Teaching plumbing with Periclean ideals: Should it be done? Can it be done? Advocacy and courtroom scholarship

Law Teacher

Volumn 30, Issue 3, 1996, Pages 330-353

  Hunter, Jill ^a  

^a UNIVERSITY OF NEW SOUTH WALES   (Australia)

Author keywords

[No Author keywords available]

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EID: 85042152166     PISSN: 03069400     EISSN: 19430353     Source Type: Journal    
DOI: 10.1080/03069400.1996.9992959     Document Type: Article

References (60)

1. Brownsword, R., 1996. “Where are all the Law Schools Going?”. Law Teacher, 30: 1 This law school mission is also described in the US literature as the ‘university ideal'
2. Barnhizer, D., 1990. “The University Ideal and Clinical Legal Education”. NY Law School LR, 35: 87
3. Feldman, M., 1984–85. “On the Margins of Legal Education”. NYU Review of Law & Social Change, 13: 607 For an early history of US clinical legal education, see
4. Spiegel, M., 1987. “Theory and Practice in Legal Education: An Essay on Clinical Education”. UCLA LR, 34: 577 for an excellent critique of the theory/practice dichotomy in the evolution of US legal education, see
5. Pepe, S. D., 1985. “Clinical Legal Education: Is Taking Rites Seriously a Fantasy, Folly, or Failure?”. Journal of Law Reform, 18: 307 Barnhizer observes that live-client clinical programs, the elite of the clinical teaching repertoire, had become trapped in institutional structure, individual caseload pressures and local community requirements. As a consequence, overarching strategies for meeting disadvantage and injustice often distracted clinicians’ focus on concerted social activist programs. Meanwhile, classroom scholarship had taken up social justice law and developed it within a critical and intellectual structure: see Barnhizer D., op. cit. note 2 at 102–110; see also
6. Imwinkelried, E. J., 1991. “On Achieving Synergy in the Law School Curriculum”. Notre Dame LR, 66: 739740–741.
7. Geraghty, T. F., 1991. “Foreword: Teaching Trial Advocacy in the 90s and Beyond”. Notre Dame LR, 66: 687694
8. Weisbrot, D., 1990. Australian Laywers, Melbourne: Longman Cheshire. Australian legal education (as distinct from its clinical programs) developed from the classically UK model of practitioner-instruction: see
9. Rice, S., and Coss, G., 1996. A Guide to Implementing Clinical Teaching Method in the Law School Curriculum, 5Australia: Centre for Legal Education. The US experience has arguably turned further towards vocational goals than the Australian clinical environment
10. Chesterman, M., and Weisbrot, D., 1987. “Legal Scholarship in Australia”. Mod LR, 50: 709
11. Pearce, D., Campbell, E., and Harding, D., 1987. Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission 29Australia The acknowledged importance of clinical legal education was reiterated eight years later in the Pearce Report
12. Duncan, N., 1991. “Why Legal Skills—Whither Legal Education?”. Law Teacher, 25: 142 In England the statistics indicate that approximately 62–64 per cent of graduates do not enter legal practice
13. Armytage, L., and Vignaendra. 1996. Career Intentions of Law Students 1995, Canberra: Centre for Legal Education, AGPS. In Australia, 46 per cent law students surveyed in 1995 wished to enter legal private practice. An additional 10 per cent wished to enter public sector legal practice
14. Twining, W., 1992. “Preparing Lawyers for the Twenty-first Century”. Leg Educ Rev, 3: 1
15. Ramsden, P., 1992. Learning to Teach in Higher Education, 163–64. UK: Routledge.
16. Zariski, A., 1991. “Roll Over Socrates: Reflection on the Conference on Clinical Legal Education in Australia. Journal of Prof Legal Education, 9: 155159–160. According to Ramsden, the major criticism of traditional practical/clinical subjects is that they operate on the invalid assumption that learning to do certain tasks implies an understanding of related intellectual issues or an ability to relate such tasks to theoretical knowledge. Zariski and Rice have focused on the role of Australian clinical education in facilitating a deeper understanding of legal principle and doctrine
17. Hunter, J., and Cronin, K., 1995. Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary, Butterworths Australia. This is facilitated in a number of ways including through cross-cultural readings focusing on ‘courtroom scholarship’. In general terms courtroom scholarship is an examination of the role of criminal trial participants (the judge, the jury, the accused, the lawyer and the witness) which is conducted primarily through the disciplines of history, sociology, psychology and law. It explores ethical and doctrinal issues in the criminal trial (and also pre-trial) but equal prominence is given to the theoretical and actual constraints operating upon each participant in a criminal trial. The lawyer and the client are not centre-stage in this form of scholarship, nor is legal doctrine. Within the case study I give illustrations of how courtroom scholarship enriches the study of the criminal trial. See generally
18. Alfieri, A. V., 1990. “The Politics of Clinical Knowledge”. NY Law School LR, 35: 720 See Barnhizer D., op. cit. note 2; Geraghty, T. F., op. cit. 9, 693; cf
19. Mack, K., 1993. “Bringing Clinical Learning into a Conventional Classroom”. Legal Educ Rev, 4: 8990 On the polarised nature of the debate in Australia, see
20. Hunter, J., and Cronin, K., 1995. Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary, Australia: Butterworths. It is an elective LLB subject. Dr Kathryn Cronin (currently an Australian Law Reform Commissioner) and I jointly conceived, developed and teach the subject. In addition, we have published ‘the book of the course'
21. Hegland, K., 1982. “Moral Dilemmas in Teaching Trial Advocacy”. Journal Legal Education, 32: 69
22. Lubet, S., 1987. “What We Should Teach (But Don't) When We Teach Trial Advocacy”. Journal Legal Education, 37: 123 Geraghty T. F., op. cit. note 9 at 691. See also
23. Allen, R. J., 1991. “NTTA and the University”. Notre Dame LR, 66: 705717
24. Grimes, R., Klaff, J., and Smith, C., 1996. “Legal Skills and Clinical Legal Education—A Survey of Undergraduate Law School Practice”. Law Teacher, 30: 4466 This may seem a surprising view in the light of Grimes, Klaff and Smith survey of UK law schools which suggests that the teaching of skills is generally taken seriously and almost universally seen as part of the academic curriculum
25. Weisbrot, D., “The Changing Nature of Australian Legal Practice: Some implications for Education and Practical Training Providers”. Australian Professional Legal Education Council Conference: Towards National Practice. Australia. ANU. Hegland K., op. cit. note 26; Geraghty T. F., op. cit. note 9 at 693; Lubet S., op. cit. note 26; Allen, op. cit. note 26. See also
26. Eades, D., 1995. language in Evidence: Issues Confronting Aboriginal and Multicultural Australia, UNSW Press. For example, linguistic
27. Stephenson, G. M., 1992. The Psychology of Criminal Justice, UK: Blackwell.
28. Simon, W. H., 1978. “The Ideology of Advocacy; Procedural Justice and Professional Ethics”. Wisc LR, 29: 3096–99.
29. Hay, D., and Winslow, C. 1975. “Property, authority and the Criminal Law”. In Albion's Fatal Tree: Crime and Society in Eighteenth Century England, Edited by: Hay, D., Linebaugh, P., Rule, J. G., and Thompson, E. P., UK: Allen Lane. Even history informs on the power of the accused to convey his or her case to the court and the role of character evidence
30. Tsamenyi, M., and Clark, E., 1995. “An Overview of the Present Status and Future Prospects of Australian Legal Education”. Law Teacher, 29: 116
31. Tanford, J. A., 1991. “What We Don't Teach in Trial Advocacy: A Proposed Course in Trial Law”. Journal of Legal Education, 41: 251 For a description of a subject which embraces courtroom scholarship but in a non-advocacy setting, see
32. Imwinkelried, E J., 1992. “The Renaissance in American Trial Advocacy Literature: the Next Step”. American Journal of Trial Advocacy, 16: 175
33. McCrimmon, L. A., 1994. “Trial Advocacy Training in Law School: An Australian Perspective”. Legal Education Review, 5: 18 In Australia the NITA model has been adapted in a post university training context by the Australian Advocacy Institute under the Chairmanship of Justice Hampel
34. Hyman, J., 1991. “Discovery and Invention: The NITA Method in the Contracts Classroom”. Notre Dame LR, 66: 759767 Apparently achieved at Rutgers
35. Lubet, S., 1991. “Advocacy Education: The Case for Structural Knowledge”. Notre Dame LR, 66: 721734
36. Ordover, A., “Teaching Sensitivity to Facts”. Notre Dame LR, 66813814–15.
37. Brosnahan, J. J., 1992. “Suggestions for Enriching the Teaching of Trial Advocacy”. American Journal of Trial Advocacy, 16: 193 McCrimmon LA, op. cit. note 46
38. Berger, M. J., and Mitchell, J. B., 1993. “Rethinking Advocacy Training”. American Journal of Trial Advocacy, 16: 821
39. Levine, J. B., 1989. Winning Trial Advocacy, How to Avoid Mistakes Made by Master Trial Lawyers, US: Prentice Hall. (developing the advocate's mind). There is a large volume of US literature on how an advocate can develop the winning edge over opponents: e.g.
40. Klonoff, H., and Colby, P. L., 1990. Sponsorship Strategy: Evidentiary Tactics for Winning Jury Trials, The Michie Co.
41. Saks, M., 1991. ‘Turning Practice into Progress: Better Lawyering Through Experimentation”. Notre Dame LR, 66: 801807
42. Dhavan, R., Kibble, N., and Twining, W., 1989. Access to Legal Education and the Legal Profession, London: Butterworth & CLEA.
43. Freedman, M., 1966. “Professional Responsibility of the Defense Lawyer The Three Hardest Questions”. Mich LR, 64: 1469
44. Bennett, W. L., and Feldman, M. S., 1984. Reconstructing Reality in the Courtroom, US: Rutgers University Press. Story telling or narratology relates to the view that the trial is organised around story telling. Narratologists argue that observers, such as jurors, organise evidence around stories to locate the ‘central action' to construct inferences about elements surrounding the central action; and to test the story as a whole for completeness and internal consistency. Story telling permits the disjointed, confusing and/or inconsistent information presented to jurors to be reconstructed into an explicable version of the events in question. See
45. Twining, W., 1990. Rethinking Evidence: Exploratory Essays, 240Basil Blackwell.
46. Lempert, R. 1986. “The New Evidence Scholarship: Analysing the Process of Proof”. Boston University LR, 66: 439 New Evidence Scholarship which pursues decision-making from a variety of perspectives (including semiotics and mathematics)
47. 1991. Cardozo LR, 13 which is dedicated to this topic
48. Weber, Rheinstein M., ed. 1954. Max Weber on Law in Economy and Society, US: Harvard University Press.
49. 1989. A Crim R, 41: 383 The Crown case alleged indecent assault and an interpretation of the accused's actions indicated an admission
50. Hunter, J., and Cronin, K., 1995. Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary, Australia: Butterworths. Students are also introduced to these areas of law through inter-discplinary readings
51. Pepe, S. D., 1985. “Clinical Legal Education: Is Taking Rites Seriously A Fantasy, Folly, or Failure?”. U Mich Journal of Law Reform, 18: 307 Recommended ratios of student:teacher are 10:1 in a live client clinic; 15:1 in a placement clinical programme: Rice S. & Goss G. op. cit. 10. On the impact of a financial squeeze on clinical legal education in the US, see
52. Boniface, D. J., 1992. “Peer Interaction: The Group Assessment Experiment”. unpublished paper
53. Hertz-Lazarowittz, R., 1989. “Co-operation and Helping in the Classroom: A Contextual Approach”. Intnl J of Ed Res, 13: 113
54. King, A., 1989. “Verbal Interaction and Problem Solving within Computer-Assisted Cooperative Learning Groups”. Journal of Educ Computing Res, 5: 1
55. Swing, S. R., and Peterson, P. L., 1982. “The Relationship of Student Ability and Small Group Interaction to Student Achievement”. Am Educ J, 19: 259
56. Webb, N. M., and Kenderski, C. M., 1984. “Student Interaction and Learning in Small Group and Whole Class Settings”. In The Social Context of Instruction: Group Organisation and Croup Processes, Edited by: Peterson, P. L., Wilkinson, L. C., and Halliman, M., NY: Academic Press.
57. Kissam, P. C., 1989. “Law School Examinations”. Vanderbilt LR, 42: 433457
58. Mugney and Doise, W., 1978. “Socio-cognitive Conflict and the Structure of Individual and Collective Performance”. European J Soc Psych, 8: 181
59. Webb, N. M., 1989. “Peer Interaction and Learning in Small Groups”. Intnl J of Ed Res, 13: 2122
60. Lundy, L., 1995. “The Assessment of Clinical Legal Education: An Illustration”. Law Teacher, 29: 311 There is much debate over grading or not grading in clinical skills subjects. Grimes's study showed grading to be the predominant practice in UK clinical legal education. However the definition of clinical skills was particularly broad (including drafting, research, interviewing, negotiation, advocacy, communication) so that its findings may fail to reflect practices in vocationally orientated subjects: see Grimes op. cit. note 28, 56–58. This assessment debate is really a subset of wider issues relating to the philosophy of such subjects. Grading tends to be resisted where a subject is predominantly transferring skills which are not multidimensional and which do not focus on intellectual depth or breadth. Though for a strong argument that even a clinical placement program can assess on the basis of traditional academic legal skills see