Judicial Externships as “Experiential Courses”
This post arises from an exchange on LAWCLINIC. Sally Gertz from Florida State posed the following question:
Question: Does your school count a judicial externship as an “experiential course” under new Standard 303, which requires each student to have 6 credits of experiential courses?
I answered in two emails; this post combines the two in a single post:
My school has treated judicial externships as professional skills courses and will continue to treat them as experiential courses under the new rules.
I read the list of “other professional skills” in Interpretation 302-1 as inclusive and expansive rather than exclusive. The lead-in to the list of named skills says: “other professional skills are determined by the law school and may include skills such as” the list of enumerated skills. To me, this suggests two things:
—the list does not exclude teaching of skills other than those listed so long as
—the law school makes a determination that these skills are legitimate outcomes of the relevant course.
A judicial externship course offers many potential outcomes that fall within the scope of “other professional skills.” In addition to the ones that you noted in the list itself, I would include professionalism by attorneys and judges in a litigation context, the exercise of judgment as a neutral decision-maker, management of a high volume caseload, research and writing in a time-sensitive workplace, and pragmatic problem-solving as a judge.
These are all outcomes available in both trial and appellate chambers and are ones for which most chambers have ample opportunities to give students “opportunities for performance” under Standards 304(c) and 303(a)(3). Of course, being able to articulate these professional skills on your syllabus is just a start: your course will have to meet the other requirements of Standard 303(a)(3) and 304(c), by supporting and focusing student learning for these outcomes in the balance of the externship course.
Finally, an important clarification. The outcomes I described earlier include several that might serve for a non-experiential course: research and writing; professionalism; and problem-solving. These learning outcomes constitute acceptable learning outcomes for a non-experiential course, under 302(a), (b), or (c): a writing seminar, or a traditional professional responsibility class.
More pointedly, consider the following two course proposals:
—an “externship” in which the student stays at home, receives research assignments from an outside practice (perhaps a judge’s clerk) with no context for the assignment, no access to the file, no chance to observe related hearings, and no contact with the judge or the clerk about how the issue assigned relates to the underlying problem.
— an “experiential course” in which students do research and produce memos on behalf of an outside non-profit with whom the teacher has a connection. The students primarily research and write and may engage in in-class discussions of problem-solving, under faculty supervision, but with little to no contact with the outside organization or the realities faced by the non-profit.
Those are not experiential courses, in my view. The definition of an “experiential course” ought not to cover courses in which a student only practices skills identical to those in a writing course or a doctrinal class. In defining an experiential course, Standard 303 refers back to all of Standard 302, including those subsections identified above. But it’s important to make sure that student learning should focus on the exercise of other skills, the “other professional skills” in Standard 302(d), and in a real or carefully simulated practice context.
In a well-structured judicial externship, the student works in the denser, richer context of direct judicial practice: drafting proposed orders; analyzing, suggesting, and discussing possible decisions; observing and reflecting on conduct by judges and lawyers; and engaging in conversations with the judge and the clerks that develop their understanding of decision-making, problem-solving, and ethical representation.
Some of this work matches what we would see in a doctrinal or paper course; but that’s not what distinguishes it as “experiential.” The broader list of skills in Standard 302(d), as developed in Interpretation 302-1, seems more characteristic of experiential learning, especially when exercised in the fuller context of practice.
You can find the language of Standards 303 and 302 here: Chapter 3, Program of Legal Education.