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GAZETTE
SEPTEMBER 1979
ever has been, one single, ideal answer to that ques-
tion. No doubt that kind of knowledge, those
kind of skills can be provided in a variety of ways or of
combinations of ways. Basically though it does seem that
two ingredients are involved: one, an academic ingredient;
the other, a professional ingredient. The academic
ingredient consists of that highly complex body of
knowledge, and of the intellectual processes peculiar to it.
The professional ingredient comprises those practical
skills and professional techniques necessary to apply that
body of knowledge in the resolution of everyday practical
legal problems. Now, according to the theory of legal
education to which we have subscribed, the academic
ingredient is best provided by our Universities, our Law
Schools, because they are best equipped to impart that
kind of knowledge; the professional ingredient is best
provided by a combination of Legal Practice Course
training and apprenticeship, because they are best
equipped to provide that.
The first question I want to discuss tonight concerns
this latter ingredient — the professional ingredient; the
part of legal education that is concerned with the practical
skills and professional techniques, without which, as
Brandeis J. said, the knowledge of the law and the
understanding of its intellecutal processes cannot be
applied in practice. It is that part of legal practice that
partakes of the nature of a craft. It is the ingredient that
we expect to be provided by a combination of legal
practice course training and apprenticeship training.
What role should each play in providing that training?
It seems to me that there are two dimensions to the
learning of a craft. The first must be, I think, to acquire
an understanding of the instruments, the tools if you like,
of the craft, their nature, their purposes, their uses, and
their particular application to the raw materials of the
craft. And there must also be an understanding of the
techniques and skills of the craft itself and of the nature of
its raw materials. In the teaching of most, if not all, crafts
— from soldiering to plumbing — this part of training is
provided in what is now called an "institutional setting",
by people who have a specialised knowledge and
experience of those particular skills and techniques. And,
as part of that training, there is given some practice in the
application of those skills, albeit on what might be called
"dummy materials", and, of course, in simulated
situations. Obviously you do not give a student of surgery
a living body to practise on, nor a student of sculpture a
flawless piece of marble; nor do you create or wait for a
situation of war to give your armed forces some practise
in the art of warfare.
That part in the professional's education of a lawyer
we have assigned to legal practice courses. It is for that
purpose that they exist.
But, as I have said, there are two dimensions of
learning a craft: the other is in the application of those
techniques and skills to the actual raw materials of the
craft. The raw materials of legal practice are people with
legal problems, as the raw materials of medical practice
are people with medical problems. People with legal
problems are the raw materials to which the lawyer has to
apply his knowledge and skills in an endeavour to reach a
satisfactory adjustment of those problems. To provide the
experience and the guidance necessary to achieve that
final stage in the learning of a craft is the work of
apprenticeship. It is only to a practitioner of a craft that
one can look for mastery in the handling of the raw
materials of that craft. And to learn that mastery himself
the student must have the guidance and direction of a
practioner. That is the role of apprenticeship.
Now all this I have expressed in a most general of
terms. A major task confronting us in the immediate
future is to reduce it to specific, clearly identifiable terms;
to define with precision the respective roles of legal
practice course training, and of apprenticeship training;
and having done that, to work out how best to co-ordinate
them.
Roll of Legal Practice Course
Let me first say something about the role of Legal
Practice Course training. Educationalists tell us that the
way to define the role of a course of instruction is to
define its educational objectives. It appears that they may
be defined in different ways, but one way of doing so, and
it is the way we have adopted up to date, is to define them
in what are called "performance terms", that is in terms
of what the student ought to be able to do at the end of
the course that he could not do at the beginning of it.
Now in professional legal education a distinction has
been drawn between what have been called "legal
operations" and "legal skills and techniques"." The
expression "legal operations" is used to describe the jobs
that a lawyer is called upon to do; for example, to draw up
a will, to obtain a grant of probate or of letters of
administration, to convey a piece of property and so on.
"Legal techniques and legal skills" describe all those
varied skills and techniques that are required for the
successful carrying out of those operations; for example,
dealing with clients, interviewing them and counselling
them, obtaining facts from them, collating and analysing
those facts and presenting them, whether to a court or to
someone else, in as forceful and telling a way as possible.
Up to date most of us, I think, have defined our
objectives in terms of legal operations. Skills and
techniques, we say, we deal with "pervasively". But that
usually means we do nothing about them at all. At best,
we try in some ill-defined way to give the student some
general understanding of them. In preparing the
curriculum for a course then what we have done is to
draw up a list of jobs which we think the students should
be able to do at the end of the course and we set out to
teach them how to do those jobs.
I, for one, am not at all satisfied that we are right in
defining the objectives of Legal Practice Courses in terms
of legal operations, leaving skills and teahniques to be
dealt with pervasively. I am strongly inclined to the view
that we should be defining them in terms of skills and
techniques, which may be illustrated through the medium
of legal operations, first in simulated situations and with
dummy materials, and then later using the raw materials
of legal practice. If skills and techniques are not taught in
legal practice courses, where will they be taught? Is it
good enough to say that the students will pick them up as
they go along? Surely that is the very attitude that we are
trying to get away from in introducing Legal Practice
Courses. I am not at all satisfied that we have drawn the
proper distinction between the objectives of Legal
Practice Courses and those of apprenticeship. Are not the
proper objectives of legal practice courses skills and
techniques; those of apprenticeship legal operations?
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