Letter: Some reflections on Caribbean legal education – Part 2

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Dear Sir:

There is little point (in my view and practice) to criticize something unless one puts on the table the underlying causes of the situation and contributes to its solution by offering ideas. These are my thoughts on this matter.

The characteristics attributed to our students come from several quarters. Our students go into law school from a society in which there are low standards and expectations but in which everyone feels this sense of entitlement, whether it be a government worker, a businessman, a doctor, lawyer or a flood victim. They come into an institution that is charged with producing attorneys to build a postcolonial Caribbean society and to uplift and contribute to Caribbean development.

It is the trustees of this institution that are responsible for setting the standards by which such students will graduate. Consequently, any education system which does not design a curriculum to move intakes to become graduates with the expected outcomes is failing in its duty. No one will ask what kind of student came into the institution. Instead, they will ask – how did the institution allow such students to graduate? Rightly or wrongly, it will always be the last institution from which such persons come that will (rightly) bear the brunt of faults of its graduates.

An education system must unambiguously link outcomes with a designed, systemic framework to achieve such results. In our system, the ingredients to establish such a design include the characteristics and attributes of the incoming students, the curriculum content and teaching methods, assessment systems and the culture of the institution.

Student Characteristics

Both the comments of the president and SC treat the student population of the law school as a similar unit possessing similar characteristics when, in fact, the only similar trait they own other than being human is that they all want to get out of the institution as quickly as possible. here is one other characteristic which our students all share in common – whether they come from the UWI or the external English LL.B. programme. They all, for the most part, demonstrate a lack of critical thinking and problem-solving skills as well as a failure to demonstrate an understanding certain fundamental principles of law which result in their inability to apply them effectively.

Apart from these, there is a multiplicity of distinguishing features about our student population which was not as prevalent when my generation of the 1980s studied law and the current student population. They vary in age, sex, employment status life experience, academic training, and expertise. They arrive with various expectations and perceptions of legal education and practice and what it can contribute to their development, lifestyle and career prospects.

All of these characteristics ought to be taken into account in designing a curriculum that treats these differentials as assets to be used instead of being ignored. Instead, the curriculum addresses all of these student demographics as though they were one whole. For example, students who are high achievers and scholarship winners have totally different perceptions, expectations and career plans from students who have had previous tertiary education experience as opposed to students who are married, already have a career and expertise in banking, education, finance or other subject area expertise which contributes to our social and economic development. I don’t think that either the president or SC was thinking about the latter group when they offered those remarks but were, instead, focused on high school students who immediately went to university and have now ended up at the law school.

Curriculum Design

At the Council of Legal Education, the curriculum design is rooted in the 1970s and 1980s, and to a large extent, it has not moved out of that era. It does not recognize the demographic shift discussed above or the massive changes in society and the legal marketplace requiring similar changes to its curriculum to make it exciting and relevant to modern students. It is preoccupied with face to face classroom interaction of measuring content (the ‘what’) when students expect and should be given hands-on practical experience of applying the ‘what’ (the ‘how’). Since 1984, more and more elements have been added to the curriculum (many of such changes are, in fact, positive) without removing or rationalizing the curriculum to account for such additions. As well-intentioned as these changes might be, the net result is that students are overburdened and will seek the quickest and easiest way out. Instead of focusing on developing the skills of the lawyer, they are more focused on passing examinations which have as little to do with the actual abilities which lawyers require as does the teaching methods employed in pursuing the content taught.

Assessment

It is a moot point that students are motivated mainly by the factors on which they are assessed. If your assessment strategy is through the end of the year, high stakes examinations, then it is difficult to expect them to respond positively to any activity throughout the year which does not contribute to this end – not unless you employ other strategies such as your institutional culture, to achieve a more desirable result. Assessment, therefore, must be intimately linked with teaching objectives, teaching methods, student expectations, and curriculum design.

A practical example of this which applies to how we view assessment and try to monitor student responsiveness can be taken from the GATE programme in Trinidad and Tobago which requires an accurate record of student attendance at classes as one factor in determining their continued eligibility for GATE funding. It is also a standard set by the Council.

However, physical attendance such as showing up to class does not provide any indication of the preparatory work a student should have done for the class, their level of understanding of what is being discussed in the class, their mental aptitude in engaging and bringing their knowledge and experience to the class discussion. A much better indicator of these factors is to measure their level of participation in the class. It is now very possible to monitor the level of a student’s (preparation for and) meaningful involvement in a class in real time with the aid of technology using what is termed ‘blended learning.’

In legal education where professional training and ethical behavior is critical, examinations only indicate what students know – not how they behave. However, judging a student’s participation in class, their level of preparation and understanding, their willingness to share their knowledge – are all part of a proper lawyer’s training and character and this is really and genuinely assessable.

Current assessment methods principally test the current flawed indicators only at the end of the academic year. A system that focuses on participation instead of attendance, will identify a student’s vulnerabilities and monitor his improvement from the very start of the academic year and administration and faculty will be a partner in the student’s development instead of being judge, jury, and executioner of a student’s ambitions. It is always better and more cost efficient to be proactive rather than be reactive.

Consequently, a discussion on legal education which only focuses on the problem but not the root of the problem or possible solutions is meaningless. The failure to do the best that we can to ensure more ethical graduates is a failure of institutional leadership starting at the top with the Council. The failure to address these failings during a student’s two-year programme at the law school virtually guarantees that they will behave in the same way in practice after they graduate.

Unfortunately, our higher education culture still reeks of the plantation where there is a vast gulf between students and faculty which ‘never the twain shall meet.’ As we are bogged down by our history, other societies see higher education as a collaborative effort between students and faculty – and that is a feature of development which we are still to attain.

Institutional Culture and the Informal Curriculum

I now come to the systemic issues which must be considered as an educator. Ethics cannot be assessed in an examination – it must be lived. Codes of behavior rightly have to be articulated, but students must be able to see them in operation in the law school environment of which they are apart. This issue on its own can be the subject of an entire paper, but I must limit myself.

If one sees law school as its own ecosystem, one can create strategies to determine how students apply ethical standards within that space. One can monitor and assess their level of interaction with each other, faculty, administrative staff and workers. One can see their level of involvement in student life, social and cultural activities, volunteer activities, social outreach, and engagement.

Collegiality as a student value cannot be promoted when tutors do not demonstrate what that means in their relationship with students. Telling students that they should respect each other and display professional courtesy is given the lie when students are insulted students in public and class when tutors are invited but do not attend student activities without offering an excuse or apology. The values we expect of our students must be the values we exhibit to them, even when we must apologise to them for any mistakes which we may occasionally make.

The characterization of SC of what he calls ‘minor dishonesty’ must also be challenged. I have never agreed with the signing of the attendance register. I don’t think it has any place in a professional law school and is not an indicator of student engagement. However, I believe that once this is the law, it ought to be followed. A precious teaching opportunity is missed when such an unpopular issue is left to be followed through blind adherence instead of being the subject of student/faculty debate. Such a debate will yield valuable lessons for both sides and is another way in which to engage what is called ‘reflective practice’ among students which leads to better practitioners.

Unwieldly and unresponsive governance and administrative structure of the Council
I finally come to the elephant in the room. In 1975, the Curriculum Research Committee of the HWLS comprising prominent Caribbean legal luminaries as Arthur Douglas, Lynette Seebaran, Roy Singh and Tillman Thomas, recommended a move away from traditional English examinations toward greater research-oriented assessment. Other committees submitted reports in 1978, 1981, 1998, and 2003. The most comprehensive review was the 1998 Barnett Committee Report.

The Council even had its own Strategic Plan 2003 – 2008. It created an Executive Secretariat of which I was an officer before it was disbanded. All this to say that, in spite of many critical recommendations through the years, it has failed to implement most of the most relevant. It brings us to where we are at present which reflects not only a governance and administrative structure that is unresponsive but one which is structurally incapable of responding to change and can adapt to changing environments.

The crisis of non-UWI students seeking admittance to study law at the Council’s schools was recognized as a problem since 1998 and has not been adequately addressed since. This does not even address the many changes, current and future challenges in legal practice to which an effect educational framework must address.

Suggestions for Change

I wish to end as I began. The statements of President Weekes call for an uncomfortable but necessary debate in our Caribbean society about the role and structure of vocational legal education. Many believe that legal education is now a luxury that we cannot afford because we perceive that there are too many lawyers, many of whom bring uncomfortable legal actions against governments and government agencies. I would argue that these actions are necessary to maintain our democratic institutions.

As importantly, economic development and trade cannot be developed without the work of specialized lawyers in the ever-increasing areas of law which are growing daily which we farm out to extra-regional lawyers who have the appropriate expertise while we fail to build our own. By this, we effectively give foreigners our cake while we fight for the crumbs.

These issues are not only of concern to law students inside the law school but also to aspiring law school students, members of the public who finance such education and wish to benefit from it. It must also be of concern to the general legal profession and the various professional legal bodies in the region, Caribbean governments – all of whom have representatives on the Council of Legal Education and therefore, bear part of such responsibility.

It must finally be of critical concern of the Council of Legal Education itself who must be held accountable for its actions (or lack thereof) over the years. The Council must be made to answer to these issues and present a way forward to address these legitimate concerns. It makes no sense to speak of additional law schools when the fundamentals of legal education are so flawed. We know what happens when you build on a foundation made of sand!

While I have specific suggestions which I have placed before the Council and its agencies over the 20 years I have been employed by it, I do not pretend to have definitive solutions. I believe that a vigorous debate must be joined to find relevant answers. I am always willing to be a part of this debate.

However, I call on all the stakeholders whom I have mentioned above, to call for such debate and accounting from the Council for its tenure over the years. Very often when one presents proposals for change, the response has been to bemoan the costs of such action. In my response, I would suggest that as we count the cost of action, we must also calculate the cost of inaction to determine which is greater.

Michael Theodore
Retired Senior Tutor II – Council of Legal Education
Candidate for Doctor of Education (University of Sheffield)

Previous – Part 1

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