Problematizing Competence in Clinical Legal Education : What do we mean by competence and how do we assess non-skill competencies ?

“Techniques without ideals is a menace; ideals without techniques are a mess.” Karl Lewellyn (1952) INTRODUCTION The special issue of this journal is about problematizing assessment. However, in this article I want to start further back and problematize what is meant by competence. I think it is fair to say that when law clinicians speak about assessing competence they usually have in mind the assessment of skills. By contrast, I will argue that competence goes well beyond skills, at least if we understand skills in the narrow sense of technical legal skills, and includes in addition a values dimension. Moreover, if this dimension is added to the notion of skills, and clinical legal education (CLE) is expanded to include an understanding of how lawyers’ skills are used, for whom and to what end, it might help reverse the traditional and still continuing antipathy in many law schools to CLE. For those like myself, who see law clinics as more about contributing to social justice than legal education (Nicolson


INTRODUCTION
The special issue of this journal is about problematizing assessment.However, in this article I want to start further back and problematize what is meant by competence.I think it is fair to say that when law clinicians speak about assessing competence they usually have in mind the assessment of skills.By contrast, I will argue that competence goes well beyond skills, at least if we understand skills in the narrow sense of technical legal skills, and includes in addition a values dimension.Moreover, if this dimension is added to the notion of skills, and clinical legal education (CLE) is expanded to include an understanding of how lawyers' skills are used, for whom and to what end, it might help reverse the traditional and still continuing antipathy in many law schools to CLE.For those like myself, who see law clinics as more about contributing to social justice than legal education (Nicolson 2006), the reluctance to embrace CLE is rooted (rightly or wrongly) in a political and moral stance.But for most academics, the antipathy -or, at best, apathy -towards CLE might be more to do with its association with skills training and the consequent assumption that it is unintellectual, unfit for the lofty heights of a liberal legal education and thus best left for the grubby business of preparing lawyers for practice (see eg Bradney 1995, 2003, Brownsword, 1999;Guth & Ashford, 2014).
To the extent that CLE is confined to training students in legal skills, I have some sympathy with this view, though it's questionable whether skills training is any less intellectual than the sort of repetitive, decontextualised and atheoretical teaching of black-letter law which often passes for a liberal legal education.However, in a recent article (Nicolson 2015), I joined a number of others who have argued that there is nothing necessarily anti-intellectual about a focus on practice in a liberal legal education.Thus, like Goldsmith and Bamford, I do not see engagement with practice in purely vocational or technocratic terms, but as providing opportunities for connecting the "aspirations of law students with professional ideals (justice, service, fairness) and the goals of a university-based education" (Goldsmith and Bamford 2010, p. 163; see also Goldsmith 1999Goldsmith , 2002;;Boon 1998, 166).
In this article, I first flesh out this argument and justify the focus on ethical as well as skills competence in clinical legal education.I then turn from problematizing the concept of competence per se to problematizing its assessment.This will be done via a critical analysis of the forms of assessment used in the clinical programme offered in the University of Strathclyde Law Clinic (henceforth, the USLC).These include the assessment of simulated training exercises, work on actual cases, reflective essays on aspects of law, legal ethics and law's justice and reflective diaries on all aspects of clinical experience.Drawing on my experience with these different forms of assessment, I will consider their comparative merits in contributing to the two classic goals of clinic assessment, namely reliability -whether the scores obtained from an assessment are reproducible -and validity -whether the assessment does in fact measure what it is intended to measure (van der Vleuten and Schuwirth 2005).
Finally, drawing on the assessment regimes in the relevant clinical classes, I will seek to provide some food for thought about alternative means of assessing clinical teaching.

PROBLEMATISING THE NOTION OF COMPETENCY
Most people think of competent lawyers as those who are knowledgeable and technically skilled at using law in the service of clients.Assessment of competence is thus not made in terms of ethics and values -indeed they suggest a perceived mutual exclusion of technical and ethical competencies.Such a dichotomy is, however, both dangerous and false.It can be seen to be dangerous when we ask ourselves the question -do we really want lawyers who are highly skilled at achieving client goals when it is those with power and money who can afford such lawyers, while their opponents either have lawyers who are overworked and underfunded or have no lawyers at all?
The dichotomy between skills and values is, in addition, false because lawyers with ethical competency may in fact be more effective lawyers than those who are merely technically competent.Indeed, this is at least implicitly recognised by those (cf Chavkin, 2003-4, 254) who seek to train students in client-centered lawyering (see eg Binder, Bergman, & Price 1991) in that always seeking clients' informed consent to actions on their behalf helps to promote their autonomy and avoids the paternalism which is inherent in more traditional approaches to client relations in which lawyers make all decisions about how to achieve client ends (see eg Nicolson and Webb,ch 5).Ostensibly, the traditional approach leaves clients free to set their own ends, but this means-ends distinction is unsatisfactory for a number of reasons.
One is the fact that power and (at least, assumed) knowledge asymmetries between lawyer and client may encourage the latter to defer to the former on issues regarding ends as well as means, especially if clients interpret a lawyer's suggestions as to what they should seek to achieve as technical advice.Another reason is that some decisions as to means might be so significant that the client really should take them rather than the lawyer.For instance, the most effective means to win a child access dispute might be to attack the opposing parent's character but -and especially if this is done using information provided by the client -this might not accord with the client's best interests or even his or her wishes (let alone those of the children), given that they are likely to benefit from an ongoing amicable relationship with the opposing parent.But even under the client-centered approach, unless they are exposed to the full range of issues relevant to the issue of paternalism, students might not become aware of their ability to sway clients even while affording them the power to decide (see eg Ellman 1987).This may occur through decisions as to which of the (sometimes myriad) options on offer to put to the client, the way that the choice of alternatives are structured and/or merely by tone of voice in presenting options (Simon 1991).
Improved client service can also be achieved by challenging the standard conception of lawyers' role morality in terms of which lawyers are expected to pursue their client's goals irrespective of how immoral they might be or how immoral the means to those goals.Such a stance -often called that of neutral partisanship (see eg Nicolson and Webb 1999, ch 6) not only poses dangers for opponents, third parties or the public interest, but arguably it may also result in inferior services to the client.
If lawyers see issues of morality as off-limits, they will not engage their clients in what ethicists call a moral dialogue in which they explore whether certain courses of action are moral and can justifiably be pursued.Such moral dialogue is not just a necessary component of what is called moral activism (see Nicolson and Webb,ch 8), as opposed to neutral partisanship, but it may provide a better service to the client.For instance, in one case the USLC was acting for a trainee solicitor made redundant by a law firm while pregnant.She mentioned in passing that the same partner responsible for this decision has been accused of sexual harassment.But instead of just going ahead to use this information as a bargaining chip, having studied ethics, the student asked the client how she felt about using this information and surprisingly learnt that she was not prepared to stoop to using this "dirty trick" (see Nicolson 2010 for this and other examples;Aiken, 2000-1, 304 for a similar example).
Encouraging students to abandon the stance of neutral partisanship may also lead to more empathetic and zealous services for those who do not have the financial resources to buy maximum lawyer zeal.There is a strong argument (see Nicolson and Webb, 1999, ch 6) that neutral partisanship leads to moral detachment, in terms of which lawyers seek to psychologically distance themselves from their moral feelings and beliefs.But this can be argued to hamper the development of the Aristotelian quality of phronesis (practical wisdom), in terms of the lessons of past experience equip lawyers to instinctively know how to respond to practical and ethical issues which arise in practice.According to Postema, phronesis is rooted in "ordinary moral beliefs, attitudes, feelings and relationships" (1980,78; see further Postema, 1980, 68ff;Postema, 1983, 306ff) and is extremely useful in professional contexts where novel situations arise (see also Kronman, 1987 and1993).Moral detachment may also hamper effective lawyering in the sense that moral arguments may play important roles in legal argumentation (cf Postema, 1980, 79).Lawyers who have shut off their moral faculties are less able to manufacture such arguments than are those with deep moral sentiments.
The neutrality aspect of neutral partisanship may also undermine the principle of partisanship with requires lawyers to represent their clients zealously.While written discourses on professional legal ethics certainly encourage lawyers to exercise the utmost zeal, the rules allow them a broad discretion to exercise greater or lesser zeal (Nicolson and Webb 1999, ch 6).Such zeal can be so fierce as to run the risk of breaching professional norms on proper behaviour, or it can be so minimal as to come close to incompetence.However, according to the neutral partisanship conception and its allied strategy of moral detachment, the question as to how much zeal lawyers should exercise in particular cases ought not to be answered by considerations of morality.
Moreover, with the shutting down of moral feeling may also come a shutting down of related feelings of empathy, sympathy and concern.Having detached themselves from moral sentiments, lawyers can no longer see clients in their full humanity.The lawyer becomes interested only "in that part of the client that lies within his or her special competency" (Wasserstrom, 1975, 21).The plight of clients and the possibility of them possessing the moral high-ground are unlikely to lawyers who come to see clients as "the divorce", "the taking without owner's consent" or "no.20,Queens Road".This situation is given bathetic force by the comment of Paul Hill, one of the Guildford Four who spent years in jail following his wrongful conviction for murder, that he "got the impression that any of our barristers could easily have...taken over the running of the prosecution."(Stolen Years (with Ronan Bennet), 1990, 126, quoted in Pannick, 1992, 132.)Having detached themselves from feelings of morality and humanity, it is likely lawyers will ration zeal according to more material considerations: by the client's status, whether they are one-off or regular clients, by the need to maintain salubrious relationships with those with whom they regularly deal, etc, but above all by their ability to pay.A lawyer's time and energy are not infinite and given the pressures to provide legal services as a profitable business, money is likely to be the quid pro quo for zeal, and the more quid, the more pro.
We thus see that the competent lawyer is also an ethical lawyer who displays both technical competence and a concern for values.Ethics have a role to play in providing a good service to the client -including care, consideration and respect for clients' autonomy (as well as maintaining confidentiality and acting in their best interests).In this first sense, it is not too much of a stretch to see these attributes as matters of lawyering skills in that the good lawyer is not just technically skilful but has what might be called personal or even emotional skills.
However, the importance of ethics also has a second, wider (if you like, public as opposed to private) dimension.Thus, it can be argued that the good lawyer is not just good at their job.They are also good in their job (or just good full stop) in the sense of being aware of the wider moral dimension of being a lawyer.They are not simple amoral technicians prepared to do everything legal and not prohibited by their professional codes for their clients, but take account of the harm they might do to others, to the legal system and to the public interest.
Before looking at the role of law clinics in helping to develop this wider conception of competence, it must be stressed that even an expanded notion of competence which goes beyond knowledge, skills and ethics in the sense discussed above, does not go far enough because it does not extend to what I see as perhaps the most important ethical value.This is the sense of obligation to ensure that competent and ethical services are not just received by those with enough money to pay for them or fortunate enough to qualify for the constantly shrinking legal aid pot.As I have recently argued (Nicolson 2013(Nicolson , 2015)), notions of reciprocity or gratitude towards the community which through its taxes pays for school education and, still in Scotland, for much of the cost of legal education suggest that lawyers have a moral obligation to contribute in some way to enhancing access to justice.Public investment in their education enables law students to enjoy substantial financial rewards.However, only those fortunate enough to afford lawyers or qualify for legal aid benefit from this investment.Moreover, a major obstacle to access to justice is the high fees charged by lawyers.Consequently, it can be argued that these lawyers have a moral duty to take some remedial action to repay those who helped put them in their privileged position, but do not benefit from this investment.Two further arguments support a moral obligation on lawyers to enhance access to justice.One is that their earnings are partly -albeit decreasingly -protected by state limitations on who can practice law and access legal processes.Secondly, many access to justice problems, especially of a relative nature, stem from often unnecessary and difficult to understand legal complexities created by lawyers serving their clients (and indirectly themselves by making legal assistance more necessary).Here, lawyers can be said to have a moral obligation to help remedy the resultant access to justice obstacles.
Indeed, by analogy with Rawls's argument that "[j]ustice is the first virtue of social institutions" (Rawls, 1999, 3), it can be argued that the first virtue of the ethical lawyer is to ensure access to justice.It seems obvious to me that ethically aware lawyers who either devote their career to those most in need of legal services or provide pro bono legal services are an improvement on those who provide ethically aware services to the shrinking group of those who can afford to pay or obtain legal aid.In addition, the goal of making practitioners aware of problems with neutral partisanship, confidentiality, conflicts and client autonomy is undermined where their scope for moral manoeuvre is highly constrained by financial considerations which cast morality as an unaffordable luxury or where responsibility for ethics tends to fall into the cracks because of the increasing specialisation of legal work or completely out of sight because of its increasing routinisation (see Nicolson and Webb, 1999, ch. 3).
Accordingly, while it is difficult to stretch the concept of values-based competence to include the notion of an altruistic duty to enhance access to justice (except by unrealistically stretching the concept of competence to something like altruistic competence), I would argue that we are failing in our role as educators if we do not give due weight to this aspect of being a good lawyer.

THE GOALS OF CLINICAL LEGAL EDUCATION
Having problematized the notion of competence, I turn now to the possible role clinical legal education may have in instilling this expanded sense of competence and the expanded notion of the good lawyer.Van der Vleuten and Schuwirth correctly argue that choosing assessment always involves compromises ( 2005), but the same applies to CLE.Broadly speaking, CLE can be designed to serve four broad goals: • skills development, both in narrow technical and broader values-infused sense; • teaching substantive law in context; • ethical education -sensitising students to issues of legal ethics, providing them with the relevant tools to resolve them, and hopefully also encouraging them to care about being ethical and developing the moral courage to resist competing pressures (see generally Nicolson, 2008); • ensuring "justice readiness" -exposing students to social and legal injustice, including inequalities in access to justice and helping them to understand its causes and to care about addressing these causes (see Aiken, 2012;Wizner and Aiken, 2004;Nicolson 2015).
If all law teaching was conducted clinically, then it might be possible to achieve and give equal weight to all four goals, but resource implications mean that most law schools restrict clinical legal education to a term or two, and/or only to a limited number of students.This restricts what can be achieved.Consequently, most clinicians need to make choices as to which of the goals to prioritise when they clash.
For instance, if one's goal is to maximise justice readiness then exposing students to as many vulnerable clients as possible broadens their perspectives on the injustice of the world they live in and the extent to which law is either unable to rectify these injustices or is even responsible for them.Thus, drawing on educational theory, many clinicians claim that student exposure to clients may cause "disorienting moments" (Quigley, 1995) whereby their pre-existing assumptions about the world clash with their observation of social deprivation, unequal access to justice and substantive legal injustice.Moreover, when the experience is that of someone in dire need and it is realised that they may have no source of assistance, knowledge may be transformed into empathetic care and hopefully into a commitment to enhance access to justice on graduation.However, for these insights to go deep, exposure to the problems of social and legal injustice need to be repeated -with the greater the exposure the more varied are the problems students will encounter and the more they will realise that these problems are endemic rather than exceptional (Aiken, 1997;Wizner, 2000-1;Nicolson, 2008;Brodie, 2008-9).Clinics with a high volume of cases are thus better suited to ensuring justice readiness.By contrast, if the focus is on skills development (and possibly also substantive law teaching), students will benefit from a close relationship with clinic supervisors who can guide their learning and skills development and allow them to experiment with different ways of practising law so that they can help them to learn from their mistakes as they make them.This is why the Clinical Legal Education Organisation suggests a staff-student ratio of 1: 12 (CLEO, 1995, cited in Brayne, Duncan andGrimes 1998, 120-135), while the average in US is between 1:6 to 1:10 (McDiarmid 1990, 254-55) At the USCL, however, we have a ratio of around 1:150!This is largely because most students' involvement is voluntary.In fact, while the Law School wanted the clinic to be used for teaching the Diploma in Professional Legal Practice, I insisted that it be offered primarily to undergraduates and solely on an extra-curricular basis.At the time, I had a number of reasons for insisting on an extra-curricular clinic which prioritised enhancing social justice over legal education (see Nicolson, 2006), though these were not as thought through as they are now.
• Perhaps the most immediate was the concern, prompted by the apparent experience of other UK clinics, that students might abandon clients or deprioritise their needs once they have received the required credit for their work.
• Closely related to this, was the worry that the prioritisation of legal education over serving the community by the law clinic itself and its staff conveys an implicit message to students that their interests -now education, later commercial -trump those of clients and the community.In my view, there is also something inherently morally problematic about practising law on the poor (rather than for the poor) -even if the latter do benefit from such practice.
• More recently, I have formed the view that all those who benefit from legal education -including those who make their living by teaching law -have a moral obligation to ensure that these benefits extend to all in society, not just to those who can afford lawyers' fees or qualify for legal aid (see Nicolson 2013Nicolson , 2015)).Students can volunteer to provide free legal services to those in need while at university and subsequently either continue to volunteer or better still devote their career to assisting the most vulnerable rather than the most wealthy in society.Staff can help run or support law clinics and/or sensitise students through their teaching to issues of unmet legal need, and wider legal social and injustice.This last point shows that law clinics can play both a direct and indirect role in promoting justice: directly by providing legal services to those most in need; and indirectly by developing in students a commitment to do so after graduation or at least sustaining a pre-existing commitment to do so (see Nicolson 2006Nicolson , 2010)).
Moreover, if both these roles are going to be maximised, then it follows that clinics should seek to maximise both the number of students involved and the length of their involvement.More students mean more cases or other forms of community service (law reform work, street law, etc).And the longer the student involvement, the greater their exposure to both the problems of justice and the satisfaction of helping others, and hence, according to educational theory (Nicolson 2006), the greater the possibility of them developing the habit of helping others.Obviously, these two desiderata are in conflict -all things being equal, increasing the number of students involved means that the involvement of each students will be reduced, and vice versa.At USLC we balance these two considerations by providing places for about a third of all undergraduates to serve in the clinic for the duration of their studies (anything from three to five years for full-time students).Thus, we currently have 280 clinic students (though only 225 are trained to engage in face to face client work as opposed to online advice, law reform, public legal education and investigating alleged miscarriages of justice).
However, after the USLC's launch in 2003, I gradually came to realise that its entirely extra-curricular nature meant that it was not fully realising the potential of its "justice mission".This was not so less so as regards the more direct means of enhancing justice through providing legal services to those most in need.In order to maintain the quality and not just the quantity of service to the community, students undertake intensive induction training, have all letters, pleadings and other documents and case strategies checked and are encouraged to attend regular optional training sessions on substantive areas of law and advanced skills like body language interpretation and dealing with vulnerable clients.And it seems to workover the last few years over 90% of cases going beyond mere advice led to client goals being fully or partly met.
On the other hand, reference to the CLE literature (eg Aiken 2000-1; Wizner & Aiken, 2004;Adcock 2013) suggested to me that without a teaching programme, the USLC was not meeting its potential as regards the indirect means of enhancing justice through educating students to be "justice ready" (cf Aiken 2012).According to educational theory, the value of all forms of experiential learning lies, not just in the experience of putting knowledge into practice, but also in the reflection on that activity.As is so well-put in Brayne, Duncan and Grimes, learning from experience "occurs not in the doing but in the reflection and conceptualisation that takes place during and after the event."(1998,47).For instance, according to Kolb's well-known learning circle (see eg Kolb, 1984), reflection may lead to the adoption of new, or the adaptation of existing, theories about how to handle issues which can then be put into practice when similar situations arise.It helps "build the skills, values and modes of critical thinking required to frame and solve complex problems."(Casey, 2013-14, 320).
Reflection can be unconscious and subliminal (Calmore, 2003(Calmore, -4, 1172)).But it is likely to be more profound and long-lasting if time is set aside for the process and reflection is guided by the views of others, especially those experienced in the relevant activity or steeped in the relevant theoretical knowledge (Morin and Waysdorf, 2013, 606).Such guidance can be provided via feedback on written reflection or face to face in supervision meetings or in those attended by colleagues as well as teachers where all provide feedback, ask questions and make suggestions and generally deepen the dialogue (what some call "reflection circles": Morin and Waysdorf, 2013).Conscious reflection is also likely to be taken more seriously if assessed and particularly if this is done for marks (Van Tartwijk & Driessen 2009).However, the experience of seeing students integrate reflection and background reading on issues of ethics and justice persuaded me about the value of experiential learning as the best means of teaching ethics and seeing its potential to strengthen the indirect impact of clinics on social justice through fostering and sustaining "warriors for justice" (Nicolson, 2015).By not formalising what students learn from their case experience, I realised I was wasting valuable educational opportunities as regards ethics and justice teaching.No doubt the same applies to exploiting clinic work to develop skills and teach substantive law.However, I am not convinced that the academic stage of legal training should be required to produce practice-ready lawyers.Otherwise, there would have to be the resources to provide all students, many of whom will not go on to practice, with enough clinical and reflective opportunities to fully develop their skills.By contrast, not least because this task is not currently being carried out at the professional stage of legal training, I do think that it is the job of law schools to strive to make students justice-ready or, to put it in the language of liberal legal education, to help develop good citizens (eg Brownsword 1999).If successful, this will mean that those who do enter practice, will do so willing and able to contribute to redressing social injustice and practice in an ethically informed way.As stated earlier, I do not favour producing highly skilled and knowledgeable lawyers if those attributes are reserved for those who can afford to pay and used to cause even more social injustice on behalf of the powerful in society.

Clinical Legal Education and
But as also stated earlier, I was also initially concerned that providing students with credit for their clinic work would lead to them prioritising education and assessment marks over social justice and clients thus undermining the contrary message conveyed by the USLC's goals of directly and indirectly enhancing social justice.
However, after being in operation for a number of years I was convinced that the USLC's strong social justice orientation was being passed on from one generation of students to the next through an appointments procedure, supervision, mentoring and informal socialisation.As long as this ethos remained and participation was largely extra-curricular, I became confident it would be possible to maximise the potential for students to learn about ethics and justice from their raw clinic experience without undermining the clinic's message about social justice.
Consequently, from October 2011, Strathclyde law students have had the option of enrolling on a Clinical LLB (CLLB), albeit only if they first gain admission to the USLC through an interview which assesses their commitment to social justice.
The CLLB integrates and assesses students' clinical training, case work and reflection on their clinical and educational experiences.It is not a totally separate degree to the standard Strathclyde LLB.Instead, students take all the standard LLB classes except for Law and Society which is replaced by Legal Theory (thus negating any suggestion that CLE is anti-intellectual).However, at least a third of the classes taken by CLLB students must have a clinical element.Four of these are compulsory: • Legal Methods (Clinical) adds training basic legal skills (client interviewing, letter writing, case and data management) as well as an introduction to legal ethics to the standard legal methods class; • Voluntary Obligations (Clinical) augments the standard contract class with training in the skills of advanced legal research, negotiation, advocacy and pleadings drafting in the second semester of the first year; • Ethics and Justice, taken in the first semester of the final year, involves the renamed Clinical Legal Practice class; • The new Clinical Legal Practice does not involve any teaching but gives students marks for case performance and for reflective diaries which they must write in the second and third years of the CLLB.
In addition students must take at least two 2 "clinically available classes".These are standard compulsory or optional classes whose subject areas are likely to arise in clinical cases.Where a student has a case relevant to one of the clinically available classes they can opt to replace a portion of the assessment for the standard class with an essay in which they explore the legal, practical, factual, ethical, justice and/or political issues arising in one or more of their past or current clinical cases.Thus, apart from the various forms of assessment in the standard LLB, the CLLB has a variety of forms of assessment, both in terms of what is being assessed and the manner in which it is assessed.The rest of this section will provide a critical evaluation of each in turn.

General Skills -Case Performance
One obvious, but as I shall argue, problematic form of assessment involves performance in case work.Thus, 50% of the mark for the compulsory Clinical Legal Practice course is devoted to assessment of the student's performance in five of their cases.Where, as is usually the case, students have conducted more than five, they 2 Or one if they are doing the two-year accelerated version taken by non-law graduates.To avoid undue complexity in the following discussion, I will henceforth only refer to the standard three year CLLB.In addition most of those taking the latter degree will go onto an Honours year where they take at least another two clinical classes and/or write a dissertation on a clinical topic.
• There is also relatively speaking a much smaller clinical educators community in the UK and certainly in Scotland, as compared with the US, Australia and South Africa, for instance.
• It is difficult if not impossible to get appropriate moderation or even feedback from other supervisors and from externals on the marks allocated to a particular case if as is certainly the case with externals, they have not been involved in observation of the case performance.
Colleagues and externals can of course review the written file, but not any other aspects of case performance.This highlights two other main problems with assessing case performance.The first is that, unless the supervisor attends every single client interview, negotiation and court appearance (which in my view would lead to an unwelcome reduction in the quantity of clients served), they cannot assess overall case performance except in terms of how successful the outcome was.Even then, there may be no way of knowing whether this was due to luck or the student's ability when the case was successful and whether the student still performed well despite a disappointing result.Given this difficulty, students who keep an impeccable file and produce impressive documents may get a high mark despite an otherwise poor performance, and vice versa.This obviously leads to arbitrariness in marking -a problem exacerbated by the huge role fate plays in terms of what sort of cases are allocated to students.Thus, cases allocated to students range from the very simple, when clients need only to be interviewed and given advice on simple matters to month-long disputes ending in litigation and even an appeal.How does one compare the perfect performance of a few simple tasks with the competent, but inevitably not entirely perfect, performance in a case involving complex law, procedure and facts, well-resourced professionally legally represented opponents prepared to pull every trick in the book to win, and a possibly fractious court?To some extent one can apply a tariff approach as in sports like diving where simple dives performed perfectly do not receive full marks but very difficult dives can still get high marks despite not being perfect.But it seems unfair not to give full marks to students who do a perfect job given that they have no choice in what cases they receive.
One could of course abandon marking case performance and merely ascribe a satisfactory/unsatisfactory judgment to performance.But this would be unfair under current CLLB rules because one unsatisfactory decision would mean that the student fails Clinical Legal Practice and cannot graduate until they can gain another case and perform to a satisfactory basis.It also seems unfair not to reward students who have put in an enormous effort to assist clients in a caring and competent fashion.
Accordngly, students tend to get very high marks for case performance, leading to high overall marks for Clinical Legal Practice and eyebrows being raised at examination boards!Admittedly, the significance of these problems is reduced by the fact that the mark for case performance is limited to only 1/36th of their assessment for the CLLB (they take six classes each year) -or even 1/48 th if they go on to the Honours year (where another six classes are taken).Moreover, the extent of the problems of idiosyncratic case performance and the role of fate in obtaining cases, as well as the lesser problem of variance in marking standards between different markers,3 is reduced by the fact that students are assessed on their performance in five rather than one or two cases and hence disparities tend to even themselves out to some extent.

Specific Skills -Simulated Exercises
Nevertheless, I remain very ambivalent about marking case performance in live cases.I feel far more comfortable about marking performance in simulated exercises, even though live cases are likely to provide deeper (albeit less controlled) learning experiences than simulated ones.I am also persuaded, at least in theory, by van der Vleuten and Schuwirth's argument that it is better to assess overall performance involving a variety of skills than the separate assessment of discrete skills (2005,.In practice, however, it seems easier and fairer to assess carefully controlled simulated exercises involving one or only a few skills.And this is what we do in the initial two classes in the CLLB. In Legal Methods (Clinical) a statement of facts based on a simulated interview are each given a mark out of five, with a further five marks for reflection on the client interview (rather than for performance of the interview itself) 4 and fifteen marks for a report on ethical issues arising out of the interview (the remaining 75% of the assessment comprising an assignment testing standard legal methods issues).In Voluntary Obligations (Clinical), the 50% of class assessment devoted to clinical training comprise of: an in-depth research exercise on the sort of contractual issues that arise in clinic cases (25%); the drafting of pleadings based on the research (10%); and participation in either a simulated negotiation or advocacy exercise based on the same case (15%).Compared to the assessment of general case performance, we are able to give quite specific guidance on what is expected, can ensure fairness between students because of the simulated nature of the exercise and can ensure moderation by colleagues and externals as all exercises are either written or video-recorded.The only slight concern is that, once again, students tend to do better in such practical exercises, though this is offset by the fact that the clinical assessments replace aspects of the standard classes in which students also tend to do well.

Learning about Law -Reflective Essays
For their clinically available classes, students write an essay on a topic based on a relevant ongoing or past case which they set in consultation with me as the CLLB Director.Here, assessment guidelines are broad 5 because the idea is that the students take an issue or issues which they find interesting, challenging, surprising and/or on which they have already done some detailed research and would like to do more.In subjects like Legal Theory or Legal Process, the topics tend to be quite broad and not unlike an essay set by an academic except that they are sparked by an actual case.
For instance students might explore in Legal Theory what they have learnt from an employment case or cases about the alleged neutrality of law and in Legal Process whether mediation is always an appropriate means of dispute resolution.Topics in substantive law subjects can also be broad, such as the common topic of evaluating the effectiveness of a new rent deposit scheme, but very often they are more narrow, reflecting the actual substantive law question the student had to research in the case.
For instance, a recent essay in property law explored "the extent to which consent of a co-owner is a necessary requirement in the area of law concerning repairs and alterations?",whereas in employment law a student asked "Is the band of reasonable responses still effective as the determining test in unfair dismissal cases?
If not, is there a better alternative?"In this way, these essays reflect to a far greater extent the sort of enquiries lawyers have to make in practice as compared to the often artificial and unrealistic tasks involved in traditional problem questions in law.
But apart from the possibility that, as befits the more instrumental nature of research in actual cases, such essays are narrower than the standard essay questions in the class, there are only two real differences between reflective and standard essays.One is that students might already have commenced research on the topic in their clinical reflective essay and hence will from doing additional deeper research.The second is that they have chosen the topic out of interest or in order to assist the client and thus tend to put more effort into the essay.Both of these give CLLB students an advantage over other students, but this needs to be offset against the fact that they often have very large burdens imposed on them by their case work.Moreover, unlike other students on the class, they have to devote time to thinking of an appropriate essay topic and in most cases engaging in a number of exchanges with myself to ensure an appropriate essay topic.

Learning about Ethics and Justice -Reflective Essays
Similar considerations apply to the very similar reflective essays which form 50% of the assessment in Ethics and Justice where students are simply instructed to discuss "the relevant various justice and/or ethical aspects of a case undertaken by the student".However, before the student commences the essay, they will have first presented the case at one of the weekly one hour "case surgeries" that are held alongside more formal two hour seminars.In such surgeries students present a case that they think raises issues of ethics and/or justice and the discussion ensues on how the case might be resolved, what further issues are raised and what reading might be helpful in discussing the case.A topic is then set at the surgery or subsequently once the student has had time to conduct more research and reflection.
But apart from this, reflective essays on ethics like those on substantive law topics are not that different to standard essays or, more accurately, the dissertations which students have to write in their Honours year.Indeed, this gives CLLB students a head start in the art of choosing a workable research question for this dissertation.

Learning about Law, Life and Legal Practice -Reflective Diaries
What is even more novel for students and what they most struggle to get to grips with is writing a reflective diary -often called a journal or even turned into the horrible gerund "journaling".Diary writing starts in the second year of the CLLB after initial training is over.Students must produce a (roughly6 500 word) entry every fortnight in each semester (except in the semester when they take Ethics and Justice when entries are produced weekly).Half way through each semester, they are encouraged to hand in their entries for the first six weeks in order to obtain feedback.I read them and respond with the aim of getting them to think more deeply, raise related issues or suggest relevant reading.The students can then respond to these comments (in roughly 200 words) ensuring both a limited dialogue between us and that students take reflection more seriously knowing that it is being read and responded to (cf Van Tartwijk, & Driessen 2009).
For all semesters other than those in which they take Ethics and Justice, the issues on which they can reflect are very broad.Thus the Handbook states:

Relevant experiences on which you can reflect will include, most obviously, any case work, but also Clinic training, attendance at an IAC [Initial Advice Clinic], 7 and attendance at surgeries. As long as it somehow illuminates one of your various clinic activities, you may even reflect on what you have learnt in the standard LLB from, for example, classes in Legal Process on access to justice, classes in Legal Theory on substantive justice or ethics, and any class in which you learn law relevant and helpful
to the conducting of one of your cases.
For Ethics and Justice, students are told the diary should cover "the student's activities in handling cases and participation in case surgeries, as well as reflection on the student's performance, what they are learning from the class and from their clinical experience, and how they might improve their performance".
Given that reflection is for most students a novel experience, many struggle to know what to write about and how to go about reflection.As Morin and Waysdorf also found, "meaningful and effective reflecting requires that we teach students the process of reflection."(2013,603).To this end, the CLLB commences with a session on the theory of clinical legal education which specifically focuses.In addition, fairly detailed guidance on reflection is provided in the CLLB handbook (reproduced in full in Appendix B, below and repeated in a session just before students commence writing diaries for the first time.In addition to this guidance, students are provided with a number of diaries from previous years which received high marks, are invited to submit a diary entry as a dry run and are given face to face feedback after their first submission.
But it is clear that reflection is an art which is learned from practice and with the help of comments on diary entries, marks and general comments at the end of each semester.Many students comment on their difficulties they have at the beginning of the process, but equally many also comment on how they have come to appreciate the task and have learnt from being required to reflect on their experiences.This was particularly so with those students who took the option of providing an introduction to the diaries pulling together themes and providing a retrospective analysis of their First of all is the thorny issue of who out of the co-advisors is going to do the representation.This is left to the co-advisors to resolve, and needs to be dealt with delicately.
Preparing and representing at the hearing is obviously a highly stressful time, and it tests your strength of character and ability to relate to your co-advisor as well as the client.Dealing with clients in these stressful situations is also challenging, and this is where a good relationship with your co-advisor is essential.The importance of investing in establishing those relationships early on cannot be underestimated, and this made a big difference to me when I was faced with the challenge of representation.
As I have become more established in the Law Clinic I find that my reflections have turned to some of the more perplexing aspects of practitioner work: viz.what is substantive justice?and; can it be achieved?I am not convinced that I have found the answers to these questions, but what I have discovered is that there are many different ways of considering these questions, and that each case needs to be considered on its merits.I believe that the merits of a case go beyond what the black letter law says and extend to a consideration of the fairness of the situation, and the ease with which the client can advocate on their own behalf and represent themselves in a formal setting.I have discovered tensions around this issue given the finite resources that we have at our disposal.This means that tough decisions need to be made about who we do and do not represent.
In summary, the reflective process has caused me to consider some of the wider issues of client representation.It has opened my eyes to potential problem areas and constraining factors which could jeopardise a client's case.Time will tell, but I believe this has had a major influence on my development as a learning lawyer.
From this it can be seen the wide range of issues on which one student reflectedteamwork, ethics, justice (legal, substantive and access).To these can be added myriad others -from more practical issues of how to effectively represent clients, the values of clinical legal education, career choice to highly personal experiences such as being the victim of a sexual assault or witnessing a murder.The opportunity for reflection thus prompts students to prepare for their future careers and for the rest of their personal life.
The above extract from a student's introduction to her diaries also shows the value of students not just reflecting on experiences as they occur, but also on looking back to see how their views and behaviour have changed and how they now see themselves as persons and potential professionals.Indeed, it is now compulsory rather than merely optional to provide an introduction to each semester of diaries in which they take a more holistic view of their development.The other insight I have gained about reflection from my students' diaries is the value of the dialogue between myself and the student which results from my commenting on their entries.

Such academic intervention can:
• alert students to potentially problematic ethical and practical issues which they had not noticed or which if they noticed, had regarded as unproblematic; • expose them to new issues through imagining alternative versions of the facts of their cases or by asking whether a possibly immoral or impractical solution which they had not contemplated might ever be justified; • require students to clarify for themselves the exact nature of their stance on particular issues; • refer students to relevant reading to enhance their understanding of issues; • encourage students to adopt new perspectives in dealing with issues, think more deeply and in a more sophisticated way about issues they had raised or justify ethical or practical positions they had taken.
As an aside it can also be noted that reading the diaries has proved incredibly valuable, not just in aiding student development, but also in terms of running the Clinic and CLLB.For instance, having repeatedly read about the benefit of having to attend evening advice session staffed by pro bono solicitors, it was decided to make these compulsory for all first year Clinic -and not just CLLB -students.
A final point about the diaries is that, while marking them was at least initially unfamiliar, it gave rise to fewer problems than marking case performance.Although there is no core of knowledge to be conveyed as in more standard forms of academic work, like traditional academic assessments one is looking for insights and the use of existing learning and additional research.Consequently, although it has taken a while to put into words, I found it relatively easily to get a feel for what is poor, competent, good, etc work and have subsequently, with the help of external examiners and others who assess diaries, the marking scheme set out in Appendix B. Ensuring reliability of assessment would be helped enormously by having clinical staff co-marking with me (currently I mark all diaries).This is I think is one of the most effective means of ensuring reproducibility of results.In my experience, when markers discuss with and justify to each other the marks they give regard and certainly with the acquisition of knowledge, it is reflective diaries which are most important in this regard.Perhaps most importantly, the diaries encourage students to develop the habit of being a reflective practitioner -in other words lawyers who constantly reflect on what they are doing both after and also, later as they become more experienced, during behaviour (see eg Schön 1983Schön , 1995)).This process is enhanced by the fact that reflection on the CLLB occurs over a period of years rather than months.This opens up the possibility of students returning to issues they had previously encountered with similar but often subtly different experiences.This in turn ensures repeated circles of Kolb's learning circle and this may lead to the development of an increasingly nuanced "theory" of how to act in the future as subtle differences in the context in which an issue arises encourages adaptions to the initial theory of how to respond.I see this regularly in relation to ethical issues relating to the lawyer-client relationship.Indeed one student's experience in trying to negotiate an appropriate course between paternalism, which she first unwittingly displayed before being exposed to ethical theory, and acting in the client's best interests, which she completely ignored in her next case due to the desire to prioritise client autonomy, led her to write, part-time while working as a lawyer, a dissertation on the subject -surely a supreme example of life-long learning!In any event, even if such repeated reflection on the same issue does not occur, the process of regular reflection throughout the law degree is likely to make reflection a habitual aspect of the student's make-up which in turn is likely to enhance their competence in both its traditional narrower manifestations as limited to skills and its wider manifestations as argued for in this article.
I would like to thank Cees van der Vleuten for his very helpful and informative comments on an earlier draft.

Appendix A -Marking Criteria for Cases
Your case should be conducted and your files maintained in accordance with the rules and guidance contained in the Law Clinic Handbook, in particular the Practice Rules and the Law Clinic Guide.These documents contain a step by step guide on how to handle a case including, for example, the requirements relating to communication with your client, how your paperwork should be managed and what should be recorded on the electronic case management system.The table below gives an indication of the criteria used for marking your files.
Assessment at the University of Strathclyde I only discovered the value of experiential learning after establishing a clinical class as a reward to final year clinic students for their voluntary work.It was initially called Clinical Legal Practice, and involved a mixture of classes by practitioners on advanced clinical skills and classes on legal ethics and access to justice, but slowly the skills elements were dropped both because the students took to the other aspects especially legal ethics which they had never encountered and because of the difficulties discussed below with assessing skills through case work.Thus case work assessment was dropped in favour of greater emphasis on student reflection in a weekly diary on issues of ethics and justice arising in their cases, clinical experience more generally and in class seminars, and on a reflective essay in which students explore in more depth the issues arising in one of their cases.As a result of the shifted emphasis, the class was renamed Ethics and Justice.
growth.For example, one student provided the following overview of her years doing the CLLB: The process of keeping a diary and reflecting on case work has been a very helpful one in monitoring my development and learning.By taking time out to think about what I have done and how I have done it has helped to prepare me for what lies ahead in the legal world.I can see legal problems now as a mix of different issues which may allneed some attention or at the very least some consideration as potentially significant factors in whether we will act or how we do act if we decide to.I found that at the beginning of my Law Clinic experience I was concerned about client interactions and making sure that I was representing the client's best interests, and not acting in a paternalistic manner.As my experience grew in this area, and I began to get involved in cases which required representation, my focus turned to the myriad of issues which present themselves when a court or tribunal hearing looms.
No submission for comments No response or very thin response to commentsMarking the DiariesIn marking diaries, the following matrix will be used: