Typos, misspelling, wrong names and inconsistent dates in law school problem questions – they are usually a source of huge embarrassment for law teachers. But they are much closer to the way lawyers often get client instructions. ‘Mistakes’ can teach law students real-world skills responding to ambiguity.
Clients rarely arrive in lawyers’ offices with neatly presented and proof-read statements of facts. Clients rarely have carefully-ordered chronologies. More often than not clients arrive with a collection of notes, receipts and incomplete memories. Lawyers can find themselves in trouble for not sorting through their client’s materials properly.
Lawyers also have a professional obligation to exercise independent, forensic judgment on the merits of their client’s claim. Casting a critical eye over their material, and checking for mistakes, inconsistencies and ambiguities are fundamental to performing that obligation.
‘Mistakes’ and ambiguity are part of the real-world of legal practice. So why don’t law schools expose students to them?
‘I think there is a typo…’
My first exposure to making a ‘mistake’ in setting a problem question was when I included inconsistent dates in two fictional clients’ accounts of an accident. The difference between the dates was significant. Many students’ response was to point out that I had a ‘typo’ in my problem question that I needed to fix.
The concern with the ambiguity was reasonable. Law teachers often spend days carefully drafting and re-reading problems to make sure that they are ‘perfect’. The information that is missing is just enough to let students display why they need to know to provide a complete answer.
Perfection in a problem question is also a sensible goal. Law teachers usually write problem questions to test knowledge or, more specifically, students’ ability to remember case law and legislation. Answering questions about too much missing information in an exam is also difficult.
But it creates another problem: by removing all but the most carefully planned doubt from problem questions, we have taught law students to assume (almost) perfect information in every problem, even outside the law school.
Mistakes and ambiguity are real-world problems
The media and even a former Prime Minister have repeated the anxious mantra about the ‘glut’ of law graduates leading to a lack of jobs, despite evidence to the contrary.
Law schools in Australia and overseas have placed a greater emphasis on developing competencies in graduates to make them ‘workplace-ready’. So what do employers really want?
While a Google search for ‘What do law firms want?’ will produce a mountain of advice from commercial recruiters. But there is more reliable empirical information. Interviews and surveys by law schools in the United States have found that employers put slightly less emphasis on the ability to recall rules and slightly more emphasis on professional skills: teamwork; communication; writing for an audience.
Even more recently, a survey of Australian law firms re-emphasised that they see adapting to clients’ expectations as being one of the most important emerging challenges. Put another way – responding flexibly and professionally to the client’s box of receipts and incomplete memories.
Responding to ambiguity is in the curriculum
The capacity for law students to respond appropriately to problems is an expectation of the Council of Australian Law Dean’s Teaching and Learning Outcomes for the LLB:
- TLO2 asks graduates to demonstrate the ability ‘a developing ability to respond to, ethical issues likely to arise in professional contexts’.
- TLO3 asks graduates to ‘make a reasoned choice among alternatives’. That includes ‘identifying the strengths and weaknesses, advantages and disadvantages, accuracies and flaws in a text, claim, argument or response’.
- TLO4 asks graduates to demonstrate research skills. That includes recognising ‘both relevant and irrelevant issues’.
How can I teach with mistakes?
‘Mistakes’ can teach law students real-world skills responding to ambiguity. They can support the development of competencies expected by employers and by the curriculum. But I am not suggesting for a minute that you abandon proof-reading!
Embedding incomplete, incorrect or simply wrong information into tutorial problems can create some valuable teachable moments:
- It encourages close reading of the problem. In a world where we teach students to expect ‘perfect’ information, there is a tendency to gloss over things.
- Inconsistent accounts encourage discussion about why accounts might differ, what effect it can have on a claim, and how the inconsistency might be resolved.
- ‘Dodgy’ information from a client in a question is the opportunity to discuss forensic judgment and independent decision-making.
Discussing ‘mistakes’ also provides the opportunity for learning through experience or learning ‘by doing’ – something I have written about before.
Rote learning of rules and principles produces technical proficiency, but it doesn’t build the professional competencies employers expect in graduates.