DESANITISING THE TEACHING OF LEGAL PROBLEM SOLVING – AND A GRUDGING NOD TO JUDGE JUDY
Kenneth Yin, Lecturer, School of Business and Law, Edith Cowan University, Barrister (Retired)
The introduction to ‘Threshold Learning Outcome 3 – Thinking Skills’, (‘TLO 3’), familiar to Australian law lecturers, reflects the need to incorporate problem solving skills within our legal-studies curriculum. Consistent with the need to satisfy the requirements of TLO3, law lecturers are used to the idea that assignment questions and tutorials are conventionally presented as written problems based on fictional but plausible factual scenarios.
A real client in providing instructions to their solicitor would not do so in paraphrase; the title of this paper is a hesitant nod to the renowned television judge, since the reference to ‘real people’ is very associated with her show. The pivotal suggestion in this paper is that, with very little tinkering with the curriculum, a legal problem can be presented far more realistically in the form of an oral narration or witness statement rather than a written question.
Part 1 is entitled The conventional method of presenting legal problems. Here, we explore how legal problems are conventionally presented and offer a critique of the conventional methods.
Part 2 is entitled Harnessing the power of the voice. We will commence this part by introducing the pedagogy that underpins the idea of using an audio narration as a tool of legal problem solving. This is followed by some personal reflections of using this method in contract studies, including a road-test of a sample.
The conclusion briefly suggests that the method would be a beneficial development to the legal-studies curriculum.
PART 1 – THE CONVENTIONAL METHOD OF PRESENTING LEGAL PROBLEMS
The Australian law student at the start of the semester will search their timetable and discover that their weekly learning cycle typically requires them to attend a two hour lecture and a one hour tutorial.
During the lecture, their lecturer will explain legal doctrine and might engage the class in discussion concerning its content. The associated tutorial typically takes the form of a problem question. In order to address the question asked, our law student must apply doctrinal knowledge gained from earlier lectures and readings. The following explanation is a convenient summary of the content of the typical tute and where it sits within the conventional weekly learning cycle:
The use of problem solving..as a method of teaching and assessment is common in law schools. This method invites students to apply knowledge already gained (through lectures, readings and tutorials) to hypothetical fact situations [emphasis added].
Tutorial questions are usually based on fictional but plausible real life scenarios. In a useful work on narrative learning, the authors, two law lecturers from QUT, make the compelling argument that written problem scenarios tend to be ‘relatively light on detail’ and ‘disconnected from one another. Rather than working through written problem scenarios, their study was based on a series of music videos in which their students embarked on a series of sequential exercises where they are directed to provide legal advice in respect of situations confronted by the actors. The authors posit as follows:
Compared to working through tutorial problems, the learning is more active ‘by immersing learners in a captivating world populated by intriguing characters’ and has been shown to be an effective way of facilitating student understanding and encouraging deep learning.
In some modules, the principles might themselves be quite sanitised such that the learning experience is unlikely to be enhanced by their medium of delivery. One example is the formal requirement of writing to satisfy s 4 of the Statute of Frauds. Where, say, the application of the Statute of Frauds is the sole issue in the question, it would likely make little difference how the question is presented. One could drily – and quite adequately – pose a written question as to whether a document did satisfy the formal requirement of writing pursuant to the Statute of Frauds without further embellishment.
On the other hand, there will be some modules where the presentation of a tutorial or assignment question in a sanitised and disengaged written form potentially can make an enormous difference to the students’ level of engagement. A paradigm illustration of this is undue influence. In Anderson v McPherson (No 2) Edelman J summarised some of the fundamental ingredients of the doctrine, namely that it is characterised by a relationship going ‘beyond mere confidence and influence’ and that, in order to be invoked, the relationship in question must involve ‘dominion and dependency by one person over the will of the other and correlative dependence by the other’.
It would be at best a somewhat inauthentic task to capture the nuance demanded of undue influence in a written tutorial or assignment question, as the doctrine by its nature necessitates the actors’ showing a range of factors, including their emotions, in various shades of colour. This is the type of module where the achievement of the learning outcomes could well be enhanced by the candidate’s becoming ‘immersed’ in the world of ‘intriguing characters’.
PART 2 – HARNESSING THE POWER OF THE VOICE
Much recent attention has been devoted to reform of the legal-studies curriculum to make graduates more employment ready. These initiatives include, notably, clinical legal education and practical training workshops. Law lecturers and others in the broader legal community will be familiar with these initiatives.
The Backstrom-Cooper study above itself was one such initiative. Its outcomes as outlined by the authors are impressive and commendable. Although the authors argued that, having developed their original model, they are now in a position to develop further activities, they did concede nonetheless that:
The initial development of the music videos and online quizzes required a significant investment of staff time and in the case of the videos, substantial financial resources.
On the other hand, the simple expedient of using oral scenarios as the vehicle of delivery for problem assignments seems to have been largely disregarded, or at least there is limited evidence of its use. The very significant benefits of the method are more easily understood if explained through illustration, and readers are now invited to pause to listen to the recording of a ‘statement’ provided by a potential claimant in a case of undue influence, ‘Jill Smith’ :
The associated question itself is relatively conventional ie What are Jill Smith’s rights based on undue influence as against the Bank?
A listener (law lecturer or practitioner) familiar with the doctrine of undue influence will likely recognize that addressing the problems which are evident in the scenario demands: first, a close understanding of the degree of ascendancy required for the doctrine to be invoked given Jill’s apparent maturity and intelligence; secondly an appreciation of the principle in Bank of New South Wales v Rogers, a well-known case which explained why a creditor might be tainted by undue influence of the dominant party if it had constructive notice of it; thirdly, a good understanding of the principles in Garcia v National Australia Bank in which the High Court set aside a guarantee in favour of a bank by a wife on the grounds that it was unconscientious even though the wife was an experienced businesswoman; and finally the fault line between operation of the respective principles in Garcia and in Rogers – which would in turn require them to consider carefully the nature of the relationship between Jill and her friend/partner which although not one of marriage was arguably a long term and publicly declared relationship such as to attract the application of the Garcia principles.
The medium, by immersing the listener in the world of the complainant, then enables students to explore vicariously (ie through the eyes of the actors) the entirety of the various aspects relevant to undue influence. By a different route to the Backstrom and Cooper study, the medium therefore enables the reader likewise to:
..(establish) connections between the story and the concepts that learners are seeking to understand, ensuring that the learning experience is more accessible.
The method can be engrafted within our present legal curriculum at little cost and minimal additional effort. For a law lecturer who otherwise might have already been minded to present the substance of the same question but in the form of a written problem, the mental process of actually creating an equivalent oral witness statement essentially requires them to do nothing more than reverse engineer the thought processes that went into the creation of the original question in the first place. The factual setting can still be used, simply described in the actors’ own words. The task of recording the narration can be achieved by nothing more sophisticated than commonplace, commercially available dictation software. Thereafter, the material can readily be uploaded or provided as a link to a site like Blackboard, or else disseminated via a dedicated URL as has been done here.
Our own experience is that the use of this medium greatly increases the students’ engagement two different ways: first, by their becoming immersed in the world of the actors; secondly with each other – students are able to access the recording via a podcast, or through an URL on their browsers, or download the recording, and can conveniently access it at any time, enabling them to participate and engage with the problem as they gather informally and discuss their work.
Based at least on personal experience, it is suggested that the method of presenting a problem question via an oral narration facilitates a far deeper level of immersion and engagement than is capable with a written tutorial or assignment question. One might argue that the method can be yet further refined by, say, the presentation of the witness statement via the audio-visual medium or by the addition of a further layer of realism, with the student’s playing the part of a solicitor and extracting a statement from their ‘client’. These suggestions are legitimate but will likely result in some cost and inconvenience, whereas the present method, for all its basic simplicity, can be cheaply and conveniently incorporated into the present curriculum.
We suggest that the presentation of an assignment or tutorial problem orally would thus be a beneficial development to our tertiary legal-studies curriculum. Our arguments here are not – yet – supported by empirical or quantitative data but we suggest nonetheless that these inferences can nevertheless be fairly drawn because the medium, if nothing else, replicates the reality of problem solving to a far greater extent than can be achieved by a written question. It therefore aligns readily with the outcomes demanded by TLO3.
 Sally Kift, Mark Israel and Rachael Field, Learning and Teaching Academic Standards Project: Bachelor of Laws Learning and Teaching Academic Standards Statement (December 2010):
<http://www.cald.asn.au/assets/lists/Resources/KiftetalLTASStandardsStatement2010%20TLOs%20LLB.pdf The introduction reads further as follows: This Good Practice Guide was commissioned by the Law Associate Deans Network to support the implementation of Threshold Learning Outcome 3: Thinking skills. The Threshold Learning Outcomes (TLOs) for the Bachelor of Laws were developed in 2010 as part of the Learning and Teaching Academic Standards (LTAS) Project, led by Professors Sally Kift and Mark Israel. TLO 3: Thinking skills is one of the six TLOs developed for the Bachelor of Laws.
The relevant parts of TLO3 read: Graduates of the Bachelor of Laws will be able to: identify and articulate legal issues.. apply legal reasoning and research to generate appropriate responses to legal issues..engage in critical analysis and make a reasoned choice amongst alternatives.
 More precisely: Real cases, real people… Source: https://en.wikipedia.org/wiki/Judge_Judy. Only the quote itself has been borrowed – her show was actually described by one correspondent thus: The sad reality of so-called reality television is that it tends to be, well, not real (!) Source: http://www.mamamia.com.au/are-the-cases-on-judge-judy-real/
J Mackinnon, Problem Based Learning and New Zealand Legal Education  3 Web Journal of Current Legal Issues < http://www.bailii.org/uk/other/journals/WebJCLI/2006/dload3.html>.
 M. Backstrom & D. Cooper, Hiring a Nashville Sensation: Using Narrative Learning to Develop the Problem Solving Skills of Contract Law Student’ (2014) 7 Journal of Australasian Law Teachers Association 1.
Above, n 5. There, the authors cite: Bradford W. Mott et al, Towards Narrative-Centered Learning Environments (Proceedings of the AAAI Fall Symposium on Narrative Intelligence, North Falmouth, Massachusetts (November 5-7, 1999) 78, <http://homes.cs.washington.edu/~lsz/papers/mczll-Narrative-99.pdf> (the citation is reproduced substantially from the article).
 Statute of Frauds 1677 (UK) as adopted by the Law Reform (Statute of Frauds) Act 1962 (WA) s 2,
  WASC 19, [
 Anderson v McPherson, above, at  – .
Backstrom & Cooper, above, at pp 7 – 8.
 Eg a summary of the responses they collected indicated that the majority of students who participated in the survey reported that the activities developed…have assisted them to learn the generic problem solving method, identify the legal issues in scenarios, and apply the appropriate law…Backstrom & Cooper, above at p 10.
Backstrom and Cooper, above, at p 10.
 Narrated by my good friend and colleague at ECU, Dr. Janey Tudor-Owen.
 (1941) 65 CLR 42.
 (1998) 194 CLR 395.
 Garcia, above, at p 404.
 Backstrom and Cooper, above, at p 14.
Backstrom & Cooper, above, at p 7.
 ‘Blackboard’ is a student learning management system which lecturers will be familiar with.