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  • By Kate Galloway, Kate Offer and Natalie Skead

Disrupting Legal Education


Whilst the impact of technology on the legal profession is yet to be fully realised, it’s certainly true to say that significant change has already occurred with momentum continuing to build. These changes to legal practice, including impending developments, demand that legal educators consider how best to equip graduates for a future in law. We must reflect upon the knowledge, skills, and dispositions future lawyers will need, to inform what we teach and how we teach it, and to ensure that legal education embeds professional skills development that is relevant to equipping law graduates for future legal practice.

Perhaps the most obvious skill set required for the future is what might loosely be described as ‘technological skills’. Whilst the exact form these skills will take is open to debate, there is no doubt that some forms of legal tech skills are needed.

For example, Columbia Law School professors Joshua Mitts and Eric Talley note that since the future legal profession will be increasingly driven by data and analytics, graduates should know rudimentary coding. Understanding coding will enable lawyers to collaborate effectively with programmers. [1]

Others suggest a broader conceptualisation of digital literacies, or digital capabilities, [2] which encompass the ability to select the right (digital) tool for the job, and to think critically about the ethical and legal issues in deploying such tools. More than coding per se, such capabilities extend to: understanding how the law engages with technology (such as in the case of privacy); to use and understand technologies that ‘do’ the law (such as e-discovery); the implications of technology on practice (such as on keeping information confidential); and the implications of lawyer’s own digital presentation, for example, on social media. [3]

In addition to technological skills, the 2017 Future of Law and Innovation in the Profession (FLIP) Report produced by the Law Society of New South Wales suggested that law graduates also require diverse skills and areas of knowledge, including business skills, ‘people skills’ (such as the ability to communicate effectively and the ability to work with others), project management, internationalisation, and interdisciplinary experience.

With these various conceptions of a future-oriented profession in mind, we explore four of the key challenges facing law schools and legal education today.

A DISRUPTED PROFESSION

Diverse new ways of working in the legal profession challenge the assumptions of a traditional legal education. In addition to disruptions in the way ‘traditional’ law is practised, a number of alternative models of legal practice are emerging across the globe. Washington State in the US, for example, now has licensed legal technicians. These technicians are not fully licensed lawyers and are not able to appear in court or negotiate on behalf of a client, however they can undertake basic legal work, prepare a limited range of legal documentation and give advice to clients in specific areas. Tailored forms of education are following suit.

As Lyria Bennett Moses notes, the changes in the way law is being practised suggest that the demand for students with both legal and technical expertise – Susskind’s legal knowledge engineers, legal data scientists and legal hybrids - will increase. [4] This seems to indicate the need for an increased focus by law schools on preparing students for the ever more diverse environments into which they will be stepping as graduates.

Despite the new models of practice and a potential shift towards specialist legal technicians, however, commentators such as Susskind have also argued that there is likely to remain a need for legal experts who offer a bespoke legal service and whose skills and humanity cannot be replaced by a computer or legal technician. [5] Law schools will thus continue to have an important role in ensuring that students develop the skills that have traditionally been seen as belonging to the legal profession; how to problem-solve, how to communicate and how to advocate for their clients. The point is, rather, that these skills will not be enough: they must be complemented by a range of additional future-focused skills. The challenge is how to do all this in an already full-to-bursting curriculum.

CONTENT FOCUSSED CURRICULUM

In Australia, the content of a law course is governed by the ‘Priestley 11’. [6] These are the 11 prescribed areas of law that must be studied for a graduate to become admitted to practice. The rules also regulate specific topics which must be covered in each area of study. Regulation of the content of the law degree brings with it the risk, and we suggest, the reality, of a very content-driven approach to legal education.

(Photo: Natalie Skead)

In addition to knowledge of the law, the academic standards for law in Australia require law schools to equip students with a variety of professional skills such as legal writing and research, the ability to think critically and analytically, and ‘people’ skills including self-management. [7] At the same time, the legal profession is increasingly demanding graduates who are client-ready and can ‘hit the ground running’ when they commence work. While academics might argue that all skills learned in university necessarily equip graduates for work in the profession, to meet demands for work-ready skills tends to require some kind of immersion in an authentic workplace.

Developing professional work-ready skills in students requires a co-ordinated, scaffolded and time intensive curriculum that focuses on more than the pure content of prescribed subject knowledge areas of study. For a discipline accustomed to dealing in knowledge and mandated to teach that way, adjusting the curriculum to develop the full range of practical skills can be difficult. Legal educators are inevitably conscious of skills development taking away valuable time that could otherwise be allocated to the development of doctrinal knowledge. As students are ever more eager for an accelerated degree, the time pressures for law schools in trying to incorporate more business, interdisciplinary and technological skills in addition to this already crowded curriculum is obvious.

OVER-COMMITTED STUDENTS

These intersecting professional demands exist in an environment in which students seek more flexibility in the way their university courses are offered, to cater for their external commitments. Student lives are increasingly busy as a significant proportion of students juggle paid work, volunteering, and parenting with their studies. In addition to this, law students feel the pressure of the graduate outlook and are dealing with the reality of a significant debt burden along with (the perception, at least) of a shrinking job market for graduate lawyers.

Many students are not in a position to forgo an income for the duration of their university degree, and do not have the security of a graduate position being available at the end. Most students will take on some amount of paid work during their degree; some as a luxury but for most as a necessity. In addition, even if studying and working, the imperative to be ‘work-ready’ to secure graduate employment frequently demands that students undertake volunteer positions or unpaid internships while studying.

These competing commitments leave less and less time to attend university, affording less time each week for students to engage with the intricacies of legal doctrine. Universities are responding through providing lecture recordings and online learning materials.

However, these ‘remote’ forms of studying can have a detrimental effect on student engagement and thus retention. In addition, there is increasing evidence that student well-being is enhanced through social connections. Remote study can leave students isolated, resulting in poor mental health outcomes.

(Photo: Kate Offer)

Although extra-curricular activities can result in the development of diverse and useful skills which will serve graduates well in practice, such as time management and dealing with people, the complexity of life for students today cannot be underestimated. Somehow, legal education must accommodate this complexity.

TECHNOLOGICALLY LITERATE GRADUATES

When the authors were at law school in the 1980’s, research meant setting foot in the law library, rifling through a large catalogue of index cards to identify the location of the desired text and then setting out to find a physical item. ‘Data bases’ consisted of hard copy annotators instead of computers, and legal research was cumbersome and time consuming.

Today’s legal research methods are computer-based and increasingly mobile. Legal research can be done anywhere and on any device on which one might access the Internet. Lawyers can now use a wealth of legal databases with many sources of legal information. The problem is not finding relevant materials but learning how to navigate the flood of information that is available, and to select judiciously according to purpose.

Beyond the traditional skill of finding the law, artificial intelligence is now sufficiently sophisticated to undertake natural language research tasks: a computer might be coded to answer an intuitive query about a legal problem. This capability calls into question the very notion of specialist knowledge that is the traditional domain of legal education.

Ross Intelligence for example, is based on IBM’s Watson. The platform draws on a database of US law, and can provide an accurate answer to a legal problem far more quickly than a lawyer can. Ross’s related program Eva—freely available online—will check legal advice in seconds, identifying any inaccurate law. Robotlawyer Lisa is another example of a computer program that will provide basic legal advice, as well as draft agreements that represent a compromise position between the two parties.

These types of application are becoming increasingly common. How lawyers interact with the technologies behind these applications remains to be seen. It is likely that lawyers will be involved in the development or prototyping of such technologies, in their marketing, and in client liaison at the very least. If this is the case, it is incumbent on law schools to educate graduates to work in these contexts.

Consequently, a number of law schools worldwide, including The University of Western Australia, are incorporating some form of technological skills into their curriculum including through app creation units. An app is computer software or a program, frequently small and specific, used on mobile devices. A legal app is a program designed to meet a consumer need for some kind of legal assistance. In app creation units, students work with not-for-profit legal service providers, using software—generally ‘drag and drop’ software—to create legal apps that solve a specific problem experience by the service provider’s clients. Widely used app creation programs do not require knowledge of computer coding. They do, however, facilitate problem-solving through the design of an interface that suits the client needs. The long-term benefit for students arises from working directly with clients, learning skills such as interviewing and project management, but also experiencing problem-solving through design thinking whilst designing the app as a solution to the identified problem.

These examples illustrate the need for graduates to be familiar with navigating emergent technology integral to solving legal problems. Training must go beyond simply gaining isolated skills in specific software and instead must encourage students to develop a more profound understanding of the digital environment. These are transferrable skills, to enable students to adapt to new contexts and allow them to collaborate with others and co-create solutions to legal problems—including technological solutions. Law schools need to be arming their students with these digital competencies.

(Photo: Kate Galloway)

CONCLUSION

As singer and Nobel Laureate Bob Dylan once sang ‘the times they are a changin’. This is true not only for the law and legal practice, but also for law in the context of the digital realm. Digital technologies continue to evolve and there is no guarantee that contemporary technologies will still be in in use when current students graduate. Change will be rapid and exponential.

At the same time, the use of these technologies in legal practice is uneven. Traditional lawyering skills are still in demand even as changes in the profession continue to take place. The rate of change and the unevenness together pose significant challenges for law schools that are trying to prepare their graduates for an unpredictable future.

Law schools have an important role to play in supporting the profession as it develops. Legal education can assist in the evolution of the profession by diversifying the student experience and contributing to the development of forward looking and future oriented professional competencies. Whilst traditional skill development remains an important component of the curriculum, legal education must evolve to ensure that future lawyers are well equipped to handle the increasingly technological reality of legal practice.

Footnotes

[1] https://www.law.columbia.edu/news/2018/08/ai-data-analytics.

[2] Kate Galloway, ‘A Rationale and Framework for Digital Literacies in Legal Education’ (2017) 27(1) Legal Education Review 7.

[3] Kylie Burns and Lillian Corbin, ‘E-Professionalism: The Global Reach of the Lawyer’s Duty to Use Social Media Ethically’ (2017) Journal of the Professional Lawyer 153.

[4] Lyria Bennett Moses, ‘The Need for Lawyers’, (2018) Brief 45(11) 10,17.

[5] See Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (Oxford University Press 20015) and Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (2nd ed, Oxford University Press 2017).

[6] The Priestley 11 academic areas are set out in the Law Admissions Consultative Committee (LACC) Uniform Admission Rules 2008, Schedule 1, http://www.legislation.nsw.gov.au/#/view/regulation/2015/240/sch1.

[7] Sally Kift, Mark Israel and Rachael Field, 'Bachelor of Laws Learning and Teaching Academic Standards Statement' (Australian Learning and Teaching Council, 2010).

About the Authors Kate Galloway is Associate Professor Faculty of Law, Centre for Professional Legal Education, Bond University. Kate Offer is a Lecturer & Director of Disruption at Law School at The University of Western Australia and Natalie Skead is Professor and Dean of Law at the Law School at The University of Western Australia.

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