Legal education: We need to move from imitation to innovation

Tuesday March 6 2018

By LUIS FRANCESCHI
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Chiku told me a sad story. She had just joined the Kenya School of Law, which we usually refer to simply as KSL.

She was late and sat at the back of the class. She could hardly hear the teacher. The class was going on. The room was full, dirty and smelly.

She soon realised it was not KSL’s maintenance fault or neglect. Two young lawyers were sitting behind her. They were dirty, unkept, disordered and noisy.

Some students were also having animated conversations in Sheng while chewing peanuts, rubbing off the skins on the classroom floor. After all, in their poisoned minds, they were there to pass a law exam, not to sweep the floors that must be the duty of some lower beings.

They were not talking about law, but about their escapades, drinking, partying and women. They were also criticising their teachers and their alma mater.

CULTURE SHOCK

It was a culture shock for Chiku. She could not believe it. How had they passed their LLB degree? Who taught them? What did they learn in school? These were the type of people who would go on rampage after failing the bar exam, Chiku thought.

Chiku learnt her lesson. She never arrived late to class again and she never sat at the back of the room. From then on, she paid attention and tried to work hard. She was labelled a bookworm and a weird nerd by some classmates, but she passed all the subjects on her first attempt.

Chiku is now a happy, young and upcoming lawyer, ready to be admitted to practice. She is working at a prestigious law firm and she is happy with her career path and prospects.

The two men sitting behind her failed eight out of nine subjects. Probably, they are still partying, drinking and smelling. Perhaps they are ranting against KSL or blaming the Council of Legal Education and cursing their teachers for their failure, “The world is unfair, the Council is useless, we were failed,” they may argue.

The fact that many good and innocent students fail the bar exam is worrying. This matter must urgently be scrutinised. We need to find the right formula to separate the wheat from the chaff.

STUDENT SELECTION CRITERIA

We also need to investigate why so many students behave like chaff unable to shoulder their responsibilities, to commit themselves to excellence…to hard work. They want to jump on the wagon of the masses, hoping to get somewhere simply because the train was moving. They behave like parasites who hope to learn by osmosis or sucking without effort.

Perhaps we, legal educators, have got stuck on how to address the dilemma of the party-animals, peanuts-chewing and Sheng-speaking dudes. How can we help them pass? Why are they failing? What can we do for them? Instead, we should have been thinking deeply of the root causes that make good students fail.

Perhaps the greater responsibility is at the university level. If student selection is not properly done, students will fail the bar exam; it is hard to get mangoes from avocado trees.

By selection, I do not mean an elitist and exclusivist process. I mean the educational duty of finding the best place for each human being to excel. The place where one can flourish and triumph.

PETTY ESSENTIALS

We cannot get stuck in the wrong place, in petty essentials. Elon Musk has put his Tesla Roadster in space, artificial intelligence program ‘Case Cruncher Alpha’ has defeated prestigious London-based lawyers in case solution, cars are driving themselves, cryptocurrencies are throwing regulators off balance, the cloud is becoming the future court registries, blockchain technology is changing the world and testing the future and necessity of banks.

All this is happening around us and we are stuck in a pass-fail bar exam? It is time to rethink our legal education system, to reset Africa.

Law schools must improve their student-selection criteria and teach the law with commitment, avoiding the common lie of having full-time teachers who are also full-time practitioners or full-time grasshoppers who claim to teach hundreds of young and thirsty minds on every campus in Kenya.

At the same time, KSL may need to implement stricter measures to follow up and measure the commitment of both lecturers and students. Help and coach each student to get the best out of each one.

REDEFINING LEGAL EDUCATION

Two days ago, I travelled to Cape Town with my colleague Allan Munyao Mukuki. I was also joined by Wilfred Konosi, the dean of Kisii University Law School, and 40 other law deans from across Africa.

Prof David B. Wilkins of Harvard advocated for a redefinition of legal education. “The world is changing; law practice is changing. For example, Tata Group of Companies have more than 450 in-house lawyers. I am certain, the first half of the 21st century will belong to Africa, in the same way that the second half of the 20th century belonged to Asia,” Wilkins said.

Frank Wang, president of the International Association of Law Schools, added that regulation has traditionally aimed at suppressing competition, but the world is changing.

“Like it happens in medicine, where patients consult WebMD, most legal clients have also got now a deeper knowledge of the law, they access law mobile applications, they are aware of the technicalities of their legal dilemmas and they will challenge the lawyer’s advice and knowledge,” Wang said.

KNOWLEDGE JOBS VS WISDOM JOBS

Law will remain as the stability element that allows the rule of law to be predictable and fair, but law practice and law firms will necessarily evolve. World mobility is unstoppable.

BBC technology correspondent Rory Cellan-Jones narrates a fascinating contest that took place last February. “It pitched over 100 lawyers from many of London's ritziest firms against an artificial intelligence program called Case Cruncher Alpha. Both the humans and the AI were given the basic facts of hundreds of PPI (payment protection insurance) mis-selling cases and asked to predict whether the Financial Ombudsman would allow a claim.”

Rory says that out of 775 predictions, the computer won hands down, with Case Cruncher getting an accuracy rate of 86.6 per cent, compared with 66.3 per cent for the lawyers.

One of the judges, Ian Dodd, thinks that “AI may replace some of the grunt work done by junior lawyers and paralegals but no machine can talk to a client or argue in front of a High Court judge.” Dodd concludes, “The knowledge jobs will go; the wisdom jobs will stay.”

FROM IMITATION TO INNOVATION

Is wisdom the goal of our legal education? Or are we forming our young lawyers as easily replaceable and imperfect machines?

The challenges to legal education in Kenya are bigger than just the KSL pass rate. While these must be resolved, we should also be thinking ahead…seize the moment and spearhead legal innovation, new systems, new ideas, new policies that will make artificial intelligence, new financial services and the Internet of Things flourish in Africa, and export it to the world.

The way ahead is exciting, intriguing, fascinating; this is time for innovation, the time for Africa. As Frank Wang puts it, “we must move from imitation to innovation.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi