Reimagining Legal Education: Forging Ahead with Experiential Learning in Law Schools and American Inns of Court

The Bencher—May/June 2018

By Pamela DeMartino, Esquire

“Nothing ever becomes real till it is experienced.”John Keats

The grip on my arm startled me, but not as much as its intended purpose of veering me into the nearby conference room where I would meet the witnesses waiting to testify in a jury trial scheduled to start in the next hour. The assistant district attorney (ADA) assigned to the case had heeded a call to the hospital where his wife was about to deliver their first child. As a rookie ADA and the only live body within reach, I found myself preparing to voir dire a jury and begin a trial with fewer than 30 minutes to spare. All the theory and case studies of my legal education were of no avail; here was the stuff they never taught us in law school.

The Emergence of Experiential Learning

Assuredly, many readers can recount a situation that generated such mixed feelings of exhilaration and desperation. Because the practicalities of the legal profession cannot always be scripted for classroom study, recent law school graduates must often contend with these types of unforeseen experiences without benefit of manual or preceptor. An appreciation for these types of scenarios that await law students outside of academia explains much of the rationale to acquaint law students “experientially” with legal practice before they don their caps and gowns. The innovative methodology in law school curricula, referred to broadly as “experiential learning,” formally emerged with the passing of the American Bar Association’s (ABA’s) Standards of Rules of Procedure for Approval of Law Schools, Section 303, 2016–2017. Therein, the ABA officially obligated law schools to include various opportunities in experiential learning, which it defines as “a simulation course, a law clinic, or a field placement.”

A survey of journal articles in the decade preceding this accreditation requirement reveals spirited discussions on the need to reimagine legal education. One writer argued for an expansion of the meaning to “think like a lawyer,” claiming its meaning embraced the means of “knowing how to use not only doctrine, but legal theory and legal criticisms in a practical context.” Another writer described the theorist approach as “the proverbial ‘elephant’ plaguing a dysfunctional family, which everyone recognizes as a root problem but no one dares talk about; overuse of the Socratic method is the elephant in law schools.” While that is a rather harsh critique of a classical form of inquiry-based learning, the contrast between today’s Millennials and the students of the 20th century all but demanded some form of revisionary tactics to the traditional law school pedagogy. Instructional approaches using technology, collaboration, and creative synthesis were emerging across professional disciplines, warranting a reexamination of the learning outcomes of a law degree.

Contrasting Perspectives of Experiential Pedagogy

Establishing a balance between learning doctrinal theories and hands-on applications seems to be the greatest challenge facing today’s law schools. There are potential drawbacks in mandating these new curricula studies. Time and money are critical concerns of incoming law students; therefore, increasing either component to the extent curriculum demands is simply not a viable choice for law schools. As a consequence, gains in experiential learning must counter losses in the offerings of customary core courses. As one critic of the ABA’s initiative contends, additional experiential courses will negatively affect student preparation because they will contribute “to a reduction in the student’s exposure to a range of doctrinal courses (especially core courses) and to the skills that those courses develop.” Yet, early data strongly suggest that the benefits of a more practical pedagogy justify its further expansion. In assessing the potential merits of this type of experiential reform, an extensive quantitative study surveyed public and private sector attorneys asking for their evaluative assessments of their experiential learning experiences. The findings revealed that experiential learning “was rated positively by nearly every lawyer” surveyed, in varying degrees, and with clear indicators that “genuine intensity” and “career relatedness matters to the long-term practice value” of such courses. 

Experiential Learning in Today’s American Inns of Court

Today’s American Inns of Court are furthering the promise of positive outcomes from the ABA’s Standard 303 programming. Law school students and recent graduates stand to reap immeasurable benefits from the counsel afforded by the work of the American Inns of Court. Presentations often stage scenarios actually realized by practitioners but never touched on in any respect, be that theoretically or in a practicum, in an attorney’s legal education. One of the many benefits offered by an American Inn of Court is its members’ diversity of experience and tenure. Members certainly learn from the well-scripted programming, but equally informative is the wealth of information gleaned from the hands-on know-how acquired in the course of a law practice. Mentorships are formed, networks established, and resources are pooled and shared.

The Justice William Strong American Inn of Court, of which I’ve been a member now for over 20 years, strongly encourages the newest members of our bar association to join our monthly meetings. Seniority may well be something earned, but this Inn’s philosophy is that the practiced experience attendant to senior status is something less-seasoned attorneys need to partake in. At a time when concerns with civility and ethical conduct are of critical importance to the legal profession as a whole, the practical guidance elicited from Inn members might actually secure the type of professionalism sought by, but possibly too elusive for, a traditional doctrinal legal course.

The Honorable William W. Lipsitt American Inn of Court serves as another example of an educational partnership. The Lipsitt Inn invites third-year law students from Widener University Commonwealth Law School and the Pennsylvania State University Dickinson School of Law to become members and actively participate in events. Open to all rising third-year students interested in trial work, the Lipsitt Inn seeks to foster an appreciation of the intricacies and importance of exemplary litigation skills. The Inn promotes informal mentoring, with both experienced lawyers and judges offering various shadowing opportunities. Former student Inn members are often invited back to share their experiences in transitioning from law school to their professional careers. Perhaps the Lipsitt Inn’s most telling indicator of success is the fact that each year interest in the program exceeds the available slots.

Reflections on Experience

Returning to my 11th-hour jury trial, what kept me from implosion was neither the rhetoric of cross-examination nor the theories of astute jury selection. Rather, the experience I had acquired as a certified legal intern in the district attorney’s (DA’s) office during my third year of law school calmed my brain enough to proceed professionally. Of course, back in those days we didn’t call such internships “experiential.” The certification process relieved the overscheduling of cases in the DA’s office, while affording law students “multiple opportunities for performance” as now required and defined by Standard 303. Today, the formal prescription of such experiences reimagines the traditional paradigm of Socratic inquiry, inviting both law schools and American Inns of Court to endeavor with creative and innovative legal educational opportunities.

Pamela DeMartino, Esquire is an adjunct professor at Widener University Commonwealth Law School, an active member in the Berks County Bar Association, and the Justice William Strong Inns of Court in Reading, Pennsylvania. She is also an English teacher at Boyertown Area Senior High.

© 2018 Pamela DeMartino, Esquire. This article was originally published in the May/June 2018 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.