Part 1: The Theory Behind Experiential Learning

How is “learning from experience” unique?

Despite significant increases in clinical and experiential learning opportunities, law school still relies heavily on passive methods of learning (e.g. lecturing). That approach can be useful for communicating a lot of complicated information; however, students often report challenges when asked to apply their knowledge to a real-life situation, especially with a client.Footnote1

A useful way of thinking about learning from experience is through David Kolb’s Experiential Learning Cycle, depicted below.Footnote2 This model emphasizes the importance of reflecting on experiences, observing and analysing what happens, and then using insights gained to try the activity again (experimenting) and to effectively learn from both successes and mistakes. Kolb explains that “learning is the process whereby knowledge is created through the transformation of experience”.Footnote3

David Kolb's Experiential Learning Cycle

What is “reflective practice”? How can it help in becoming more effective legal professionals?

Reflective practice contributes in important ways to your professional development. It enhances essential lawyering skills, builds professional knowledge, sharpens your capacity for critical reflection on how law operates, and encourages lifelong learning. Reflective practice helps you learn not just from a professor or law books, but from observing and experimenting with professional practice as well as the community, clients, colleagues, peers, and yourself. Many students talk about clinical and experiential learning as the most meaningful and impactful learning they had law school. Theoretical understanding and technical legal knowledge is deepened when applied to legal practice and practical problems.

Benefitting from Indigenous ways of knowing and learning

The First Nations Holistic Lifelong Learning Model, below, provides a good illustration of the holistic nature of lifelong learning. It sets out the many sources and domains of knowledge and demonstrates the important connections between learning and societal, economic and environmental influences. It emphasizes the significance of ethical and community-centred learning.Footnote4 This model is included because it specifically raises awareness of the multi-faceted aspects of knowledge and provides a useful framework to understand that lifelong learning can be grounded in experience.

Becoming sensitive to access to justice issues in a WIL experience

Your WIL experience may expose you to many examples of access to justice problems. In the past, access to justice was commonly thought of in terms of access to lawyers and courts, and later to other methods of resolving disputes; however, it has evolved to incorporate the content of the law itself, and more recently, has refocused on people and their legal needs. Access to justice no longer means just access to lawyers, courts and legal systems, but now also means providing the means for people to become legally literate and empowered. It encourages early intervention and prevention approaches, for influencing change to unjust or inadequate laws, or to improve how the legal system operates or how legal rights can be enforced. While significant good can come from working with people who might not otherwise have access to justice, it is important to think critically about your role as a law student and the law more generally in increasing access to justice. Below are some important concepts to frame your thinking about access to justice.

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Our vision is an inclusive justice system that is equally accessible to all, regardless of means, capacity or social situation.
Canadian Bar Association’s Equal Justice Initiative

Cultural competency

Access to justice issues disproportionately affect particular populations, including people living in rural areas, newcomers to Canada, people with disabilities, Indigenous people, racialized communities, older adults, single parents, and other people living in poverty. Your WIL experience may expose you to these realities. Developing cultural competency (and an awareness of your own cultural incompetence) is important for your WIL and an ethical professional practice. Becoming aware of power dynamics and implicit biases you carry are important steps in developing cultural competency.Footnote5

Power dynamics and professional knowledge

Considering power dynamics is important in the practice of law, particularly when working for marginalized or vulnerable clients. You may not feel or believe that you have power, but a vulnerable client who needs your help may see you as having a lot of it. What you say can hold huge import for clients who often do not have access to the same knowledge and privileges as many law students. On the other hand, some clients will be more knowledgeable about how law operates on the ground. Clients living in poverty often interact more than others with police, courts, and other law-enforcement agencies and with government agencies. The lived experience of your clients is a valuable form of expertise.

Bernard Mayer, Professor of Conflict Resolution at Creighton University, articulates the following
sources of power, which are relevant to consider in the context of a WIL experience:

  • Formal authority – your title, your position
  • Information – what you know
  • Association – whom you know
  • Resources – time, money, etc.
  • Nuisance – ability to cause a fuss
  • Procedural – actions based on the rules
  • Habitual – “this is the way it’s always done”
  • Moral – claiming the moral high ground
  • Perception – you are seen to have power
  • Definitional – you are able to define the problem a certain wayFootnote6

These and other forms of powers are always operating. Being aware of power dynamics is an
important part of the client-lawyer relationship.

Bias and legal professionalism

Access to justice issues can arise from people’s own internal attitudes, biases, perceptions and experiences. For example, you might come to a WIL experience with your own lived experiences of poverty, disability, migration, exclusion or marginalization. These experiences can help you better understand your clients’ experiences, but can also act as a barrier if you or your clients “overidentify” or make assumptions based on shared backgrounds.

To practice ethically, lawyers and students must do their best to self-assess to identify their biases (i.e. sexism, racism, homophobia, transphobia, ableism, ageism, classism, urbanism), and then ask whether those biases could lead to inadequate legal representation. Some biases are more identifiable and can be neutralized through sensitivity and awareness training; others are not.

Unconscious bias, in particular, is often difficult to identify and acknowledge. That is why it is important to develop the skills to uncover implicit bias.

Building a professional identity and considering different models of lawyering

New legal experiences will help you to begin to develop your own professional identity. Many disciplines including law have a rich “theory of practice” – habits, beliefs, structures, rites of passage, self-image and self-understandingFootnote7 – that make up a shared view of what it means to be a professional. As you incorporate these (or don’t!) into your own practice, you begin to develop a professional identity and your own theory of professional practice.

There are many types of legal practice for legal professionals to consider – and there are many different models of how to practice effectively as a legal professional. You may have been influenced by the idea of the “zealous advocate” who wins at all costs and makes dramatic courtroom appearances. While zealous advocacy has its place, this Guide encourages you to think more broadly about what it means to be a lawyer and develop your own professional identity. Over the past several decades, many alternative approaches to lawyering have emerged, and new approaches are constantly evolving.Footnote8 These types include:

Being aware of professional identity and how “theories of practice” contribute is important to developing an ethical practice, to supporting wellness in the legal profession and for fostering a more expansive understanding of the role of lawyers, including your role in improving access to justice.

With this brief overview of the theory behind experiential learning and reflective practice in an access to justice context, it’s time to move on to Part 2, the Workbook. Explore the resources cited throughout the Guide, and continue to reflect on these theories as you move through the reflective practice exercises in the Workbook.