Kay Maxwell [HREF1], Director, Practical Legal Training Unit, University of Wollongong. Email: kaym@uow.edu.au
Julie Pastellas [HREF2], Senior Lecturer, Faculty of Law, QUT. Email: j.pastellas@qut.edu.au
The availability and continuing development of the technology necessary to provide services such as online learning and distance education has a continuing impact on the scope and availability of tertiary education. Students can select where, when and how they want to learn. Through the use of technology, educational institutions are able to attract a more socially, economically and geographically diverse student population than ever before. Nevertheless, the trend for technology to be seen as a saviour for higher education both in social and economic terms is disturbing in some respects. While technology does provide a more flexible learning environment, it does not necessarily offer an equal or even equivalent learning structure for all tasks
In the past, pre-admission practical legal training (PLT) has been delivered in a face-to-face intensively interactive format. As technology advances and PLT programs seek to take advantage of new ways of teaching and learning, questions arise as to the extent to which online learning tools can augment or even replace these traditional modes of instruction. In our rush to the future, are we in danger of losing sight of the goals of PLT? This paper will consider the evolving use of online learning tools in PLT programs and considerations when selecting appropriate tools in the pursuit of authentic learning outcomes.
Friedrich Nietzsche (18441900)
Over the past century, the face of pre-admission legal training has altered dramatically. Where once the study of law centred almost exclusively on a system of apprenticeship, the subjects necessary to gain admission to practice may now only be acquired in universities and similar training institutions. Where once practical legal skills were learned, in the first instance, in the workplace from more senior practitioners, the foundations of these skills are now learned in training institutions from legal educators. In recent years, the rapidly expanding world of educational technology has further muddied the waters of pre-admission legal training and, in particular, pre-admission practical legal training (PLT).
Educational technologies such as those which facilitate the integration of multi-media, a ready access to reference materials, the development of online tutorials, journals and quizzes and even the online submission and (in many cases) assessment of student work have proved a boon to legal education. Most law programs now rely, to some extent, on technology to deliver and administer their programs. In 2003, the Charles Darwin University became the first tertiary institution in Australasia to offer a fully online law degree, using a variety of educational technologies to provide the program to a wide student demographic.
While available educational technologies may readily support the concept of a fully online law degree, it is far more difficult to conceptualise what many would see as the next step in the move towards using technology in legal education. That is, how the available educational technologies may be utilised in the final practical stage of pre-admission legal training. As technology advances and PLT programs seek to take advantage of new ways of teaching and learning, the issue arises as to the extent to which online learning tools can augment or even replace traditional modes of instruction in what is essentially a vocational program. In our rush to the future, are we in danger of losing sight of the true goals of PLT? This paper will consider the evolving use of online learning tools in PLT programs and considerations when selecting appropriate tools in the pursuit of authentic learning outcomes.
In most common law countries, a person wishing to practice law must complete a period of PLT before entering practice. Depending on the jurisdictional admission requirements, this training may be completed either during or after undergraduate law studies. Most commonly, PLT is offered either through a form of apprenticeship known as “articles of clerkship” or through a period of work experience combined with an institutional program of vocational training.
These vocational training programs supplement and often replicate the traditional apprenticeship system by seeking not only to teach the concrete tasks entailed in the practice of the legal profession (such as the ability to draft a contract, to appear in court and so on) but also to engender the professional confidence, values and attributes that are a necessary part of the competent and successful practice of those skills in a legal environment. Much of the learning in PLT is problem based and relies on the simulation of real life scenarios. While all PLT programs differ in content, structure and degrees of simulation, in order to successfully complete a program a student must demonstrate competency in a specified range of practical legal tasks. During the course students traditionally “learn by doing” the legal tasks that a beginning lawyer would undertake in practice but in a learning environment where they receive guidance on how to do the tasks and then feedback from instructors on their performance.
Traditionally, institutional PLT programs were offered as jurisdictional-specific fulltime on-campus courses. However, the impact of globalisation and technological innovation has led to an increasing use of online technologies to support teaching and learning and to a demand for flexibility in service delivery due to changing patterns of work, study and life (Stehlik, 2003, p.15). As a consequence, programs are increasingly offered in a variety of modes, including part-time, distance and online to a larger number of students and over a greater number of jurisdictions.
Attempts to create on-line learning environments in PLT programs have generally focused more on static aspects of learning such as written resources, lectures and frequently asked questions than on the more interactive aspects of discussion, problem solving, skills demonstration and so on. This somewhat limited use of the available technology has not furthered the rich integrated and flexible learning environment contemplated by Cunningham et al (2000) nor has it offered students the novel learning opportunities that are widely available in other law programs. Nevertheless, this conservative approach to online learning in PLT is gradually changing, with one PLT program in Australia marketing itself as an online course and others beginning to use a variety of online tools to support trials of flexible program delivery models.
However, in the move to online courses and online components of courses, care must be taken that the decision to go online is founded on an appropriate pedagogical approach. Although there is pressure from students, employers and universities to offer flexible options and to go online, in some cases that is not going to be the route that fulfills the learning needs of the students and other routes may in fact be more pedagogically sound. So, for example, the writers suggest the approach should be to decide first, why an online option is being considered at all and whether that supports the teaching and learning focus. Only once that question is answered in a way that suggests the suitability of online involvement should the next step be taken to consider what online option would be best in a particular situation. This more considered approach should mean that the decision to go online in any particular situation has a valid learning basis rather than being a reaction to the pressure to go online.
In the Legal Practice Course at the Queensland University of Technology, materials have been available online for some time. However, the first online interactive element was trialed in 2003 when the writers included an online quiz in the Litigation Unit. The success of this trial has led to a more advanced quiz being developed for use in late 2004 and to further online strategies being considered for future courses. At the Legal Practice Unit in the Faculty of Law at the University of Wollongong, an online component which includes the staggered release of responses to student work is currently under trial and is expected to be the first stage of an increased reliance on online tools to deliver selected parts of the program. The anecdotal evidence and feedback from students during and after these trials presents a positive picture for the introduction of online components in these courses. Students generally appreciate the variety of teaching modes; they like the flexibility that allows them to complete the work in their own time and at home.
Although the increased flexibility that these trials may bring will meet the expectations of various stakeholders by allowing students to select the mode that best supports their learning style and general circumstances, it can also pose considerable difficulties for PLT instructors and designers who will need different skills and attitudes compared to those valued in the role of the traditional academic.
The learning focus of PLT has customarily centred on face-to-face involvement in teaching and assessment. A move from this method of delivery towards online education involves skill and attitudinal changes both in instructors and in students as well as fundamental changes to the objectives and structure of PLT programs. As Brennan (2003, p.42) commented of online learning in vocational education:
"The new roles and skills for the online teacher come from attitudinal predispositions. Qualities such as perception, compassion, collaboration and creativity are considered essential prerequisites for online delivery success. These attitudes are the initial building blocks from which teachers develop new facilitation, motivational, mentoring and guiding roles and skills. Communication is profoundly different online where teachers are concentrating on clarity and regularity."
It must be recognised that some teaching staff will not wish, nor be readily able, to make this transition. Many teaching staff that excel in face-to-face teaching will have difficulty acquiring the technological skills necessary to make a successful transition to teaching in an online environment and will have difficulty in adjusting teaching styles to accommodate online teaching strategies. Further, it should be noted that the transition requires an initial substantial financial commitment by any course or institution to develop new structures, materials and teaching strategies and, an often overlooked, ongoing financial commitment to ensure the maintenance and continuing quality of these new systems.
Another challenge that is associated with moving towards the online delivery of PLT programs relates to the way in which students learn in PLT. PLT programs rely heavily on various interactions between those involved in the training process; ie between students, academics and students and practitioners and students. Learning in PLT involves acquiring not only a knowledge of and ability to perform defined legal tasks but also an understanding of and ability to function within the legal professional culture.
This cultural or tacit knowledge is most effectively acquired through personal experience (Sternberg et al, 2000) which, for many part-time and distance students, will be acquired through work experience undertaken while studying. However, for students without workplace experience, "personal experience" will be limited to the experience that they receive in the simulated work environment that is provided in the PLT program. Other opportunities to acquire knowledge of the legal culture, for example by active observation (Lave & Wenger, 1991; Lubit, 2001) and social interaction (Rathjen, 1976; Bush, 1984; Meltsner, 1983), are also necessarily based either in the workplace or in the physical educational environment.
To create teaching and learning environments which are conducive to student learning and progression, it is important to recognise the role that this socialisation, and sociability in general, plays in the learning process. As Brennan (2003, p.39) commented, "the individual focus implicit in a great deal of online pedagogy, while ostensibly conforming to learner-centred practices, may not do so and in fact, may represent a backwards step. Learning is a social activity as well as a cognitive one, and unless this ‘sociability’ is guaranteed by online materials, only the most motivated students will persist."
PLT programs have a long familiarity with creating physical programs that are inherently sociable. For example, in the Legal Practice Course at the Queensland University of Technology, full-time students attend campus and are immersed in a simulated legal environment with other students, academic staff and practitioners for a period of fourteen weeks (in addition to an introductory intensive training program of six weeks and a final work experience program of four weeks). Similarly, at the Legal Practice Unit in the Faculty of Law at the University of Wollongong, students complete an intensive study program, which encourages professional bonding with other students, academic staff and practitioners, while undertaking work experience in a legal environment.
However, is it possible to encourage this type of sociability and resulting socialisation and cultural know-how in an online environment? McKavanagh et al (2002, p.50) suggested that in using the internet for teaching "it should be noted that complementary offline activities are also important for good practice. What is needed for good learning is a wide range of deep ‘conversational’ exchanges which involve authentic practice and rich discussions among teachers and groups. As well, individuals need to be engaged in similar ‘conversations with self’ as, for example, through self-reflection and self-monitoring of activities."
Examples of these ‘conversational’ exchanges include:
(a) challenging ideas, concepts and principles;
(b) making connections among related terms;
(c) applying ideas and concepts for the development, monitoring and refinement of skills;
(d) reflecting on practice and considering the application of skills or their expansion and improvement;
(e) observing teachers or others demonstrating a skill, process or method; and
(f) practising, showing or demonstrating skills
These exchanges, if web-based, indicate a high level of interaction, spanning a wide range of online technologies. These would necessarily include technologies such as the recently developed Integrated Media Enriched Teaching (IMET) tools, discussed in detail by Dawson et al (2003), which present an opportunity to provide the type of complex interactive learning resource that seems to be envisaged:
''The IMET resource facilitated the use of a broad number of internet learning activities including, concept checking, multiple choice quizzes, reflection, communication and collaboration, exam revision, pre-testing prior to practical activities (lab and field work), and provision of case studies.''
In other respects, the use of online journals to record work placement experiences and to create a dialogue with supervisors during the placements offer opportunities for further investigation as do the more prosaic discussion group strategies and more sophisticated programs such as CUPID at the University of Wollongong which allows the online creation of collaborative documents. The ability to interact with others to create reports, projects and assignments offers an ability to create the dialogues envisaged by McKavanagh.
Even techniques such as video demonstration may still provide the motivation for these conversational exchanges. These demonstrations have traditionally given students an insight into the cultural events and exchanges of a discipline and can offer a basis for further questioning, discussion and so on, whether or not online. In this regard, the potential to videostream visual training materials should not be underrated.
Anecdotally, a number of practitioners involved in technical aspects of online education have expressed doubt as to the effectiveness of the streaming of such materials. While to do so in an effective manner is undoubtedly an exercise of both high level technical and education skills, this has been achieved in the Criminal Law subject in the Faculty of Law at QUT. In this subject, students are able to view extracts of court appearances to help them to prepare for a similar exercise in their subject. The visual quality of the presentation is high, the nuances of behaviour observable and the overall court experience is brought to life and provides “inspiration” in a way that is not achievable without that high quality visual element. In the writers’ view, despite the acknowledged difficulties of achieving quality in these endeavours and the limited extent to which they might be used, those seeking to train in vocational areas would be well placed to consider incorporating such visual stimuli in their online programs.
However, no matter what exchanges are put in place, like other teaching strategies, online learning will not suit all students or suit all educational strategies. Online teaching strategies often do not take into account that individual students have individual learning styles. Also, as Brennan (2003, pp41-42) notes:
The literary demands imposed by many online courses and modules as well as the cultural homogeneity characterising many of them, raises questions about the ability of the skills of students from a non-English-speaking background and Aboriginal and Torres Strait Islander groups to undertake online learning... Fundamental issues such as the cultural appropriateness of questioning, conversational conventions, language acuity and student attitudes towards interaction with authority take on a heightened importance in an online environment.
With law schools, and the legal profession in general, actively seeking to encourage the enrolment of students from differing cultural and ethnic backgrounds, a reliance on online learning may not be appropriate. This is especially so for students from Indigenous communities where the new skills and roles required in online activities may directly contradict their cultural imperative towards the verbalisation of knowledge. In particular, for these and other economically disadvantaged groups, online learning may well be a hindrance rather than an aid to education. And even for those with access to the technology, rather than encouraging the rich diversity of background, culture and history that contributes so much to the critical analysis of legal problems, online learning might well act to homogenise the teaching and learning experience.
While an immediate and personal contact with professional life is undoubtedly vital for the holistic development of the beginning lawyer, it is important to recognize that not all aspects of PLT or other legal professional learning must necessarily take place in this environment. Without doubt, there are many aspects of PLT programs that can effectively be taught and even assessed on-line. However, although the available technology means that an activity could be successfully conducted and assessed in this way, this is not the only consideration.
Adapting a program to take account of online learning opportunities is a time and resource consuming activity. Online learning is a rapidly growing area of education in which there are few journeymen and even fewer experts. Online course design is a complex and time-consuming process if it is to be done successfully. Not all instructors will be able to readily progress and maintain online activities and few will have the ability to facilitate the more active participation envisaged by McKavanagh et al (2002).
From the students' perspective, while the technology is available to put in place a range of complex online interactive activities, such as virtual courtrooms for the performance of advocacy skills, anecdotal evidence suggests that many participants find these activities disorientating and isolating and that if given the choice they would opt for the face-to-face learning environment over the online one. Students also complain of technical glitches with the technology which can prevent access to the materials and lead to feelings of frustration; inadequate computer access either at home or through universities; the non-user-friendly format of some online sites; and their own lack of computer skills which detracts from the value to them of the online learning experience.
In the writers’ view, any PLT program, whether full-time, part-time or external, will benefit from the use of a variety of learning approaches including on-line strategies such as those mentioned above. The value that online learning strategies add to PLT is not in replacing existing approaches. Rather, the value lies in taking advantage of novel learning opportunities to enhance the overall PLT learning experience in ways that benefit all groups of students and even to give students individual choices in how they learn in different areas of the course. This provides the desirable integrated and flexible learning environment contemplated by Cunningham et al (2000).
Clearly the answer for PLT is not to merely place the paper materials online and call it an "online course". A more interactive and multimedia approach is indicated due to the nature of skills learning in a PLT course. As Oliver & Omari (1999) comment:
''Today, the forms of activity that are frequently suggested as necessary and sufficient conditions for effective university learning are those with high degrees of interactivity and engagement…''
In moving towards developing an online learning environment, the first consideration is the purpose of the course and the second is whether incorporating online elements will enhance the learning experience for the students and/or allow flexibility of approach. In this regard, there would be few courses that could not benefit in some way from the flexibility in teaching and delivery that online learning can offer. The next step is then to determine, having regard to the specific features of the course, what aspects could benefit from flexible delivery. From the PLT perspective, relevant considerations include:
a) the learning outcomes that are sought;
b) whether these outcomes can be achieved through an online option;
c) any advantages that online delivery offers to the various stakeholders;
d) any disadvantages that flow from online delivery to the various stakeholders and whether these outweigh any advantages;
e) the cost (in time, money and human resources) that is involved in designing an online component;
f) the continuing commitment that is involved in ensuring an online component is properly administered;
g) the continuing commitment (in time, money and human resources) that is involved in ensuring that an online component is updated and competently maintained in the long term; and
h) the available technologies that will help to achieve the stated learning objective of the course component.
An example of the type of activity in a PLT training course that may benefit from an online training option is a court advocacy exercise in which students appear in a court situation to present a case on behalf of a client. Traditionally, this type of exercise would be conducted at the learning institution in a face-to-face situation. The learning objective of this type of exercise is to test the competence of the student in being able to represent a client in a court situation to the level of a beginning legal practitioner. It is a summative piece of assessment. Students are tested on, for example, their case preparation, familiarity with the facts of the case and the relevant law, their court demeanour, their advocacy style, and their ability to answer questions posed. Before attempting the exercise, students receive workshop guidance in preparation of a similar case and are given the opportunity to appear in other mock cases in which they receive instructor feedback that can then be utilised in preparing for their final assessed court appearance.
In pedagogical terms, the face-to-face teaching mode is well suited to this type of activity. However, one might instead consider conducting the activity in an online environment to further the wider goal of accommodating distance students, giving them the opportunity to complete a PLT training course which they would normally not otherwise be able to do. The disadvantage of running such an exercise online is that it is difficult to properly simulate the real face-to-face court experience in which a student may be alone in a room at a separate location to the judge, the witness and the opponent. In these circumstances, many of the professional and cultural aspects of the activity may not become embedded in the manner that occurs when the activity is conducted in face-to-face mode.
The technology to complete an activity such as this is already being used to a limited extent in practical training. In the undergraduate program in the Faculty of Law at the Queensland University of Technology, the facilities of the eMoot Court have allowed students from different international locations to participate in a courtroom activity in real time. If this online activity were to be pursued in the long term, students could also undertake common preliminary training and feedback through, for example, online multimedia interactive sessions, discussion forums and backup email contact. However, such an ongoing activity for PLT may prove impractical. The activity is an expensive one to design and administer and is disproportionately consuming of staff time and resources, particularly in terms of the preliminary preparation of modules and student contact time during preparation.
Hence, the decision about whether or not to "go online" is seldom straightforward. There will be advantages and disadvantages and the ultimate decision of what is the best option in terms of the student learning outcomes and consumption of resources will more than likely come from balancing the interests of learners and other stakeholders with those of the educational institution.
Without a doubt online learning tools will figure largely in the development of future PLT programs and professional training in general. They offer a means by which those with limited physical access to educational venues may acquire or develop much of the knowledge and many of the skills of an entry-level lawyer. They offer seemingly limitless opportunities for future training. However, the goal for educators is student learning, not online learning and online learning strategies and tools must be regarded as a means of achieving the goal rather than as the goal itself. Online learning should not be regarded as a “cheap fix” for PLT. The costs associated with setting up and properly maintaining online materials, managing online delivery and giving adequate and professional student support would certainly equal existing materials and training costs. The demands on instructor knowledge, skills, and time will certainly be no less than for traditional PLT teaching methods.
In the writers' view, it is not desirable to seek to rely completely on online technologies to provide a meaningful and comprehensive pre-admission practical legal training program. A fully on-line program, of the type that is being offered for undergraduate students, would not offer the opportunities to acquire the cultural, procedural and other tacit knowledge that PLT seeks to impart to students within the program. Without the physical active and interactive communication that face-to-face teaching provides, the type of knowledge that is essential to operate effectively within the legal environment would be difficult to obtain.
Nevertheless, the role of online learning in the future of PLT and professional legal education cannot be understated. The trend in vocational education to “blended learning” recognizes the advantages in being able to use the positive aspects of both face-to-face learning and online learning to achieve a desirable learning outcome. (Ekland, 2003, p21) Developing a flexible and integrated approach to learning will have similar positive benefits for PLT as it has had for other areas of tertiary education. By offering a combination of on-line and physical learning opportunities universities may be able to better accommodate the different learning styles of individuals.
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