Teaching ethics experientially: using student diaries to foster and assess moral development

1. Teaching ethics experientially: using student diaries to foster and assess moral development Donald Nicolson, Director, University of Strathclyde Law Clinic

2. Aims • Look at teaching ethics experentially – why and how • Look at value of using student diaries in terms of: • Learning and teaching • Assessing learning outcomes and in particular student development • Building evidence of value of ethics teaching • Provides feedback on teaching methods (and clinic) • Possibly explore advantages and disadvantages of various methods of teaching ethics experentially

3. Teaching Ethics Experientially • Traditional Teaching • Lectures and tutorials and/or seminars • Assessed through exam and/or essay usually problem based • Experential (or Active) Learning • Learning by doing • Involves using a role or activity as an opportunity for discovery, application of knowledge and/or reflection • Process in which, by contemplating real or simulated experiences, we discover what is effective, successful or rewarding, and what can be improved. • May involve role-plays, simulations or live-client work • Assessed through performance in and/or reflection on experiences

4. Ethical and Educational Theory • Aim of Ethical Education • Ensure graduates ACT as ethical professionals – ie uphold high moral standards and contribute to access to justice (altru-ethical ethical professionalism) • Four necessary psychological components (eg D. Narvaez and J. Rest ‘The Four Components of Acting Morally’ in Kurtines and Gewirtz (eds), Moral Development: An Introduction • Moral Sensitivity • Moral Judgment • Moral Commitment • Moral Courage

5. Ethical and Educational Theory • Moral Character and Ethical Behaviour See (D. Nicolson, ‘Education, Education, Education: Legal Moral and Clinical’ The Law Teacher 42,2008, 145) • Teaching rules only develops sensitivity and only to limited extent • Teaching theory and application also develops judgment but not necessarily commitment and courage • Only character development ensures all four components – doing the ‘right thing’ needs to become a more or less spontaneous response

6. Ethical and Educational Theory • Moral Character and Ethical Behaviour • Moral character develops through actual engagement and experimentation with ethical issues, and particularly from feelings of satisfaction and regret, and from learning from moral exemplars • Law school cannot radically alter character, but it can at least help resist the hidden curriculum, confirm existing altru-ethical traits, and translate them into professional moral character and, and might even develop altru-ethical traits in some

7. Ethics and Educational Theory • Four aims of ethical education: • Inspire an interest in ethics • Illuminate the general and professional ethical tools available to resolve issues of professional ethics, and factors which affect resolution • Illustrate these tools and issues through exposure to situations involving moral dilemmas • Inculcate the habit of identifying, evaluating and caring about ethical issues so that this becomes a more or less spontaneous response in practice

8. Advantages of Teaching Ethics Experentially • Learning experiences which are realistic, and involve future social roles, are more profound than abstract learning • Cf adult learning theory (andradagy): unlike children, adults: • see themselves as self-directing • have a good deal of experience to draw upon as a learning resource • Gear their educational development towards future social roles rather than just learning from learning’s sake or to develop basic cognitive skills • Adults seek to apply knowledge immediately, • The ‘disorienting moments’/moral crises’ which occur when prior assumptions and settled values jar with experiences stimulate an ‘engaged moral faculty’ and is more memorable

9. Ethical and Educational Theory • But • Character development/modification takes time • Experience alone is not sufficient • (‘[l]earning occurs not in the doing but in the reflection and conceptualisation that takes place during and after the event’: Brayne, Duncan & Grimes (eds), Clinical Legal Education: Active Learning in Your Law School, 1998, 47. • Personal reflection can be significantly enhanced by • a theory to make sense of experience • guided reflection on experience • Four aims of ethical education: • Inspire • Illuminate • Illustrate • Inculcate

10. Ethical and Educational Theory Kolb’s learning cycle

11. Ethics Teaching at Strathclyde • Only for (200) clinic students at UG level, compulsory for all on Diploma • Optional Ethics and Justice (Clinical Legal Practice/CLP) • Legal ethics and issues of justice illuminated and illustrated through • Seminars on • Introduction to ethical theory • professionalism and sociological context; • client autonomy; • conflicts and confidentiality; • immoral means and ends; • ethical education and regulation). • the profession’s response to access to justice • Reflection on cases in surgeries, diary dialogue and essays • Induction Training • Clinical LLB – degree topped and tailed by ethics teaching, allowing for repeated revolutions of Kolb’s learning cycle

12. Reflective Diaries • 500 words, with 200 words in response to comments • Submitted 2x per semster for responses • Written weekly by Ethics and Justice students on relevant issues raised by cases, class (or other classes) and other clinic activity • Written fortnightly throughout second and third year of degree by Clinical LLB students on any issue relating to their classes, cases, other clinical work and indeed that impacts on their university or clinic experiences • Need detailed instruction on “art” of reflection

13. The Art of Reflection • What? •  Want a clear, focused and engaging description of experience or at most two experiences. • Choose an experience/experiences which most engage you and/or are lend themselves to deep reflection and theory development: something that was, for example, shocking, pleasing, embarrassing, disappointing, unexpected, etc and/or which made your change your views, values, ways of doing things, etc - ie which lead to self-appraisal, some form of change and/or personal growth (in emotions, understanding, values, experience, etc). • Rather discuss one or two issues in great detail than skate over a few in superficial detail.

14. The Art of Reflection • So what? • Deep reflection on what experience meant in terms of ideas, emotions, skills and capacities, and/or values. • Ask yourself what did the experience mean to me, what did I learn, how did I feel before, during and after the experience, what went well or less well than I expected or could be expected – ie how has the experience changed you? • Reflection on how ideas, attitudes or values have changed: what did you think/feel before and how do you think feel now; how does it compare with what you already know from previous experiences, others have told and what you learnt through study, how did such learning help you understand (or not understand) your experience • Can reflect on implications for further study, clinic experience, future career, etc ie what does experience tell you about legal education, legal practice, justice, ethics, society, other people, etc

15. The Art of Reflection • Now what?   • What does your reflection means for the future: • what will you do, think or feel differently? • how can you about making further improvements or changes: what course can you read, course go on, what person can you speak to – or indeed what do these already consulted sources tell about what you need to do?

16. The Art of Reflection • General • Ensure that well-written, well punctuated, grammatical, clearly structured, checked for typos • Ensure that submitted for comments, that you respond to comments and that invitations to read further or otherwise gain information are taken up • Ensure consistency in quality and quantity of reflection

17. The Art of Reflection • Favourable Features of Diaries • Choice of experiences that lends itself to deep reflection on relevant topics • Honest, open and non-defensive self-appraisal • Curiosity • Awareness of and thinking through perspectives other than one’s own • Signs ofPersonal growth – change in thoughts, feelings and values as well as knowledge • Symbiosis between experience, theory and learning • Use of what taught and what read in reflection • Strong sense of how experiences lead to new outlook on law, society, other people, being a lawyer, and being a human being

18. The Art of Reflection • Unfavourable features • Badly written, eg unclear, ungrammatical, stream of consciousness writing, repetitive and waffly • Bland and descriptive • Over or well-under the word limit • No submission for comments • No response or v thin response to comments

19. Reflective Diaries • Read both diaries and look for • Students who do/do not show moral or other development • Influence of ethics classes (reading, discussion, views of teachers) on thinking and values • Use of learning in relation to cases – past or current, those of own or others • Use of cases to enhance learning • Impact of learning/clinical experience on career choice or career aspirations • Impact of factors likely to affect character development

20. Impact of experential learning • See Nicolson, Learning In Justice: Ethical Education In An Extra-Curricular Law Clinic in Robertson et al (eds) The Ethics Project in Legal Education, (2010) • study of 23 reflective diaries of 21 students who had experienced an average of 4.5 cases before class • Diaries littered with references to general ethics theory and the ideas encountered in the professional legal ethics literature • Students frequently stimulated to reflect on their personal values and ethical orientation, and how they might play out in practice. • Many admitted to not having previously considered their motivating moral values, various issues of legal ethics and professionalism Eg • a seminar made Patrick realise that: ‘my ideals to altruism will be tested when I start practicing [sic] as a lawyer.... I suppose I have been naïve to think that I could uphold my ideals and still become a successful lawyer. The seminar set me thinking seriously about the kind of lawyer I wanted to be and what my values really are.’

21. Impact of experential learning • Many reflected on, and were influenced in their attitudes to, career choice, (eg leading to change heir intention to join commercial law firms or to confirm their pre-existing desire to help those in need when in practice.) • Many altered their initial ethical views about, for example, the acceptability of lawyers putting aside moral issues in practice or about prevailing models of client relations. What was often crucial in changing their minds was the views of their fellow students in class. EG: • ‘In Week 3 [of the CLP class] I was adamant that it was above and beyond the call of duty to show concern or compassion for the my clients however in week 8 I found that my new case partner shared the same view which I used to possess. ... in other words, ‘if the client doesn’t tell us all the information then that’s their fault’. .... When I explained to him that it wouldn’t be fair to judge the client by our personal standards I realised that I no longer agreed with my old perception of clients ... [A]fter working with different clinic members and the Clinical Legal Practice class I can appreciate that there are circumstances beyond the client’s control and I should not judge them by my own standards.’

22. Impact of experential learning • All students report having experienced or currently experiencing ethical dilemmas • Some reported conflict of interests(1) and/or immoral tactics (reporting malpractice as bargaining tool (3); use of deception (2); taking advantage of client’s lack of representation (3)) • All reported dilemmas involving how to treat clients in professionally and empathetically, not unduly raising their hopes or impinging on their autonomy, or having to respond to clients who were unreliable or seen as untrustworthy, manipulative or lacking in gratitude.

23. Impact of experential learning • Resolution influenced by staff, other students, and seminar reading and discussion, and Clinic generally • Faced with the option of using the ‘dirty trick’ in the sex discrimination (autonomy dilemma 1) , Rebecca cites seminar reading to justify using her morality to ‘filter what I find to be immoral instructions’ and engaging client in ‘moral dialogue’ • Five weeks later, after discovering that the defenders had lied, Rebecca methodically applied the contextual approach to ethics and reversed her earlier decision, noting that her partner, who had been taught ethics in the diploma ‘did not view the matter as involving morality’ and commenting that this was ‘a blatant example of the benefits of the CLP/Law Clinic Education’.

24. Experential Methods Compared • Cost • Simulations and especially role-plays far cheaper • But are by no means cost-free in terms of time and money (eg for actors) • Clinics are not as expensive as most think if run on largely extra-curricular lines • Eg USLC has 200 students at a cost of £100k pa because run by students and focus is not on teaching but on serving community • Clinics in addition deliver access to justice (340 clients in last year, over 12000 and £0.5m in money saved/won in ten years • Only clinics likely to inspire or reinforce altruism

25. Evidence of Clinic Effects • Developing a Social Conscience • I didn’t start my law degree to ‘make a difference’, my goal was simply to earn enough money so I can afford some of life’s luxuries and have no financial troubles. However, having seen the positive effect my time and effort has had on clients of the clinic has changed my perspective and now, my ultimate goal is to find a job that provides both financial security and a chance to help communities or less fortunate individuals. (Isla). • Before my experience in the Law Clinic I imagined a career in a large law firm and hadn’t really considered the larger ideal of social justice.... Now I find it impossible not to. (Callum)

26. Evidence of Other Clinic Effects • Learning about justice • ‘it appears...that the legal system is no longer fit for poor or “average” people it appears more geared towards businesses and the rich’. (Isla, whose client been turned down by 8 solicitors) • Influence on Career Choice • Confirm or realise that want to devote career to helping others • Give students tools to cope with moral difficulties of intended career • Realise moral difficulties too great to cope with

27. Experential Methods Compared • Coverage • Simulation and role-plays can control which issues are experienced by students whereas unlikely that all clinic students will encounter all or at least those which are part of syllabus (eg confidentiality) • On the other hand: • Time consuming to embed all issues into role-plays and simulations • Advantage less clear-cut with largely extra-curricular clinics egUSLC students may remain in clinic for up to 5 year and take on up to 60 cases and are exposed to ethical issues through committee membership and mentoring • Ethics students are exposed vicariously to issues experienced by others in class and can be exposed to past cases in class discussion

28. Experential Methods Compared • Coverage • On the other hand: • Big issues (eg immoral ends/means/confidentiality) don’t benefit much from being embedded into ‘live’ experience • Micro issues (eg paternalism, care, consideration, empathy, dealing with mental illness) cannot easily be embedded in simulations • Engaging with actual clients far may like to evoke empathy which is important to the development of moral judgment and commitment. • Lessons learnt are likely to go deeper when students are responsible for decisions have consequences in the ‘real’ world. • Community engagement shown to enhance moral development

29. Other Clinical Effects • Important conditions for character development • Feelings of satisfaction or regret at their actions in representing actual clients and resolving real dilemmas help character development, eg • Isla’s comments regarding career choice uttered in response to the satisfaction of helping clients turned down by 8 solicitors • Mark was affected by his regret at past’s actions Last year, my lack of moral sensitivity to the issue of paternalism caused me concern as I had encountered an ethical dilemma without even realising it at the time. This year I dealt with a similar case and able to recognise the dilemma and to effectively employ my moral judgment whilst it occurred. For me, this is one of the most important advancements in my ethical development that I have gained through the reflection process.

30. Other Clinical Effects • Important conditions for character development • Students involved in a ‘moral apprenticeship’ through learning from staff and indeed other students • Students can be influenced by role models, eg • Work of one teacher who was a legal aid lawyer and founder of an environmental law centre showed Isla that she ‘can work in private practice and still achieve her ultimate aim of helping others’, whereas Seamus declared that by ‘putting something back into the community’ through her pro bono assistance of his client she had acted as ‘a positive role model to students’ and been ‘inspirational to me for my own career’.

31. The Next Steps 1. From Clinic to Practice expand the number of diaries analysed and explore the extent to which attitudes developed or sustained under the influence of clinical experience and/or ethics and justice teaching are retained once in practice 2. Identifying and Resolving Ethical Dilemmas Compare E & J students, clinic students who had not taken E & J and non-clinic in terms of their ability to identify and resolve ethical dilemmas embedded in simulated client interviews 3. Longitudinal Study of the Impact of Clinics and Types of Clinics on Altruism Attempt to identify a clinic effect on altruism by comparing levels of altruism before and after clinic experience while also comparing possible differences between educationally and social justice oriented clinics