Keynote Speech
“The History and Purpose of the Clinical Legal Education”
David McQuoid-Mason
University of Kwazulu-Natal, Durban, Sourth Africa
Just to say, it’s a great pleasure to be back in Turkey because I first came here in 1967, international tourist year, and we’re still building roads (…) model for Turkish Ministry of Tourism, so maybe if you go to your tourist museum and look at in 1968 (…) you can see me. It’s my third visit in Turkey; I’m very pleased to be here. I liked to congratulate Anadolu University on his 50th birthday, more particularly law faculty on the 20th birthday. I’ve been asked to talk to you about the history of mission and mission of clinical legal education and its role in promoting practical legal education and social justice. And I just want to pick up on one thing that dean said this morning. I noticed how editors put in corporation and I’m very pleased to see you have the ministry of justice people here and other public officials. It was as you will hear later in our country we have a legal abroad, which provides legal aid services for poor people but funded by the state. And then board has partnerships with law clinics. And the law clinics get a share of the public funding to assist them in a partnership to deliver legal aid services. So that’s a very important component. I’m very pleased you’re all here. We’re all on the same mission for justice, whether we academics, whether we are public officials or anybody else. Ok, what I’m gonna talk to you this morning is, you’ll got it English here and Turkish there, what is clinical legal education, history of clinical legal education, the mission of clinical legal education, clinical legal education teaching methods, clinical legal education skills that we teach, clinical legal education and client delivery models, clinical legal education and social justice. I’ll conclude and then because clinical legal education is not about giving lectures, I asked them to give me a ten-minute warning, and then what I’m going to do is to demonstrate, again with you, how we use clinical legal education methodology. So what is clinical legal education? We often describe it as experiential learning. As you heard from your president of university that for four months, I guess in the room is real life learning and what we are trying to do is to build on that student’s experience as they actually learn in at the university as well. So they are confronted with practical lawyering problems. Real issues, not just what’s in the textbook, what is actually happening. They deal with them in the role of lawyer’s zone, actually play the role of lawyer, so they not just read what the academics say, they try to be lawyers. They interact with clients or each other. Sometimes they role-play. And they try to identify and solve legal and social justice. Social justice is a very important component. Because its very important for the rule of law, it’s very important for democracy. Without social justice, you get revolution and chaos. They reflect on what they’ve learnt. Through art clinical education projects, students are invited to think about what have I learned about society and what the law is doing in society, but what I learned about myself, what have I learned to make me a good lawyer one day as well so they are all reflected and they are also subjected to critical review by the teacher and the each other. You always debrief the students; you ask them you give them feedback all the time. You don’t just collect an essay, give them a mark and send it back. You monitor the progress. History of the clinical legal education: we really took the idea from the medical profession because it uses problem-based education. Medical students are exposed to patients. The old traditional method was just for law teachers to give lectures and you just learned from the books. You never really saw real people and still you graduated and started doing your retention. The modern versions of clinical legal education began in the 1960s in the U.S.A, a program funded by Ford Foundation. In 1970s, Canada started looking at it, U.K, Australia, South Africa. We were in the middle of a (...) so we were cut off from everybody else. I hoped to organize a conference in 1973, in that year there were 3 law clinics in our country ran by students, which were started a year before. One that began in April 1973, professor Philipa Kruger will tell you about that later. Then I started one. We had a conference in July and in August we set up a law clinic. No resources. All I had were portable files cabinets that used to go down church hall, bringing some loyals with me, supervised students almost (...) tapped advice with students. In 1980s, it spreaded onto the Phillipines, India, Autstria, 1990s onto Tailand, Malesia, central and eastern Europe, central Asia, America and Russia. 1990s were important because people often think law clinics are a common law jurisdiction thing. IT’s something American and English speaking universities do. In the 1990s, our work in 16 eastern European countries, all of them have civil law system, all of them can go back to Roman law. And I think the same Turkish (...) you got your code from Germans or somebody might have influenced you but it’s a civil law system and law clinics works just as effectively in both systems so it doesn’t matter what system you have. In 2010, Turkey came on board, you have (...) sitting here that will talk about themselves later, China, Japan, Mexico, Spain, Algeria, Serbia, South east Asia, middle east countries, Iran and I’ll tell you some of the things later on there’s many many countries now and so Turkey in a way is now becoming a (...) you are starting to be a catalyst but you’re becoming a part of joining world community. And there have been recently books on legal education published in American Health (…), which have said we are looking at the lawyering skills. The most important vehicle for teaching them is clinical legal education. So what is the mission then? On the way, I described it actually as really to teach practical skills in a social justice setting. Social justice setting is a fair distribution of health, housing, welfare, education and legal resources. You gotta have access to the courts. When I was drafting legal legislation for Syria I went all the wrong places including the president of their country. Now then, if you know that Syria had a civil war 10 years ago, people were killing each other, cutting of their head and doing all sorts of horrible things and the president said to me “one of the reasons we have a civil war in our country was that people did not trust the administration of justice”. All the lawyers were in the capital Freitah. All the law officers were there. There were four lawyers maybe across the country. Nowhere else. All they had was prosecutors and police officers; never saw anybody to defend them. So the rebels came and said, “guys, come and fight for justice, join the revolution, we’re gonna overthrow these guys” and so the president has been very strong to push these legal (...) in Syria. So it’s very important for the rule of law and democracy. It deals with needs, not wants. Everybody wants to be rich. Everybody wants everything but certain needs we all have and that what we’re trying to increase with clinical legal education. At the same time while all the students learning their practical skills, they also provide valuable services to communities, to help them access social justice. Now it depends very much, I’m from a developing world, South Africa; many of the countries are working on those. We can’t have that luxury. South American law clinics don’t ever see clients. They are just simulations, or they even want the students that have legal education. They will deal with rich clients. We don’t do that. We’re trying to help the poor people in the developing countries, and we always try to have real life clinics, and I’ll explain something to you just now. In different forms, you get street law clinics, you get life plan clinics, you get public legal education which is street law, legislative drafting. I (...) described three main ones for you. I’m gonna describe the life plan clinics. We have people getting advice. I’m gonna explain the street law, or legal awareness clinics. Then, I’m going to describe one, which is popular in the Arab-speaking world, and you will hear from doctor Mattar later about that. He actually helped drafting the legislation, legislation for people with disability, legislation for old people and so on. And that’s a very useful thing a student can do. Also, learning about the communities. The teaching methods: very important for us and I’ll have a bit of time at the end to show you how we use, but we use what we call interactive teaching method. We don’t just stand up and give lectures, and what I’m doing now is a good (...) I’m afraid, but I’m supposed to be doing keynotes but I’ll do something later with you. But we do things like role-plays, where students use their own experience to role-play. We are teaching (...) rights on arrest, but powers of the police and the right of citizens. We will say, who’s been arrested. If anybody has been arrested come out and tell us the way you were arrested, how you saw it the police did it, and after that role-play, we’ll then say “ok, these are the powers of the police. There are the rights of citizen. Why did the police exercise power? (…)” Simulations. We actually can use scripts, role-play for students to use their own experience and script simulations we write for them. Moots, some people confuse moots with mock trials. But a moot means we lawyers arguing and area of law which is decided before usually, mock trials as we lawyers examining witnesses and judges examining witnesses ahead of trial. Case studies, in which we look at cases, which the courses have decided. Small group discussions, very good way of learning with students interacts with each other. Debates, you all heard about that, students forming on different sides. Taking a stand, student presentations, many ways in which teachers are facilitators than actual lecturers, and that gives you life long learning experience students have. All right, I wanna talk now about the different clinics. Now, there are life plan clinics where you have real people and not simulations. And all of these programs you work, you gotta have an academic component, where you are training and teaching the students and you have a service component. Academic component usually, you go into a classroom, you do classes and seminars using the interactive methods. You will rehearse how a lawyer interviews a client, and you go and see a client. Service component, you can work in a law clinic or in some other institution. I’ll show you some different models, and student may be involved working on a campus or going and working in a non-governmental organization even a government agency sometimes. We will talk about that. Ok, how they usually work. You can have (…) or students can get academic credits. The university recognizes this and they get credit for applying any other law courts. Some universities may not gonna give you grade but every student must do this almost like a community service. We call jury performing and certificate. Others say “Hey volunteers! We aren’t really to give you guys credits but you can volunteer”. Best ones give you credit. Students are supervised by qualified lawyers to make sure they have proper advice to deal with communities. Usually they give advice, but sometimes, and you will hear it again from our colleague Philippa from Witz. Sometimes the students will do the preliminary work with the lawyer and the lawyer goes to court. Some jurisdictions have what we call student practice rules. U.S.A, Philippines and Chili has it, where the students can actually go to court and argue the cases with the supervisor. The Philippines is very progressive because the students can go to court but they can argue before the supreme court as well if they are probably (signed)??. And then the challenge is how you balance the academic classroom component with the service component because you are doing in-service learning at the same time that you are trying to teach the academic component. Whole lot of skills then that we’re trying to teach the students what we call lawyering skills. Client interview, how you interview a client, how you council, how you advice a client, professional responsibility, what are the ethical rules that governs a lawyer’s relationships, advocacy, how you create a persuasive argument in the court, negotiation, how you negotiate, critical thinking. Ok this is what the law says at it looks as if law is against us. Let’s investigate, let’s see if we can do something else to try and solve. Problem solving, how do we solve problems. Lawyer’s life is permanently solving problems, drafting, how do we draft documents, the importance of drafting documents. You don’t put a full stop or a coma in a wrong place. It would cost you millions. Communication skills, how do you speak, how do you write, how do you communicate, how do you use your telephone and thinking on your feet. And those of you who will coming to the workshop, we’ll give you a little formula on how you can think on your feet and make a persuasive argument. Models of delivery, whole variety. Campus law clinics, and I think you have a (...) what people have; you have a law office on your campus. When I started, I didn’t have a law office so I would go to a church or a community hall just with my portable filing cabinets and use them. That’s why we call it an off campus clinic as well. So you can have somewhere in town where you can go. Mobile law clinics, we would take a little van or a little car and go up to a community in a rural area where there’s a big problem and certainly people there needed help so you get in your car you go up there, sit under a tree, you bring your files, you train your students, you sit under the trees, you give advice there and you come back to the university. We’ve done that many times. Public interest law firms are firms where they are trying to one person bring an action which gonna effect everybody and some law clinics specialize. In my country, public interest law firms work together with legal aid funded authorities because they can bring big cases that are gonna change people’s lives. Community law clinics, and I’ll talk about these in more details, where the students go and live in communities during the vacations and learn about their problems and get it back. Then formal ones. What we call formal to externships and cheapest to run where your clinics go to non-governmental organization or goverment office or something and provide the service there. Ok, let me talk a little bit about these. In campus and off campus clinics, you can have this what we call as general practice with ideally everything in it so most popular model for western countries which started. You can have specialist clinics where you deal with special problems you hear from Philippa. They do that in Witz University in South Africa and we do it. You take laborer cases. In my country, AIDS is important, or consuminal cases, or administrative justice cases you can specialize or you can have public interest law clinics which I mentioned. You take actions on behalf of whole lot of people. The general practice ones, they are usually the most common one to start with and you focus mainly on advice, giving people advice and you refer them to lawyers or government agencies and that’s the easiest one to start with. Specialist ones very often, and again I mentioned them, but criminal law and non-domestic violence is a problem. For instance, in Syria women and children refugees, those cases as well. We build an expertise and very often, you will hear from Philippa again. Lawyers will go to court. You don’t just refer, your lawyers and your firm go to court because they speak and take the students as well. The mobile ones, they have same sort of issues but they will go from a campus. Basically they go circuit. They have a mobile filing system. You can get a simple filing cabinet, which you can hang your files in and bring them back to the office. And they usually take on cases that will fit everybody, not just individual people because they want to make an impact. We often call that impact litigation as well. Specialist law firms can do that. And then you can have what we call community and “adia” alternative dispute resolution. Anybody knows what that means in turkey? We use mediation and arbitration that sort of things, and those ones, well the community ones and they use in Bangladesh and İndia a lot. The community ones are with the students join in their vacation. If they come from a village, they go back to their village, live in their village or what is good that you take the rich kids to go to the rural areas and in South East Asia they will got to leave with a handful of rice like everybody else and learn the problems of the community, see how they can identify them come back to university, research the problems, see what can be done to provide the answers. Those are the great ones in rural areas, imagine Turkey got rural areas with students could go and into the communities and spend a vacation or a weekend identifying the problems and come back to the clinic and try to help them. Alternative dispute resolution clinics. Some alternative dispute resolution clinics where the students are trying to do mediation. And they have something in İndia that they call a long dallact. With the law students work with the courts and they try and deal mainly in the civil cases how they can try and get mediated settlements and the students (...) on a weekend courts are opened and law students come with clients and you have a bench consisting of a magistrate or a district court judge, a social worker, and an ordinary lawyer. And the students come with the clients and the clients there are mediated with the settlement and that settlement becomes the order of the court. And in 75% of the cases they can take out of the courts. They clear the courts by using these methods. So using the students and the supervision that is a very useful one as well. It’s very good for domestic violence and family violence. In Afghanistan, you might be surprised to hear that, that Afghanistan has law clinics that they have a domestic violence clinic which they use mediation and as you know Afghan society is very traditional. And so it’s very difficult to deal directly with the husband so the way the clinic’s workers: they bring the whole family, the elders of both sides, and they all come together. And they start of by explaining the law and the law just in most countries it is a crime to beat your wife and so on. But they think it is traditional, between the family here with the groom, they say, you know actually we are sorry because we do not realize we were breaking the law. We thought we could do this because of our culture. And they found in a number of cases then they actually got an agreement. Ok, I won’t beat my wife. I’ll work out some other way of dealing with. That is a useful thing to do as well. The “farm out” clinics internships so where the students will go and work, legal or paralegal or vice office or something and they are being supervised by the staff of that organization but if you are using them for academic credit you gotta make sure your supervisors are trained and you achieve your educational goals with them if that happens with the placements. They are very good for giving insights into communities, with the (…) in particular communities, cheaper to run because you don’t need some of your own lawyers you can use the lawyers of India or government officers or human rights commissioners or whatever. Ok so, life plan clinics. Street board type clinics. These are the ones again the experiential learning and street law is the termical program because it is experiential learning. It is really about training the students to use these interactive teaching methods they then go into organizations like prisons and they train waiting (...) prisoners and juvenile prisoners. Bilgi University does that sentence prisoners for instance because they very often don’t know what to do about education. So we find and ask students to go prison. The people who attend most are the prison wardens, prison officials because they left to learn the laws as well with the students. Again, law students are getting practical problems. When you go to a community to teach law you learn what is happening in that community, people have got problems. Again, they are afraid of what they’ve learned, they get the critical review and so on as well. Again, they get academic credit. You can make it like community service or you can make it voluntary. You gotta train them to teach to target groups. You must be very sensitive about your communities. I don’t know how conservative your rural communities are in Turkey but for us, you need to make sure that you’re sensitive to what is going on in their community. Sometimes you need a gatekeeper to even go to some of our communities. Students need to know what is going on there. We usually don’t give a lot of advice. There is an English program. I’ll talk about later called “Street Law Plus”, with an all sort of advice. What we do with street law ones is to give a general advice about the problem but refer to individual cases to life, plan clinic at your university campus or a lawyer or government agency if they need one. And you need to balance this academic work with service work. Our students give 25 lessons in 100 high schools around my city. And they will go and give lessons in those high schools during these calls. I don’t know whether you have a life skills program in high school or counseling or citizenship program, but those are the programs our students use. Ok, different models we got in schools, prisons, places of safety where young/juvenile offenders go, community groups, trade unions, youth groups, women groups, university groups, civil society. Any numbers of places you can do it, and again these students, some of them, street law plus I mentioned where (...) also try to do something following those problems. The last thing I want to talk about is it is particularly found useful in Arabian world, but they do in some of the English universities, which is legislative drafting, where you actually assist as a partner, ministry of justice as trying to draft a new law, or somebody wants a new law, students get involved, help by identifying the problem in the community effecting, what is effecting old people here, what is effecting widows or something or disabled people. You get feedback from community on what their problems are. You have a look, do the research. They see other countries doing this, and then as a result, they will come up and suggest drafting maintenance. We have students in South Africa doing this to draft the laws dealing with forensic investigations; for instance, in medical issues. Again, academic credits are all the other things as we spoke about. You can have campus legislative drafting clinic, you can have advocacy groups where students are advocating for changes to legislation. You can have students assisting law commissions as research assistance. You can have students assisting government departments as well. They are very useful resources, they are at the university. University is looking for things to what to do, and they build their research capacity as well. Ok, I’m just about to finish. How am I doing? Ten minutes. All right I’m just gonna summarize the social justice. Then, I’m gonna make a quick demonstration. All right so as far as social justice goes, you really can’t just teach jury’s (...) or something. It is ok to read what’s in textbook and things, but you need to receive what is happening in the community as well. You can set a theoretical framework but then you have to see what is happening. We have a right to have a lawyer in our constitution, but we say students during their vacation to sit in court. Is everybody getting a lawyer? Is this right? Actually working or not? It is important for developing countries and you want to encourage the spirit of what we call (...), doing things for good. If you have properly integrated academic and community service programs, you can divide law students with a great opportunity not only to learn about lawyer practices but also serving the community as well.
Ok. What I want to do with you is an exercise we do when we deal with negotiation. And we’re all gonna do this I’ll just tell you what it is. In negotiation, and this applies to family violence cases. People usually come with what we call positions. My positions. I want this, I want that. What we try to do is to move people from positions to interest “Why you want to do this? How can we win?” So I’m gonna play a game with you called as much as you can. Remember that. Win as much as you can. OK? It’s usually based on arm wrestling it’s difficult to do it here. You gotta be in teams of two. It’s easy to do it here than in Iran because in Iran, men and women who are strangers can’t hold hands. In Turkey, everything is OK. What I want you to do is I want you to all stand up, find a partner, and that includes the vice chancellor. We are all equal here and this is winning as much as you can. OK now this is how you score in this game. Put your hands to your side, and you gotta pull the person’s hand across until it hit your thighs. We gotta score by pulling. You pull your partners hand if hands hit your legs you score. You all got your partners. Everybody got a partner? All right remember, teams of two or three doesn’t matter. Win as much as you can. Get set. Go go go. Ok stop. Now remember, the name of the game was win as much as you can in teams of two. All right how many of you get “5”. Mr. President, how many did you get? Zero? How many did you guys get? Four-One. Five. How many did you guys at the back get? Zero-zero. Did anybody get 10? Yes. All right come here and show how you got twenty? Watch these guys. All right, hold it. Why did you do that? (We both wanted to earn as much as you can). You were teams of two, and you wanted to earn as much as you can. You were a team. You didn’t have to have the position I want a fight, to win we must cooperate as much as we can. We move from a position of “I wanna win and I wanna win” to “hang on now. We’re a team here guys, let’s cooperate”. Same thing happens with domestic files and family violence. That’s it. Thank you very much for your time.
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