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Upgrading legal pedagogy for 21st century lawyering

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Academic and Professional Development Committee Scholarship

Hilary Okoeguale
Afe Babalola University, Ado-Ekiti
hilaryoko8@gmail.com
 

Introduction

It is an axiom that today the dynamics of demand instantly affect the supply of goods and services. Similarly, the increasingly globalised world impacts on the pattern of legal service delivery. For instance, the demand for legal advice on investment risks and prospects from across the world is legion; certain areas of law that were considered domestic now attract interest from all over the world and lawyers are exceedingly being confronted with international dimensions of their clients’ brief.[1] Furthermore, the advancement in technology, which heightens globalised interaction, emphasises the demand for digitised legal services. On the other hand, a legal service required by category of persons who cannot afford same has induced the birth of pro bono legal services.

Over the years, in response to the demand for legal services, a few approaches have been engendered, practised and are fizzling away. The approaches to the delivery of legal services range from pro bono legal services, which are meant to address legal problems confronting indigent persons, and digitised legal services whereby clients are able to contact and utilise the services of their lawyers anytime and everywhere. Other approaches include alternative fee arrangements such as fixed fee or retainer services and billable hours. This essay argues that the new legal order is digitised legal services considering that the world has shrivelled into a global village.

The advancement in the approaches to legal service delivery, concomitantly, puts the quality of legal education offered by faculties of law and law schools to the test; as O’Sullivan and McNamara note, employers are identifying certain areas of law where development is needed.[2] This essay seeks to articulate an adequate response which legal pedagogy should proffer in order to address the demands for sophisticated legal services, which is becoming exceedingly dynamic. In order to achieve this aim this essay will expose some approaches to legal service delivery and attempt to gauge an adequate response expected from law schools.

Billable hour

The billable hour system refers to the system whereby lawyers record how much time they spend on a client’s job in order to determine the charges to be imposed by the lawyer.[3] This arrangement seems to favour the idea that the client should pay for the resources, skills and time utilised by the lawyer in the execution of their client’s job and nothing more; it is meant to measure the bills of a lawyer and obviate arbitrary billing unilaterally determined by the lawyer. The billable hour system has other functions, which includes its function as a benchmark for assessing young lawyers’ productivity in the firm. However, this system is flawed because lawyers unilaterally determine how much time they spend on a client’s brief. Owing to the possibilities of deliberately extending the time spent to increase charges on the client and other restrictive tendencies,[4] demand for alternative arrangements arose.

Fixed fees

The fixed fee arrangement is the direct opposite of the billable hour system. It is the system whereby clients and lawyers, at the onset, determine the price to be paid by the client at the end of the day. This system is usually preferred by clients as it offers the advantage of certainty regarding their financial commitments to lawyers.

Pro bono legal services

A survey conducted in the United States shows that only 63 million Americans ‘met financial requirements for services provided by the Legal Services Corporation’.[5Similarly, another study indicates that ‘well over 100 million Americans [are] living with civil justice problems’, many involving what the American Bar Association has termed, ‘basic human needs’.[6Similarly, in Nigeria, over 70 per cent of the population (140 million people) live below the poverty line and cannot afford legal services. This situation has given rise to the pro bono approach in delivering legal services, whereby legal professionals provide free legal services.

In line with the need to encourage professionals to provide legal services to the poor, the Nigerian Bar Association requires lawyers seeking elevation to the rank of Senior Advocate of Nigeria, to show evidence that prior to their application they had provided free legal services to the poor. To demonstrate seriousness, this requirement has been codified in section 18(2) of the Legal Aid Act of 2011 in Nigeria.

Digitalised legal services

The 21st century generation is increasingly exposed and getting accustomed to the global usage of technology as it impacts many aspects of life. Concurrently, legal practice evolution, in the 21st century, is largely spurred by the rapid advancement in technology; the Covid-19 pandemic served as a catalyst that increased the impact of technology on modern legal practice. As a corollary, remote transactions in the production and delivery of goods and services through digital applications enabled by the internet has become the order of the day.

The digitised way of life and its potentials have been heightened by the Covid-19 pandemic. As a result of the plague, which is widespread, the World Health Organization on 11 March 2020, declared the outbreak a global pandemic;[7] the first in about a century. Consequently, governments across the world, particularly in countries affected, imposed restrictions on movement to curb the spread of the virus. The inability of individuals to move hampered the free flow of goods and services, forced a new order of ‘working from home’ and caused a sharp increase in the demand for services available in software applications on the internet. Suddenly, there was a spike in the utilisation of virtual meeting applications such as Zoom, Skype etc.

The legal profession has not been left behind as courts, which would have delivered judgments in open courts[8] have now resorted to the online option.[9] Thus, there is a significant increase in the demand for legal services online. A survey conducted in the US recently shows that 83 per cent of legal professionals surveyed believe that cloud technology is necessary for survival of their practice in the near future. The same survey indicates that 66 per cent of legal professionals surveyed say the Covid-19 outbreak will impact how their firm will operate after the pandemic comes to an end. Similarly, progressive firms in Nordic regions have tapped into technology in the delivery of legal services. Obviously, a paradigm shift in legal practice is imminent as there is high probability that legal professionals are going to de-emphasise physical presence and focus on the delivery of services via the internet, or electronically.

Legal education

Legal education is a process whereby students acquire skills to solve legal problems. More often than not, successful graduates become lawyers who are presumed to be competent in engaging legal issues productively. Rapid developments in the approaches to legal service delivery warrant commensurate response from legal institutions providing legal education. Thus, varying approaches have been adopted by different jurisdictions to produce highly competitive and competent lawyers. Whereas Nigeria has embraced the clinical legal education (CLE) model, Australia has mainstreamed international perspectives into the law curricula and the schools in the US are being urged to internationalise law curricula.[10]

Internationalisation of legal pedagogy

As stated earlier, the globalisation of legal practice warrants a proportionate adjustment to the law curriculum. Thus, in Australia, the internationalisation of the law curriculum has been adopted.[11] This methodology mainstreams international and foreign perspectives into subject areas and these are taught to students to prepare them for a globalised legal practice. Four main approaches have been developed in this regard and they are: the aggregation, segregation, integrated and immersion approaches.[12] All the approaches expose students to subjects through the lenses of international and foreign laws.

Kim agrees that legal education in the US should adopt the methodology of internationalising the law curriculum even though the American Bar Association has not given the mandate.[13] Kim argues that the need to infuse international and foreign elements into legal education is because practitioners encounter those elements in practice.[14]

Clinical legal education (CLE)

CLE refers to the model for teaching law that is geared towards exposing students to the apprenticeship method of learning the workings of legal practice. The model emphasises the mainstreaming of practical aspects of legal profession into the curricula in law schools. For instance, in criminal law, where students are taught the theories of criminal law and the elements of crime, CLE requires that teachers should go beyond the theoretical aspects and teach students to draft charges and motion papers and even move motions in court. To create a wider platform for CLE, where students are expected to have hands-on experience, law faculties are encouraged to set up law clinics.

The underlying philosophy of CLE is that law ‘must be taught both as a liberal art subject and as a vocation. The general goal therefore will be to present legal education at all levels in a way that will achieve the development of professionally competent, socially conscious and ethical lawyers that will serve the society’.[15] The ever increasing need for pro bono legal services in Nigeria is inadvertently addressed by the CLE model in Nigeria, whereby students are enlisted as paralegals. Accordingly, the Nigerian Legal Aid Act of 2011 provides in its section 17 that, the ‘Legal Aid Council is mandated to maintain a register of... law clinics that are engaged in the services of providing legal aid and legal assistance’ to persons needing same in the eyes of the Act. Law clinic mentioned in the Act refers to miniature law offices operated by faculties of law in a bid to provide CLE for law students.

Emphasis on exposing law students to the artistic workings of law, has led to the increase in the number of law faculties in Nigeria that have set up law clinics and they further require law office attachment (internship) as part of the training. A few personal experiences as a Director of the Afe Babalola University, Ado-Ekiti Law Clinic are suitable here.

  1. In November 2019, student-clinicians (students participating in law clinic activities) were taken to a custodial centre with the aim of offering pro bono legal services to awaiting trial inmates. The experience also offered student-clinicians the platform for practising client interviewing skills with prison inmates. Upon discovery of the congestion in the prison and the poor state of the inmates, student-clinicians embarked on a fundraising campaign in order to pay off the fine of some selected inmates who had been sentenced for minor offences and had the option of paying fines. In the end, five inmates were released.

  2. On 13 April 2020, during the Covid-19 pandemic, a young lady (Miss S), was brutalised by her neighbours, a man and his wife (Mr and Mrs O). She sustained sight-threatening injuries to both eyes. Owing to the lockdown ensuing from the pandemic and grave financial constraints, Miss S remained at home, helpless, with severe injuries. Incidentally, her mother got wind of what had happened and reported to the law clinic. Since the law clinic provides pro bono legal services, the case was reported to the police and with the clinic’s support, charges were drafted and the suspects were arraigned on 22 April 2020.

On the first occasion, the Law Clinic (with students’ participation), under the auspices of CLE, was able to meet the demands of indigent persons. In addition, and more importantly, students were exposed to the live workings of the law. Some of the advantages inherent in CLE are as follows:

  • CLE presents law students with the opportunities of meeting with live clients and having a hands-on experience in applying legal solutions to legal problems.
  • The CLE model shortens the length of time newly qualified wigs require to grasp the art of legal practice. Thus, upon completion of training in law schools, young lawyers would have had experiences on basic legal skills such as client interview skills, alternative dispute resolution mechanisms etc.
  • The clinical legal pedagogy also exposes students to the nuances and dynamics of legal practice real time and offers them the opportunity to prepare adequately for full scale legal practice. With the knowledge gained in advance, in the course of internship, new wigs can be innovative and bring their own style into legal practice. For instance, law students confronted with the conundrum of digitised legal services may acquire skills in information and communication technology (ICT) and begin to develop software for legal service delivery before entering the labour market.

Mainstreaming ICT into legal pedagogy

Covid-19 has ushered in a new legal order whereby digitised legal practice is inevitable and legal pedagogy is expected to provide a rapid response to that demand. To adequately meet the nature of demands that is imminent in the new legal order, future lawyers are expected to be ICT-savvy; they should be learned in computer programming and be able to develop applications for digital legal service delivery.

Obviously, curricula in law schools that have keyed into the CLE method or schools that have internationalised curricula should include training in ICT skills. This would ensure newly qualified lawyers possess the skill to adequately respond to demands for legal services that are exceedingly digitised. As stated earlier, the global trend favours meeting and execution of transactions remotely.

Adequate response of legal education to the dynamics of the legal industry

An adequate response of legal education to the evolution of legal service delivery requires the combination of CLE and mainstreaming ICT technology packages and international elements into law school curricula. Since CLE exposes students to live legal practice and offers them opportunities, albeit limited, to interact with clients, it has the advantage of putting students in touch with challenges facing qualified lawyers and sparks in them the eagerness to find solutions. Also, the need to infuse international elements and ICT skills into the course of study would have been encountered by students even before they qualify to practise law. This need would engender fruitful interactions in class, which should lead to purposeful research.

Although the emphasis of CLE is on methodology, it offers an opportunity for students to see needs in the legal industry and apply themselves to it. Thus, the reforms in curricula would be driven by internationalisation models in Australia and ICT imperatives.

Conclusion

Rapid change is a reality that the 21st century generation is accustomed to and this is glaring in the legal industry. Legal pedagogy has not moved with the same pace. Hence this essay argues that the curricula in schools need to be upgraded frequently to meet the demands in the legal industry.

To adequately prepare law students for modern sophisticated legal practice, there is the need to internationalise law school curricula, mainstreaming applied ICT into law school curricula and apply the CLE model.

 


[1] Carmel O’Sullivan and Judith McNamara, ‘Creating a Global Law Graduate: The Need, Benefits and Practical Approaches to Internationalise the Curriculum,’ Journal of Learning Design (8) (2) [2015];54, noting that issues such as human rights and climate change now invoke international interest.

[2] Ibid, 61.

[3] Rebecca Waller-Davies, ‘What are Billable Hours and What Do Students Need to Know About Them,’ The Lawyer,available at www.thelawyer.com/what-are-billable-hours accessed  8 May 2020.

[4] Gillian K Hadfield, ‘The Cost of Law: Promoting Access to Justice Through the (Un)Corporate Practice of Law’, 38 Int’Re. of Law and Econ; 1, 17-8, noting that the ‘billable hour’ system does not encourage innovation.

[5] Commission on the Future of Legal Services, American Bar Association, Report on the Future of Legal Services in the United States, 2016; 12.

[6] Ibid.

[7] Domenico Cicinotta et al, ‘WHO Declares COVID-19 a Pandemic,’ available at https://pubmed.ncbi.nlm.nih.gov/32191675/ accessed 8 May 2020.

[8] For instance, section 36 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), requires judgments to be delivered in public.

[9] 'Nigeria Holds First Online Court Sitting in Lagos, Man Sentenced to Death for Murder’, Sahara Reporters, available at http://saharareporters.com/2020/05/04/nigeria-holds-first-online-court-sitting-lagos-man-sentenced-death-murder accessed 8 May 2020.    

[10] Rosa Kim, ‘Globalizing the Law Curriculum for Twenty-First-Century Lawyering,’ Journal of Legal Education 67, No 4, (2018): 907.

[11] See n 1 above, 56.

[12] Ibid.

[13] See n 10 above.

[14] Ibid, 910.

[15] Ernest Ojukwu, Sam Erugo and Charles Adekoya, Clinical Legal Education: Curriculum, Lessons and Materials,(Network of University Legal Aid Institutions, 2013), 7.

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