Constructing Competence: One Student’s Experience in Legal Education

Since entering law school, people have told me their personal “horror” story regarding their experience with a lawyer. They generally follow the same narrative arch: “I paid X amount of dollars and the lawyer did nothing for me. They were so incompetent!” As I often stand steadfast in the defense of my chosen profession, there is a voice in my head that whispers, “maybe they’re right”. Though the law society has formed a comprehensive definition of competence, in my experience, there has been little done in the rearing of new lawyers to meet it.

The Law Society of Upper Canada has provided a broad definition of competence under rule 3.1-2. Among other things, it includes problem solving, advocacy, analysis, application of the law to the relevant facts as well as practical skills such as writing and drafting, negotiation, alternative dispute resolution and legal research. But how is this taught?

Within the law school curriculum there is little attention paid to developing fully competent lawyers. From the student side, the most common complaint is that there just is not enough practical education. Courses are overly academic, taught by few practitioners, with little opportunities to develop practical skills. There is no question that that a theoretical education is essential to the practice of a competent lawyer. However, the issue remains, many students feel woefully unprepared for other aspects of practice as they leave law school.

A glaring issue of law school is that final exams do not teach students to be fully competent. After a semester long “data dump” of information, most courses culminate with final exam. In fairness, finals develop skills in legal issue spotting and the ability to synthesis large swaths of substantive knowledge. However, they do little to develop skills in oral communication, legal writing and drafting. They do not engage skills like client interaction, practice management or legal research. Also, they don’t do enough to help students retain the substantive knowledge required to practice in the field. But there are alternatives.

In my experience, the “flipped classroom” provides a better method of teaching without excluding the benefits of final examination. A flipped classroom is the teaching of law through weekly assignments, based on class material, involving practical legal skills such as memo writing, drafting and interpreting legislation. It requires the students to listen to lectures before class and apply the concepts during. Once I left this setting I genuinely felt confident and near competent within that area or law. For me, this is a foreign feeling but a guiding light to solving current issues in teaching full legal competency. However, school is only the first step.

In Ontario, bar admission practices do little to dislodge the teaching pitfalls of legal programs. Bar admission courses in Ontario require two things, the purchase of materials and the filling of a bubble sheet. Again, the method of mass evaluation is applied, and again no attention is paid to practical skills. It seems to be another kilometre in the conveyor belt of legal education. This method is geared toward mass production and does little to improve full legal competence.

Conversely, other jurisdictions appear to engage with the issue of full competence. In Nova Scotia there is a combination of examination and course work to ensure competency in all aspects of legal practice.[1] In Alberta, the bar admission program is not evaluated through examination but rather course work alone that ensures a similar holistic legal competency.[2] Whatever the combination, outside Ontario there is an earnest attempt to ensure basic legal competence.

Articling is often held as the practical element of legal education, yet it is an imperfect solution. It is well known that there is an “articling crisis” in Ontario for new graduates. There are just not enough positions for us. Even once a position has been found there is a spectrum of experience that one could have and very little to ensure uniformity. There is no guarantee that a young lawyer be will be taught to meet the definition of competence laid out in the law societies rules.

Thankfully there are new approaches that give hope. The Law Practice Program offers students the ability to complete a placement while being trained in practical aspects of firm management.[3] Alternatively, the Bora Laskin law school provides a combination of theory and practice that allows students to complete their articling requirement while realizing their degree.[4] Each program has their dissenters, but both offer initial ideas on how a uniform core competency can be taught to incoming lawyers in a field atrophied by tradition.

Ultimately, It will be up to the every individual lawyer to meet competency guidelines set by their legal jurisdictions. However, it is in the best interest of all law societies, and society in general, to produce an initial foundation of basic competencies that come close to meeting those in the regulations. Currently, in Ontario, the focus on developing competency does not match the focus on defining it.

—

Sunil Sharma is finishing his third year of law school at the University of Ottawa. During law school, he has been involved in both the University of Ottawa Community Legal Clinic and Employment Insurance Litigation Clinic. In his limited free time, he fronts a law school band named Good Faith. After law school, he looks forward to starting his articles at McInnes Cooper in Halifax. This piece was written as an op-ed assignment in Professor Adam Dodek’s Professional Responsibility Class.

________________________

[1] Nova Scotia Barristers Society, “Bar Exam”, (2014), NSBS, online: <http://nsbs.org/become_a_lawyer/bar_admissions/bar_exams>; Nova Scotia Barristers Society, “Skills Course”, (2014), NSBS, online: < http://nsbs.org/become_a_lawyer/bar_admissions/bar_exams>;

[2] Canadian Centre for Learning and Legal Education, “The CPLED Program”, (2014), CPLED, online: <http://www.cpled.ca/about-cpled/the-cpled-program/>

[3] http://www.lpp.ryerson.ca/?page_id=7

[4] https://www.lakeheadu.ca/academics/departments/law/curriculum