Clinics Turn Doctrine and Policy Into Practice
Pedagogy vs. practice
Since the onset of the financial crisis in 2008, the legal profession has had to retool its business model. Clients expect effective and efficient counsel, with little or no charge for the training and mentoring of young lawyers. Firms and legal employers continue to absorb these costs, but not without consequence.
New associates have less time to prove themselves. They need to contribute immediately – as researchers, analysts, strategists, and team members. It behooves them to be prepared for this moment, and it is a natural opportunity for law schools. The rise of clinical programs, including and especially at Virginia, helps serve the practice by serving students.
“The world of legal practice is experiencing major changes involving globalization and outsourcing of legal work,” says Professor Rich Balnave, the Law School’s director of clinical programs. “Previously, legions of law school graduates would staff the litigation departments in the largest law firms and do things like document review and other sorts of work that are now outsourced.” (Theory vs. Practice: A False Dichotomy?)
These changes have forced a re-examination of legal education and licensure. After extensive study, the American Bar Association increased its practice credit requirement from one to six, beginning with classes entering the 2016-2017 academic year. In addition, California currently has before it a proposal to require 15 practice credits in order to sit for the bar exam.
Virginia has been far ahead of the new ABA requirement for at least two decades, offering enough seats in clinical courses to students who want the intensity of a practicum. Now the question has broadened into how legal education should address skills development across disciplines and for more students. Clinics clearly are one way, but there are other offerings, such as externships and simulations, which are highly immersive and closely supervised. “I think they collectively respond to this cry for increased attention to the need for some practice-oriented education,” says Balnave.
The issue has also hatched what Balnave calls the “regrettable catchphrase, a ‘practice-ready’ graduate, as though someone could leave law school with a sufficient range of skills and knowledge to handle whatever matters come in their office. That’s not possible, or at least not wise. It may be feasible in a very narrow range of areas of the law, but it would be at the expense of other sorts of work.”
When Balnave joined the Law School in 1984 to run the new Family Law Clinic, the only other clinical course was the Criminal Defense Clinic. Appointed the Law School’s director of clinical programs in 2011, Balnave now manages 19 clinical programs covering a wide array of public and private law subject areas.
Balnave is the first to say it was Professor Kent Sinclair, hired in 1983 by Dean Richard Merrill (1980-1988) and still the school’s director of advocacy and lawyer training, who drove the growth of clinical education.
In turn, Sinclair credits Balnave’s guidance over the last 30 years for improving and expanding Virginia’s clinical programs. “Rich’s diplomacy and insight was invaluable to the Law School community as our clinical programs grew, and we are fortunate that he now serves as the director of the programs overall.”
The first clinic involved criminal defense work in the General District and Circuit Courts of the Commonwealth of Virginia. “It set a model that we have used in many clinics since,“ says Sinclair, “one that combines class sessions in the study of lawyering skills, the substantive law involved with the practice, and then real-world engagement that representing clients, under professional supervision, can provide.”
With clinical offerings, the student work does not compete for business with local law firms. In fact, avoiding cases that would divert paid work from the private bar actually expands the availability of legal services to clients who otherwise could not obtain professional representation.
Striking a balance
A turning point in the program came under Robert Scott’s deanship (1991-2001). At one of his early meetings with faculty, Scott noted their concern that second- and third-year students seemed less interested in class after the first-year experience. The curriculum at the time featured many large classes with fewer seminars and just the two clinics. Scott wanted to create a curriculum with more variety in class size, instruction, and practical training.
“He believed that different students wanted different things,” recalls Balnave. “Students were losing interest sitting in large class after large class taking notes in a lecture-style format, so he wanted to add a number of clinics. He recognized that if we brought real-world issues into the Law School, our students might feel more engaged.” He was right.
During Scott’s term, Virginia expanded the curriculum, adding courses and 11 clinics. Scott also introduced the Principles and Practice Program, teaming a member of the faculty with a prominent practitioner. The practitioner brought to the classroom current issues in fresh cases (either active or recently concluded), and the professor selected readings and developed a syllabus to complement the material. Together they taught the students to appreciate the clients’ interests and be problem-solvers.
Michael Lincoln ’91, the co-founder of the first East coast office for Cooley LLP and its Washington, D.C.-based corporate partner who focuses on venture capital, has been teaching a Principles and Practice course on emerging growth companies and start-up financing for 17 years. He has invited to class guests such as Nigel Morris, the co-founder of Capital One; Peter Barris, the managing partner of venture capital firm NEA; and Ted Leonsis, a former AOL executive and now the owner of the Washington Capitals and Washington Wizards.
“It has been a very gratifying experience,” Lincoln says. “I think the primary benefit to students is the opportunity to be exposed to a perspective beyond theory and hypotheticals. I bring a guest every week for a part of the class so students are exposed to the technology ecosystem – entrepreneurs, bankers, venture capitalists, and others. Over the course of a semester, students get meaningful exposure to the intersection of law and business in a more interesting, story-telling format.
"It is also gratifying so see so many of my students go on to achieve success in business. A year does not go by when I am working on a transaction or jumping on a conference call when someone re-introduces himself or herself as a former student of mine."
Scott also wanted a different credit structure for the program. The clinics were credit heavy, and he felt many students would rather spend fewer credits to test their interest in an area of practice. The lower credit load appealed to more students and widened the reach of the program.
“One of the goals pursued by Dean Scott and Dean Jeffries was to make certain, as the Law School’s range of offerings increased, that there was always a spectrum of intensities available for student choice,” says Sinclair. “In-court client representation is, for many students, all-consuming because of the direct impact the work has on the lives of individual clients. The Law School has also blended its range of direct client-representation experiences, with a number of simulation-based – yet deeply practice oriented – classes.”
Concrete cases, real clients
Dean John Jeffries ’73 (2001-2008) continued to seed the clinical program, adding nine more clinics during his tenure and five full-time clinical faculty. The extra faculty gave the Law School the indicia of what most law schools would call an in-house clinical operation, with other “externals” taught exclusively by adjunct faculty.
In 2006, Daniel Ortiz, the Michael J. and Jane R. Horvitz Distinguished Professor of Law, became intrigued by the idea of starting the Supreme Court Litigation Clinic, which achieved immediate success followed by sustained acclaim. “We started the clinic in order to give our talented third-years a unique experience at the apex of the legal profession,” says Ortiz. “They’re forced to use all the book knowledge they’ve gained over two years, to apply it in concrete cases with real clients on usually close legal questions, and to go up against some of the best lawyers in the country, like the Solicitor General’s office. Often they’re doing things that only senior associates or junior partners are entrusted with at law firms, and they get from the clinic directors, whose names have to go on the briefs, immediate and extremely close supervision of their research and writing. What’s not to like?”
As successive deans were devising curricular innovations and Sinclair was implementing them, the Law School began its relationship with the Jessie Ball duPont Fund, a grantmaking nonprofit in Jacksonville, Florida, to develop a variety of pro bono clinics. Assistant Dean for Pro Bono and Public Interest Kimberly Emery ’91 was in charge of the Mortimer Caplin Public Service Center when it began in 1996, and she worked with the Law School Foundation to submit proposals to the Fund.
“The Pro Bono Program provides law students with an introduction to their professional obligation to do pro bono before they even begin their legal careers,” says Emery. “We designed it to instill an ethic of service in aspiring young lawyers through hands-on legal experiences. While pro bono is a critical component of access to justice and to addressing the unmet need for legal services, pro bono also offers students the opportunity to develop legal skills and build a professional network.” These are Virginia’s goals for students drawn to public interest law as well as those eager for learn-by-doing clinical work.
When Paul Mahoney became dean in 2008, he strengthened the clinical offerings by also engaging more faculty to lead them. This combined expertise and availability, the very things that define quality by and among the partners of a high-functioning law firm. Students would perform alongside their professors, and on cases that mattered to the faculty’s research and scholarship. To that end, Mahoney expanded the Appellate Litigation Clinic to an in-house clinic taught by a full-time member of the faculty, and approved the Family Alternative Dispute Resolution Clinic and the new Consumer Law Clinic in conjunction with the Legal Aid Justice Center.
“Today, the Law School offers many times more clinical courses – and includes a much broader range of civil and criminal topics for client representation work – than would have been available 20 years ago,” says Sinclair, “and many of our full-time faculty have been deeply involved in the design and oversight of these classes.”
The clinical experience
What is a clinic and how does it differ from other forms of teaching? And is learning to “think like a lawyer” about theory, practice, or both?
In a traditional course students learn about the law and the values or interests it promotes from casebooks, articles, lectures, and classroom discussion. They learn how to unpack issues and solve problems only after internalizing the rules of procedure and methods of analysis that form the foundation of a legal education.
Critics allege that the appellate opinions in casebooks rely on an edited record, one selected by the court from conflicting facts to support a particular decision. The result is an incomplete picture of what happened, what the court heard, and what arguments failed in order for others to prevail.
“It’s looking backwards in time,” says Balnave, “and that’s quite a different view than the lawyer who’s dealing with all of the potential facts in front of them, and an unpredictable future on how the case will unfold since it can go off the rails in so many different ways.”
Clinics also allow students to approach cases and clients from that perspective. They don’t focus on the law. In fact, a clinic is an inefficient way to learn the principles behind the law. A criminal defense clinic, for example, may only touch upon a fraction of the evidentiary issues that would be taught in a basic evidence course.
What clinics show students is how people and relationships affect a case, from the underlying action to the claims, charges, and defenses that are pressed in litigation and prosecution.
“It’s the human element,” says retired Charlottesville Circuit Court Judge Edward Hogshire ’70, who taught with Balnave. “The thrill you get serving a real client, the appreciation they have for your efforts, the professional satisfaction you get from doing a good job protecting their interests. A big piece of that is why you wanted to be a lawyer to begin with. You want to be able to serve people facing dire consequences and try to alleviate them. Some cases really challenge the students, and some are less interesting, but they grow in all of them because it is something they have never done before. It’s the first time they experienced the attorney-client relationship. It made them feel like lawyers for the first time.”
Clinic students can reflect on their experiences and the different judgments they have to make in representing a client; how to frame the pleadings most advantageously for their client; whether to cross examine and, if so, how to structure the line of questioning; and how to counsel a client who tends to make self-defeating decisions.
Students also learn how to identify case management options, explain them to the client, and consider them relative to the client’s goals. Even when the facts are repetitive and the applicable law is the same, each client idealizes a unique outcome.
Further, despite being served by the clinic, not every client wants to litigate all the way to the Supreme Court. Many clients want discretion, not publicity. Resources are mostly free but not limitless. The students must weigh these parameters in the course of their representation and direct their efforts – and advise their clients – accordingly. The next time they confront them will be as members of the bar or counsel of record.
Risk and fear are natural, so learning to control those emotions is part of the clinical experience. “Ted Hogshire used to say to me when we were co-teaching that there’s just something in your gut when it’s a person,” recalls Balnave. “Even if it’s just a misdemeanor, your client could go to jail. You’ve got to do this and do it right.”
Most students require live action to build confidence and poise in the courtroom. They can possess superior interpersonal skills, but there is no substitute for trial and oral argument. “It is just amazing to watch,” says Balnave. “They all have the smarts, and they’re always scared, which is a very appropriate feeling for one’s first time in court.”
Balnave remembers a case in Nelson County with a student who was arguing her first case. She was well prepared and Balnave thought she was doing a fine job, but the judge sensed her worry. Toward the end of the trial, the judge started writing a note, and as the parties were leaving he called her to the bench. The judge gave her the note – a glowing review of the work she had done and how ably she had performed in court.
“He thought it was something she needed and he wanted to let her know,” says Balnave. “It’s very common for judges to compliment our students and tell them the job they’ve done in court is often better than half the lawyers they see. Our students put in a huge amount of time preparing and like what they’re doing. That kind of professional encouragement makes it all worthwhile.”
Clinic cases are sometimes subject to fate. A story changes, a new witness emerges, or opposing counsel seeks an unexpected continuance. The school semester system isn’t designed to track a docket or trial calendar, so opportunities for students to appear in open court don’t always materialize. Simulations, on the other hand, can be planned and executed to near equal effect.
They are fundamentally different than clinics. The professor can put forward a dense and complicated simulation that will conclude in a 13-week semester. Simulations are predictable in ways cases are not, yet they are as dynamic and engrossing.
“The beauty of the simulation is you can guarantee a trial, a series of motions, and the student gets a detailed look at the federal system of procedure and adjudication,” says Hogshire. “The students get a comprehensive look at how to try a case from A to Z. Evidence, procedure, strategy – it’s all there, and that’s why they are popular.”
In one of their criminal practice simulations, Balnave and Hogshire pulled out all the stops. First, they asked Jeffries and two of his colleagues, the late Bill Stuntz ’84, and Stephen Saltzburg, for a serious criminal procedure challenge that hadn’t been decided by the United States Supreme Court but was likely to arrive there. Balnave and Hogshire then buried the issues in the fact pattern of a drug-dealing conspiracy. The students would uncover the issues in their research and brief and argue them to faculty. The simulated trials were held on Saturdays before sitting federal judges.
Balnave hired two dozen actors to play the roles of the parties and potential witnesses. The prosecutors were told an arrest was made and that there was going to be a bond hearing at the federal courthouse. They would have to talk to their “federal agent” and find out what happened. They would ask Balnave to “investigate” and he would give those results to the actors to play out, produce photographs and taped conversations, and provide other information discovered pursuant to the investigation.
Students wanted to surveil a particular location in town. Balnave took pictures of it. When Balnave and Hogshire thought the students were entitled to some information because they were following a good lead, they yielded something useful they had prepared, such as a tapped phone call.
Another case involved a person trying to smuggle a knife through the magnetometer at the Charlottesville Airport. The actors walked through the events at the airport so they could try to remember their experience as any witness would on the stand when being examined. They sat in a Charlottesville restaurant and formed a “conspiracy,” and then had to remember what was said and who was there.
The Family Alternative Dispute Resolution clinic that Balnave currently teaches with Emery focuses on mediation as an alternative way to resolving custody and visitation disputes. While traditional family law is adversarial, mediation is meant to decrease conflict between parents and to help them reach their own solutions. Before they get real mediations, the students work through a videotaped exercise where actors play the roles of a mother and a father in a custody dispute. They may reach impasse, or one may be forceful and the other withdrawn. Balnave and Emery review the tape with the students to identify those moments they found especially challenging, what was going through their minds, what issues had to be resolved, and what they decided to do.
“Then we ask are there other ways that they could have handled it, because frequently the students are very self-critical,” says Balnave. “We’ll take the time to explore two or three other ways it might have been approached and see whether their choice was really so off base.”
“Students learn how to practice, not as attorneys advocating for a client, but as neutral facilitators,” says Emery. “The skills, emphasized in the clinic, including active listening, creative problem-solving and paraphrasing, are useful in many different substantive law areas. Several graduates, including one prosecutor, have contacted us to let us know how the skills they learned in the clinic are useful in their current litigation practices.”
Practice and theory: a harmonious relationship
According to Balnave, evaluating any teaching methodology presumes an educational goal. If the goal is to learn about patent law, then the student should take a course in patent law. But if the goal is to understand how to turn a person’s thought or invention or design into protectable intellectual property, then a clinical program would be a better choice.
From that perspective, Balnave believes that teaching practice skills works in harmony with teaching intellectual skills.
“We teach practice skills critical to being a good lawyer in our first year curriculum,” he argues, “skills like analytical thinking, being able to distinguish, being able to compare, being able to extrapolate from one set of facts and one set of reasons to take on a new but slightly different kind of set of facts, learning how to frame the arguments persuasively. All of these cognitive skills are one of the two central goals I think of a first-year curriculum.
“Part of it is learning about the law itself, but part of it is helping people learn how to think like a lawyer, a critical skill that comes in many different varieties. It happens in a clinical course but it also happens in traditional courses.”
Balnave thinks the bar and the academy underestimate how difficult it is to practice law at a high level. “There is a huge intellectual challenge to those who strive to be very good lawyers. That’s why we ask our alumni to teach courses. They are experts in their field who can bring into the Law School the intellectually challenging parts of the real world for our students to see and grapple with.”
Clearly, the profession has concluded that it wants law schools to focus more of their attention and resources on preparing students for the practice, not just the knowledge, of law. Virginia continues to provide many opportunities to do that. George Geis, the vice dean and William S. Potter Professor of Law, monitors enrollment in courses to see where student interest leads and builds on those opportunities to offer a practice dimension that satisfies the new ABA accreditation standard. A long list of courses currently offered by the Law School already meets the new professional skills requirement, a combination of clinics, externships, short courses, and simulations.
“Our clinical programs present unique opportunities for students to acquire legal skills in a sustained manner,” says Geis, “and they are wildly popular. Students flock to work with our experienced faculty on matters that include appellate litigation, fairness in the criminal justice system, and early-stage corporate strategy and planning. We offer a very wide range of specialized clinics and continually tailor these opportunities according to student interests.
“Taken together, our clinics offer a perfect counterbalance to UVA’s theoretical curriculum by giving students the chance to gain practical experience and test what different career paths might look like upon graduation.”