“Time is a very poor proxy for learning.” That statement at our Futures Conference a couple months back by Darth Vaughn, a California lawyer and principal of technology assessment and learning company Procertas, really resonated with me. Darth was advocating for lawyers learning technology from a competency-based approach, particularly through competency-based CLE.
Competency-Based Learning Measures Learning; Not “Time in a Seat”
What is competency-based learning? The idea behind competency-based learning is to measure learning not time. Output not inputs. It can be applied to any learner from elementary school through continuing professional education.
The focus is on what the student learns rather than on what the teacher “covers.” The teacher doesn’t decide what is taught in any given session; the student directs the learning by what s/he knows as a starting point and when mastery of concepts is demonstrated as a progression point. You may have experienced this approach, for example, with the online education programs sponsored by many companies seeking to help your child excel in standardized testing.
The fundamental premise of competency-based education is that there is a definition of what students should know and be able to do, and they graduate or move to the next level when they have demonstrated their competency. This means that we have to define the competencies very clearly.
In contrast, the hours or seat–based system has been around since the late 1800s. In 1893, Charles Eliot, president of Harvard, introduced the concept of the credit hour. Roughly equivalent to one hour of lecture time a week for a 12- to 14-week semester, the National Education Association adopted it as the basic unit of a college education. To be accredited, universities have had to base curriculums on credit hours and years of study. And the credit hour is the standard measure for transferring work between institutions. The seat-time system — one based on the hours spent in the classroom — is further reinforced by Title IV student aid: to receive need-based Pell grants or federal loans, students have had to carry a certain load of credits each semester.
So from long before we went to law school, graduated, and started taking CLE, lawyers have been measuring our education in units of time. Although in law school, college and before, “seat time” was not the end of it. We usually had to take and pass a test to demonstrate that we actually learned the material as well.
What are the Benefits of Competency-Based CLE?
Having reviewed and approved courses that qualify for professional responsibility CLE credit in Illinois for over a decade, I can see benefits to competency-based CLE.
First, practitioners can direct their own continuing education. Lawyers can self-assess their knowledge, start learning at that point, then progress at their own pace. This approach would be especially valuable in learning technology tools to more efficiently serve our clients.
As we have written about before on this blog, the American Bar Association and the majority of states, including Illinois, now define lawyer competence by including the comment that lawyers are required to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” In order to understand the benefits and risks of technology, it makes sense to know how it works, the ramifications, the applications. Demonstrate what you know, then progress through stages to learn more complex matter. For example, advanced applications of Word can ensure that changes are made throughout a contract more effectively and efficiently than combing through by hand.
Second, this approach would save lawyers time and money in taking courses that don’t suit their needs. One criticism we have heard of CLE is it does not differentiate enough between learning levels. A lawyer who has been practicing two years may benefit from vastly different content than the lawyer who has been practicing twenty years. Even if a provider describes a course as easy, intermediate or advanced, such description may not allow the same level of targeted education that is needed. A competency-based CLE approach would obviate the situation where you sign up for a course, only to learn after showing up or signing on that the content is too easy or over your head complex.
Third, and perhaps the most challenging, this approach requires a definition of competencies. It requires someone to define basic, intermediate, advanced levels of understanding and/or application—and perhaps stages or benchmarks in between. This is a whole new approach to continuing legal education. It may be relatively easy with respect to gaining progressive technology skills. But what exactly does it mean to gain competencies in substantive areas of the law, or professionalism, or diversity and inclusion CLE?
Will Competency-Based CLE Catch On?
It may. Law schools are doing it. The medical profession is doing it. And jurisdictions outside the United States are doing it.
Law schools are accredited by the American Bar Association. In late 2014, the American Bar Association changed the accreditation standards for law schools, requiring that they develop and assess learning outcomes that include “competency” in knowledge of the law, legal analysis, legal research, problem-solving, effective communication, and the exercise of proper professional and ethical responsibilities. Law schools are now in the process of establishing learning outcomes and a curriculum that helps each student develop the core competencies and other professional skills needed for competent and ethical participation as a member of the public. This is a far cry from my law school days where it seemed that professors alone decided what would be taught, referring to yellowed loose leaf paper to lecture on doctrinal subjects.
The medical profession changed its accreditation standards to require learning outcomes over fifteen years ago. The law profession can learn a lot from the medical profession, as Neil Hamilton from the University of St. Thomas School of Law wrote in the Georgetown Journal of Legal Ethics. According to Prof. Hamilton, medical education has been progressing away from a “structure and process-based curriculum toward a competency-based curriculum and assessment of student competencies.” It also has emphasized not only technical competencies, but all the competencies needed for effective practice including the professional formation competencies.
In the United Kingdom, solicitors are regulated by the Solicitors’ Regulatory Authority. Late last year they put in place a “continuous competency scheme.” The continuing competence scheme replaced an inputs-based system of continuing professional development – where a certain number of completed hours ensured compliance – with an outputs-based system where it’s the process and effect of learning activities that are emphasized. In a nutshell, solicitors are required to: 1) Reflect on their practice to identify learning needs; 2) Plan how to address their learning needs, identifying suitable learning activities and how to carry them out; 3) Complete the learning activities; 4) Evaluate how the learning activity has met the learning need identified and how to incorporate the new knowledge and skills into their practice; 5) Record how they have carried out this process; and 6) Make an annual declaration to confirm that they have completed the process.
Equipping Lawyers for the Future
The world is changing rapidly. The law is becoming more complex. In this landscape, effective CLE cannot be a check-the-box or sit-in-the-seat kind of thing. Competency-based CLE is an approach that could equip lawyers to be more effective.