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Legal Education and the Justice System John Delaney QC Hon Attorney General 06Oct10 “Legal Education and the Justice System” Speaking Notes ‐ Attorney‐General John Delaney, Q.C.

(Wednesday, 6th October 2010, LL.B.

Programme “Brown Bag Lunch and Learn Series, 12:30 p.m., Choices Restaurant, College of the Bahamas).

[Recognition of Guests according to recognized protocol…Ladies and Gentlemen, students, Good afternoon.]
I begin by thanking the organizers of this event, in particular, Mr. Raynold Cartwright, first ‐ for the kind invitation to join you for lunch, and second ‐ to participate in your exciting series of legal discussions known as the “Lunch and Learn” series.
I am old and wise enough to know the truth of the saying there is no such thing as a free lunch… and so my “quid pro quo” is to engage you in a legal dialectic for a few minutes on the topic of your choice, which is “Legal Education and The Justice System.” May I also commend you for keeping this initiative going and providing a public forum for frank discussion and exchange of views on various legal issues.
People sometimes forget that one of the greatest functions of a university, or centre for higher education, is not just to provide knowledge and learning activities for its enrollees, but to disseminate public knowledge and learning to the wider society.

Having said that, I note you have allotted 25 minutes for the presentation and 15 for questions and answers.
I would rather that the time allocations were in an inverse proportion, for I have always subscribed to the view that the Socratic method of question and answer is a more effective way to exchange ideas and views.

In that vein, I therefore propose to be brief in my presentation, and leave the lion’s share of the time for discussion.

I now turn to the topic that is today’s grist for the mill: “Legal Education and the Justice System”.
It is interesting that the invitation letter from the organizers to me disclaimed that ‐ the topic “is not etched in stone”.

I thank you for permitting me this flexibility in deciding my approach to this topic, for it is one which is very broad and encompasses a multitude of things.
Additionally, it is not always easy 1 Legal Education and the Justice System John Delaney QC Hon Attorney General 06Oct10 to discern the link between legal education and the functioning of a proper justice system (as I shall indicate presently).

So, I propose to set the following parameters for my presentation: First, I will approach the topic from the perspective of the legal education and training of law students.
This is to distinguish it from the concept of public legal education (PLE), which refers to the growing trend of providing legal education to the public to ensure that citizens are empowered to better able deal with and take control of their legal problems.

[This is a topic for another day.]


Secondly, for the purposes of my presentation, I have assumed that you are using the term “justice system” as not simply denotative of the legal system, but to connote the qualitative aspects of a system that actually incorporates notions of social justice and equality.

Thirdly, I do not propose to advance a single or fixed definition of justice, for it is not a concept that is easy to define.
The late Lord Justice Denning, with the elegant simplicity that adorned much of his judicial and extra‐ judicial writings and speeches, once elaborated on the concept of justice this way: “Justice is not a temporal thing; it is eternal; a thing of the spirit; and the nearest approach to a definition I could give is that justice is what the right‐thinking members of the community believe to be fair.”1 Of course Lord Denning was speaking of the end product.
But I conceive of such a system as one in which there are a combination of ideals, which all come together to produce a legal system that is just.

Some of these are as follows: • equality before the law, 1 Lord Denning, “The Freedom of the Individual Today” (1977) 45 Medico‐Legal Journal , 49 at 55.
2 Legal Education and the Justice System John Delaney QC Hon Attorney General 06Oct10 • access to justice for all, and • an overarching aim to achieve a truly equitable outcome to legal disputes, regardless of the situation or status of the disputants.

And so the questions I pose are these: How might legal education and training be made to influence the attitudes, professional values and beliefs of law students?
and How might such training be distilled into the legal system to improve the attainment of justice?

Origins of legal practice linked with concept of justice It might interest many of you to know that, historically, the tradition of the practice of the law was rooted in, and to a large extent had its genesis in, the notion of justice.

Indeed, the profession originally evolved out of providing advocacy assistance to poor litigants for no fee.
As a matter of fact, the lawyer’s traditional robes that we wear today still bear the hallmarks of this.

There is a flap at the back, which now serves no ostensible purpose, but is a reminder of what use to be a pouch or pocket for tips to be deposited from grateful supplicants, otherwise many an altruistic advocate would have starved.

We have come a long way from those days.


In modern times, the once noble profession of law has become more of the business of law, and the public perception of lawyers has shifted from that of agents of justice and protectors of rights, most regrettably, to that of persons driven by greed and avarice…indeed, modern day plunderers.
Because of the many subjective factors involved in the practice of law, and the justice system, it is difficult to make an empirical assessment of the extent to which law schools have been culpable in this change.
But it cannot be denied that the law schools have aligned their curriculums and teaching methods towards producing students who are able to thrive in this highly competitive 3 Legal Education and the Justice System John Delaney QC Hon Attorney General 06Oct10 corporate legal context, at the expense perhaps of educating them as to their social and public responsibilities.
This is ironic, for studies have been conducted which indicate that students actually would prefer to have justice‐oriented components as part of their legal training.2 Unfortunately, this interest seemed to wane the longer the student was in the legal education system.

Thus, I propose to examine very briefly some possible ways of adding social justice content to legal education.
Teaching of the law I start by looking at the traditional way in which law is taught in many universities, but I do so against the backcloth of a quotation from the late Professor of Law Max Radin, writing in the California Law Review in 1937, who states that: “…the lawyer’s task is ultimately concerned with justice and…any legal teaching that ignores justice has missed most of its point.”3 Of course, Professor Radin was writing at a time when the “sociological jurisprudence” propounded by academics such as Dean Roscoe Pound of the Harvard Law School was making its mark on American jurisprudence.
This approach advocated a move away from what its proponents called “mechanical jurisprudence” or “formalism”, often associated with the common law system and doctrine of precedent or stare decisis.

Instead, Dean Pound championed an approach that would draw on disciplines other than law, where the judge would be more attuned to the impact of legal doctrine on society and strive for an equitable application of law to reach just results.
I mention this historical digression because the sociological jurisprudence approach had profound implications not only for the process of judging, but for legal education.

For it was also the view of Dean Pound and his followers that law students should therefore be trained in the other disciplines, including the political and social sciences, as part of their diet of legal training.

2 One such study was conducted at the University of Queensland, Australia, in 2006.
See, Walsh, Tamara, “Putting Justice Back Into Legal Education” [2007] LegEdRev 7; (2008) 17 (1 &2) Legal Education Review 119.

3 Max Radin, “The Education of a Lawyer” (1937) 25 California Review 676, 688.

4 Legal Education and the Justice System John Delaney QC Hon Attorney General 06Oct10 By contrast, the teaching of law, especially in the common law systems (such as we subscribe to) has traditionally focused on the teaching of black letter law.
The curriculum is dominated by a list of core law subjects such as torts, contract, property, equity, trusts, corporate law and evidence, constitutional law and administrative law.

In our context, it is perhaps only during the phase of the professional training for the CLE or at bar school that the law student would be introduced to the study of professional ethics and perhaps some practical dealings with client in a legal clinic setting (of which more will be said later).
But generally, the teaching of law has become so homogenized that it has prompted one observer to note that legal education has become “universally the same shade of grey.”4 This is not to say that a comprehensive knowledge of black letter law and legal theory are not important.

The fact is that the bulk of a lawyer’s work requires forensic skills such as legal research, analysis and reasoning.
However, it is obvious that the practice of lawyering in the 21st century will require a more multi‐dimensional and well‐rounded approach to legal education, especially if we are to attain the ideals of a legal system that is more oriented to attaining justice.
For example, in a recent report, the Wisconsin Commission on Legal Education5 listed the following skill sets and values, which it was of the opinion that the legal education process should try to inculcate in students preparing for practice in Wisconsin.
The ten legal set skills were as follows: (1) problem solving; (2) legal analysis and reasoning; (3) investigation; (5) communication; (6) counseling; (7) negotiation; (8) litigation and alternative dispute resolution; (9) organization and management of legal work; and (10) recognizing and resolving ethical dilemmas.
It identified the four core values as follows: (1) provision of competent representation; (2) striving to promote justice and fairness; (3) striving to improve the profession; and (v) professional self‐ development.

legal research; (4) factual 4 Cited in Thornton, Margaret “Portia Lost in the Groves of Academe Wondering What To Do Aoubt Legal Education (1991) 9(2) Law in Context, 9, 19.
5 See for example, Report of Commission on Legal Education of the State Bar of Wisconsin, accessed 10/1/2010, at https://www.wisbar.org/.

5 Legal Education and the Justice System John Delaney QC Hon Attorney General 06Oct10 As you can see, the second core value is to promote justice and fairness, (of which I shall say a bit more later on).
But the important idea to note is that it is being advocated within the context of required legal training, not suggested as an ideal that law students should seek to aspire to as part of their individual or personal development.

Can legal teaching instill a sense of social justice in law students?
One of the ways in which it has been suggested that teaching can incorporate a sense of social justice in the justice system is to expose students to curriculum offerings in the classroom that promote a sense of public service or social rights.

For example, courses such as Poverty Law, Welfare Law, Human Rights and even Comparative Law, could be part of the mainstream black letter courses offered to students.
Comparative law, for example, involves consideration of the attributes of different legal system, which students may be able to draw on to enhance or achieve a better understanding of the multi‐dimensional nature of the law.

(Note, for example, the African countries (e.g., Ghana) which still maintain both a formal justice system and informal means for resolving disputes, such as recourse to customary chiefs and village elders.)
These practices are excellent examples of the principle that law should be made to work in a social context.)

Yet is not surprising that even where such course are available as electives in universities, they are very unpopular, as students will necessarily gravitate towards those course that make them more marketable.

However, it is suggested that some of these course could be made mandatory course rather than electives.
I am aware, for example, that in the past decade the premier academic legal facility in the region, the Faculty of Law at Cave Hill Barbados, has introduced courses such as Alternative Dispute Resolution (ADR), Gender and the Law and Poverty Law into its offerings.

This is a good start, but these options need to be expanded and students encouraged to pursue them.
6 Legal Education and the Justice System John Delaney QC Hon Attorney General 06Oct10 Clinical Legal Training The importance of clinical legal training in this aspect is not only that it provides some practical, hands‐on experience in dealing with legal matters and clients.

It exposes students to dealing with disadvantaged persons and hopefully helps to engender a sense of social responsibility and empathy for those most unable to access justice.
law students come from relatively privileged Typically (but not always) backgrounds, and the association with the variety of persons low on the social strata provides a veritable education of how law impacts the lives of people at different levels.

Pro‐bono work Another component to augment the traditional approach to legal education is to encourage pro bono work for students.
This could be done by linking students with community organizations that require legal assistance or community law centres that provide legal and related services to the community and minority groups.

Indeed, in many countries with civil law systems (our neighbouring country of Haiti is an example), a certain amount of pro bono work is often a requirement for admission to the practice of law.
And it is likely that lawyers who are exposed to such activities during their training years will continue to keep it as a part of their practice well into their professional careers.

ADR As already mentioned, there is a significant move afoot both in academia and in the legal systems to embrace training in ADR as part of the mainstream legal teaching and practice.
It has become well recognized that training in alternative dispute resolution techniques such as mediation and negotiation makes for better lawyers.

For one, it allows lawyers to offer a wider continuum of dispute resolution mechanisms to their clients, as opposed to the traditional adversarial techniques.
Not only may ADR be cheaper and quicker, but it may avoid the 7 Legal Education and the Justice System John Delaney QC Hon Attorney General 06Oct10 irreparable harm done to relationships that sometimes results from litigation, and hence produce a more just and socially acceptable outcome.

Adopting a dual “skill set” and “values” driven approach to legal education and training.
I mentioned earlier the recommendations of the Wisconsin Legal Education Commission with respect to its core skills sets and values recommended for the training of lawyers.

A similar approach could be adopted in our system, where greater prominence could be placed on training activities to develop values, attitudes and the emotional intelligence of lawyers.

Measuring the impact of such training on the justice system.
Unfortunately, and as I alluded to in my opening, the mere fact of adding a justice content to legal education and training, will not yield any direct and immediate impact upon the attainment of justice.

Evaluation of the outcomes of such training involves consideration of its longer‐term effects, which may not be realized for years or even decades down the road.
For example, the practical results may only be achieved when such graduates become fully fledged members of their legal fraternity (which may take years), or perhaps even become judges (which might take even longer), and are then able to directly influence improvements in the administration of justice, and access to justice.
Conclusion In conclusion, it is evident that lawyering in the 21st century is going to demand a paradigm shift in the way we train and sensitize lawyers, if we are to regain our once vaunted positions as ministers of justice and agents of positive social change.

Legal education and training will have to adjust to include social and public service components such as ADR, restorative justice, values training, pro bono work, etc., as key components and not additional elements of legal training.

Thank you.

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