), Legal Education in the Global Context: Opportunities and Challenges (Routledge 2017) 283. On students who do not intend to practise, see Mitchard P, ‘Professional Training in Legal Education: the Case of Hong Kong’ (CUHK Law, 6 July 2020) <https://www.learning.law.cuhk.edu.hk/post/professional-training-in-legal-education-the-case-of-hong-kong>: there [are] a substantial number of law students who [do] not enter the legal profession… But this does not detract from the argument about the desirability of early training – most law students will need vocational training for job applications and knowledge of these skills will also be relevant to many others taking law degrees [who do not go on to practise law.] [23] Criminal Defence Barrister #3, survey response. [24] See e.g. Boon and Webb (n 6) 83; Bradney A, ‘University Law Schools and the Legal Profession: The Academic Legal Profession – Academic or Legal?’ (2004) 2 European Journal of Legal Education 1, 3-7; The Task Force on Law Schools and the Profession (n 11) 245-246. [25] Mitchard (n 22); Toole (n 7) 496, 501; Goldsmith A and Bamford D, ‘The Value of Practice in Legal Education’ in Cownie F (ed), Stakeholders in the Law School (Hart 2010) 157-159. [26] Cownie F, Legal Academics: Culture and Identites (Hart 2004) 199; Standing Committee on Legal Education and Training (n 22) 37, 49. [27] Gledhill K and Livings B, ‘Conclusion: Looking to the Future’ in Gledhill K and Livings B (eds), The Teaching of Criminal Law: The Pedagogical Imperatives (Routledge 2017) 206-207; Livings B, ‘Context and Connection’ in Gledhill K and Livings B (eds), The Teaching of Criminal Law: The Pedagogical Imperatives (Routledge 2017) 139. [28] The Task Force on Law Schools and the Profession (n 11) 233-236. [29] Lasky BA and Sarker SP, ‘Introduction: Clinical Legal Education and Its Asian Characteristics’ in Sarker SP (ed), Clinical Legal Education in Asia: Accessing Justice for the Underprivileged (Palgrave Macmillan 2015) 2; Cownie (n 5) 10; The Committee on Legal Education, Report of the Committee on Legal Education (Her Majesty’s Stationary Office 1971) 47; Boon A and Webb J, ‘Legal Education and Training in England and Wales: Back to the Future?’ (2008) 58(1) Journal of Legal Education 79, 92.