Abstract
Law clinics form part of the law faculties of universities and play an important role in the practical education of law students. Students, mostly in their final year of legal studies, are educated and trained with regard to aspects of legal practice, which education is to a large extent conveyed to them by letting them do practical work at law clinics. This teaching method – which is not necessarily the only teaching method followed by all law clinics – may form part of the curriculum of the particular law faculty. This article is based on a particular teaching method followed by some law clinics called the live client teaching method. In terms of this teaching method, law students assist indigent members of society by providing them with legal advice, as well as with other legal matters, thus providing access to justice to the public. In doing this, the students gain knowledge by observing and executing certain tasks. This is known as experiential learning. Furthermore, it goes without saying that because law clinics form part of the law faculties of universities, this particular type of teaching and learning must include an academic component. Therefore both practical (providing access to justice) and academic (teaching and learning) components are of importance in ensuring that the students undergo the best possible practical legal training. Together, these two components culminate in clinical legal education.
Access to justice in the context of this article simply refers to a person’s access to available and applicable legal remedies, as well as the provision of legal representation for such a person. It is important that the law should be accessible to everyone in society, not only to people who can financially afford the services of attorneys and advocates. The Constitution, which is the supreme law of South Africa, contains a bill of rights which provides in section 34 that “[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”. In this regard the bill of rights must be interpreted in a broad manner to mean that people do not have access only to the courts and other fora with regard to the resolution of legal disputes, but also to legal practitioners who can provide the necessary legal representation for them.
Clinical legal education is usually provided to law students at law clinics by practising attorneys known as clinicians. Clinicians must have a sound knowledge of the management of a legal practice and must have a good overall comprehension of substantive law in order to properly educate and train the law students for entering into legal practice after completion of their studies. Clinicians therefore fulfil a dual task, namely being educators as well as legal practitioners. They must train the law students in a way that keeps the reputation and overall professional esteem of legal practice in high regard. The training of the students includes consultations with members of the public regarding legal problems which they may be experiencing, drafting of professional-sounding legal letters and other legal documents, as well as the general application of their legal knowledge and legal ethics as required by legal practice. Apart from practical training at law clinics, classroom training sessions can also be arranged, during which students undergo additional training in a practical way. Such training can include basic rules of legal writing, basic professional and practice ethics, aspects of civil and criminal legal practice, and mock trials. Students may be required to complete written assignments, including the drafting of letters of demand, contracts, wills and testaments and pleadings, as well as to develop their civil and/or criminal litigation skills and understand the rules of evidence and general court etiquette during the mock trial sessions.
It could, however, occur that one of the academic or practical components of clinical legal education is preferred to the other. This may result in the students’ not being exposed to the neglected component, for example that the practical training of the students is not material and complete. There may be various reasons for this, for example where a clinician wants to focus only on the provision of legal services to the public, resulting in minimal attention being given to the education of the students. The opposite may also occur: students not being afforded the opportunity to have direct contact with members of the public because a clinician does not allow it. He or she may feel that the students are not fully capable to have direct contact with the public, or that a system by which the students gain experience by way of observing a clinician’s actions and learning from that which they observe – i.e. by osmosis – is sufficient for their training purposes. However, as already stated, it must be kept in mind that clinical legal education is either a compulsory or an elective course within the LLB programme and that it entails a particular and set curriculum that must be adhered to. Therefore it is crucial to see to it that all components provided for by a particular curriculum are being thoroughly attended to.
The point of departure is that where a law clinic employs the live client teaching method with regard to legal matters which may require litigation, there must be a balance between access to justice and the practical teaching and learning of the law students. The appropriate balance between these two components will be determined, as well as ways in which it can be restored or implemented if it does not exist. In this regard, the particular law faculty, or the department of the faculty within which the law clinic resides, may become involved in creating or restoring the desired balance. Law faculties must ensure that the appropriate persons are appointed as clinicians at law clinics. Clinicians must also develop their own clinical legal education skills by attending relevant training courses. The ideal teaching methodology involves a circular combination consisting of the following: students gaining experience, reflection by the students relating to their experiences, students understanding legal theory, as well as application of such theory by the students during their practical sessions at law clinics.
The argument forming the basis of this article is that law students must undergo training while they are in the process of providing access to justice to members of the public. The conclusion is that educating the student is the most important component and that access to justice must emanate from that, as well as complement it.
Keywords: access to justice; clinical legal training; clinician; experiential learning; law clinic; live client teaching method; osmosis; portfolio
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