untitled

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REFLECTIVE PRACTICE IN LEGAL

EDUCATION: THE STAGES

OF REFLECTION

IMOTHY

ASEY

Reflection is a part of legal education. ABA accreditation stan-

dards require that externship programs must provide “opportunities

for student reflection,”

and most clinical programs include reflection

as an explicit learning outcome.

Although many teachers and stu-

dents have seen the value of reflection, few have studied the process

of reflection.

Fewer still have developed a model for developing re-

flective capacity. There is virtually no literature describing the way to

teach reflection. This article defines “reflective practice” and presents

an organizational model for teaching reflective practice in six stages.

Research from psychology, in the fields of cognitive development,

moral reasoning, and reflective judgment, supports the Stages of Re-

flection model described in this article. The model provides teachers

and students with a deeper understanding of the process of reflection,

and creates a pathway for the development of the professional value

of reflective practice.

NTRODUCTION

................................................. 318

ART

I: D

EFINING

EFLECTIVE

RACTICE

..................... 322

ART

II: M

ODELS OF

EARNING AND

ORAL

EVELOPMENT

. 323

A. Cognitive and Moral Development .................. 323

1. Early Models ................................... 324

* Professor in Residence and Director of the STEPPS (Skills Training for Ethical and

Preventive Practice and career Satisfaction) Program, California Western School of Law,

San Diego, CA. Professors Margaret Martin Barry, Nicky Booth-Perry, Eduardo

Capulong, Liz Cooper, Stephen Ellmann, Luz Herrera, Robert Holmes, Linda Morton,

Bob Seibel and James Stark provided thoughtful comments and suggestions on early drafts

of this article. I thank Randy Hertz and New York University for supporting the Clinical

Writer’s Workshop, and California Western School of Law for research support. The good,

if any, belongs to them, the bad and the ugly are mine.

A.B.A. S

TANDARDS AND

ULES OF

ROCEDURE FOR

PPROVAL OF

CHOOLS

Standard 305(e)(7) (2013-14); Anahid Gharakhanian, ABA Standard 305’s “Guided Reflec-

tions”: A Perfect Fit for Guided Fieldwork, 14 C

LIN

. L. R

. 61 (2007).

See e.g., Robert F. Seibel & Linda H. Morton, Field Placement Programs: Practices,

Problems, and Possibilities, 2 C

LIN

. L. R

. 413, 435 (1996); J.P. Ogilvy, The Use of Jour-

nals in Legal Education: A Tool for Reflection, 3 C

LIN

. L. R

. 55 (1996); Laurie Morin &

Louise Howells, The Reflective Judgment Project, 9 C

LIN

. L. R

. 623 (2003).

Several scholars have described the use of journals in their clinical courses. See, e.g.,

Ogilvy, supra note 2; Seibel & Morton, supra note 2; Morin & Howells, supra, note 2.

Thus, reflection appears as a core value to the clinical teaching method.

317

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318 CLINICAL LAW REVIEW [Vol. 20:317

2. Perry’s Stages of Cognitive Development ........ 324

3. Kohlberg’s Stages of Moral Development ....... 325

4. Neo-Kohlbergian Model ........................ 325

5. Reflective Judgment Model ...................... 326

B. Summary of the Models of Development ............ 327

C. Androgogical Theory: Learning from Experience ... 328

ART

III: T

TAGES OF

EFLECTION

........................ 331

A. Stage One: Competence ............................. 334

B. Stage Two: Difference and Choice .................. 338

C. Stage Three: Internal Context ....................... 339

D. Stage Four: External Context ........................ 341

E. Stage Five: Societal Context ......................... 344

F. Stage Six: Metacognition ............................ 346

G. Summary of the Stages of Reflection ................ 347

ART

IV: T

EACHING

EFLECTIVE

RACTICE

.................. 348

A. Engaging Students with the Stages of Reflection ..... 348

B. The Stages of Reflection in the Clinical Context ..... 348

ONCLUSION

................................................... 350

NTRODUCTION

“Good Judgment comes from experience. Experience comes from

bad judgment.”

Experts in a professional field must have the capacity to exercise

judgment – they do so quickly, seamlessly, and repeatedly.

Experts

draw upon experience to distinguish relevant information from irrele-

vant, and to assess the risks of different courses of action. In most

professional contexts, more than one course of action will successfully

resolve the problem, and the expert will choose a particular course of

action by using professional judgment.

Professional experience informs the expert’s intuition, and shapes

the exercise of judgment. If asked to state the reasons for a decision or

an action, the expert would likely describe a series of factors that led

RVING

T. M

ARSH

& E

DWARD

HRE

, B

EST

PORTS

TORIES

1958, 120 (1958).

ONALD

A. S

, T

EFLECTIVE

RACTITIONER

49-69 (1984).

Professor Donald Sch ¨on noted a critical distinction between the process where an

expert—a professional—calls upon an intuitive, thoughtful action, and the process of

thinking about the “thinking-in-action.” Donald Sch ¨on, Educating the Reflective Legal

Practitioner, 2 C

LIN

. L. R

. 231, 247 (1995). “[R]eflection-in-action is the process by

which a new response is generated in the situation, in response to surprise and under con-

ditions of uncertainty, in a way that involves on-the-spot experimentation and that does

not necessarily take place in words . . . . [R]eflection on reflection-in-action is an attempt

to describe the knowledge that was generated and the conditions under which it was gener-

ated and the on-the-spot experimentation was carried out.” Id.

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Spring 2014] Stages of Reflection 319

to the ultimate decision.

But the expert might also rely on “gut,” or

intuition, in the exercise of professional judgment.

Professional ex-

perience allows the expert to analyze instantaneously the factors that

could affect the professional performance or the outcome.

Deliberate reflection provides the new professional with a pro-

cess to develop professional judgment. New professionals lack experi-

ence – the very thing that allows a professional to exercise

professional judgment. This deliberate process of reflection is neces-

sary because new professionals cannot rely on intuition or “gut” in the

same manner as an expert. While the seasoned professional integrates

seamlessly thought and action, the new professional must de-couple

the action from the thinking about the action; the new professional

must consciously activate a process to guide the rendering of profes-

sional judgment.

This is not meant to imply that experienced profes-

sionals have no need for reflective practice. Rather, they are more

likely to integrate reflection in their practice. Professionals in other

disciplines have described this process of thinking about action as re-

flective practice.

The concept of reflective practice applies to the legal profession.

A conscious and deliberate analysis of a lawyering performance can

provide the new lawyer with insights into what choices were available,

what internal and external factors affected the decision making pro-

cess, and what societal forces affected the context of the representa-

tion. Skilled professors and mentors can guide this conscious and

As Sch ¨on noted, “Doing something and answering a question about what you are

doing are completely separate activities.” Sch ¨on, supra note 6, at 243.

In Thinking Fast and Slow, Daniel Kahneman describes two parallel thinking

processes—the intuitive and the rational. The intuitive process corresponds to the “gut

feeling,” while the rational process relies on logical reasoning. D

ANIEL

AHNEMAN

HINKING

AST AND

LOW

13, 20-24 (2012).

In Blink, Malcolm Gladwell described the process of “thin slicing”—where profes-

sionals in divergent fields use small pieces of available data, together with experience and

intuition, to make judgments in a professional context. M

ALCOLM

LADWELL

LINK

14-

16, 23 (2005).

, supra note 5, at 49-69. For the reflective practitioner, the thought about the

action and the action occur simultaneously, and in perfect integration, so that it is not

possible to separate the action from the thought about the action. Id. The degree to which

professionals integrate reflection into practice may vary from individual to individual.

There is an important distinction between (1) learning from experience, (2) reflecting on

the lessons learned from experience, and (3) engaging in reflective practice. Almost all

professionals learn from experience—they avoid making the exact same mistake twice.

Many professionals reflect on the lessons learned from experience—when they have time

to reflect, they can apply the experience from one situation to the next situation. Profes-

sionals who engage in reflective practice make a conscious decision to integrate reflection

into their practice. For them, the process of engaging in conscious and deliberate reflection

becomes integrated into the practice.

Sch ¨on described the workings of the architectural design studio, and the experience

of jazz music. Sch ¨on, supra note 6, at 244.

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320 CLINICAL LAW REVIEW [Vol. 20:317

deliberate analysis in the process of reflection.

Teaching reflective practice is neither obvious nor easy. The first

issues lie in identifying the value of reflection. This is not obvious. It

is easy to believe that the primary function of legal education is the

transfer of substantive knowledge. But, in practice, substantive

knowledge only provides a part of what is necessary to solve a client’s

problem. Reflection helps to build the skills, values, and modes of crit-

ical thinking required to frame and solve complex problems.

Teaching reflection is not easy. There are two problems typically

associated with introducing a reflective component into a law school

course. The first problem is resistance from students. They see reflec-

tion as too “touchy-feely” because it does not impart substantive

knowledge; in their minds, reflection has little value or relevance to

the mission of legal education.

The second problem derives from

teachers, who have high expectations for their students, and who may

feel disappointed in what they perceive to be a fairly low level of per-

formance with respect to reflection.

Both of these issues can be ad-

dressed with a thoughtful approach to teaching reflective practice.

The model proposed in this article begins with a concrete, de-

scriptive level of reflection and then progresses in stages to more ab-

stract and more contextual levels of reflection. Each stage adds

complexity. The first stage – Competence – asks the student to relate

her performance to the standard of a reasonably competent lawyer.

At the next stage – Difference and Choice – the student considers

different means to achieve the goal of the performance. Middle stages

Joshua E. Perry, Thinking Like A Professional, 58 J. L

EGAL

DUC

. 159 (2008). “For

many enrolled in the required PR class, curricular expectations are focused solely on learn-

ing the black letter rules (i.e., passing the MPRE), discussing the seminal cases, and re-

viewing the activities that will and will not get one sideways with the Board of Professional

Responsibility.” Id. Perry used the term “mushy” to describe the reflective component of

a professional responsibility course. Id.

Ogilvy noted that while the journals in a law clinic provided a “window into the

thinking and lives of . . . students,” the journals did not demonstrate critical thinking.

Ogilvy, supra note 2 at 59. Research from other disciplines suggests that reflection tends to

be superficial unless approached in a systematic manner. Joan Ru ´e, Antoni Font & Gisela

Cebri ´an, Towards High-Quality Reflective Learning Amongst Law Undergraduate Students:

Analysing Students’ Reflective Journals During a Problem-Based Learning Course, 19

UALITY IN

IGHER

DUC

. 191, 195 (2013), available at http://dx.doi.org/10.1080/1353832

2.2013.802575. See also J.E. Dyment & T.S. O’Connell, Assessing the Quality of Reflection

in Student Journals: A Review of the Research, 16 T

EACHING IN

IGHER

DUC

. 81 (2005).

In a meta-study related to student reflection, Dyment and O’Connell found relatively low

levels of reflection in student journals (only two of eleven studies reported high levels of

reflection in student journals). Id. Rue, et al., supra at 195.

Ru ´e et al., supra note 13, at 195 “[S]ome studies suggest that reflective writing in

higher education tends to be superficial unless it is approached in a consistent and system-

atic way.” Id. (citing L. Orland-Barak, Portfolios as Evidence of Reflective Practice: What

Remains “Untold”?, 47 E

DUC

. R

. 25 (2005)).

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Spring 2014] Stages of Reflection 321

– Internal Context and External Context – ask the student to describe

factors that affected her decision-making process, beginning with a

consideration of personal preferences, experiences, biases and charac-

teristics, and moving to consideration of the preferences, experiences,

biases and characteristics of others. The next stage – Societal Context

– asks the student to consider relationships between law and society,

social, political, historical, or economic structures that affect the law-

yering process. In the final stage – Metacognition

– the student

should demonstrate an awareness of the effect of reflection on her

thinking process.

The goals of reflective practice are to provide the professional

with a self-improvement algorithm, and to increase the capacity of the

professional to exercise judgment in the professional context. In a ba-

sic sense, reflective practice forces the professional to increase aware-

ness of the factors that affect judgment. A higher level of awareness

and consciousness of the decision-making process will lead to better

and more ethical practice.

The goal of the Stages of Reflection

model is to build a professional context for the student and to inte-

grate reflective practice as a professional value.

Moreover, the Stages of Reflection model follows the path of the

student’s cognitive and moral development. The research from psy-

chologists and educational theorists informs us that cognitive develop-

ment, moral development, and reflective judgment move along three

axes. First, as students develop, they move from dualistic and abso-

lute notions of reality to more relativistic and contextual understand-

ings of reality. Second, the student develops the capacity to move

from concrete experiences to abstract principles. Third, the student’s

focus shifts from a self-centered and self-interested perspective to a

view that includes the interests of others, and ultimately to one that

has universal application. As one researcher noted, “[r]egardless of

the number of stages, positions, or perspectives, the sequence invaria-

bly suggests movement from a dualistic, objectivist view of knowledge

to a more subjective, relativistic stance and ultimately to a contextual,

constructivist perspective of knowing.”

The Stages of Reflection

tracks this trajectory. The stages move the student from an objective

The term metacognition implies “thinking about thinking.” See Flavell, infra note

131 and accompanying text. In this model I mean thinking about reflection.

At minimum, careful consideration of the interests of self and others ought to de-

crease ethical lapses based on inattention or a lack of thoughtful analysis.

The scope of this article does not include a specific argument for the inclusion of

reflective practice as a way to raise ethical practice. Rather, I assume the audience ac-

knowledges the value of reflection in teaching professional practice.

Barbara Hofer, Personal Epistemology Research: Implications for Learning and

Teaching, 13 J. E

DUC

. P

SYCHOL

. R

. 353, 356 (2001).

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322 CLINICAL LAW REVIEW [Vol. 20:317

perspective to a relativistic perspective, and ultimately, to a contextual

perspective.

Part I of this article defines reflective practice. Part II examines

psychological theories of cognitive development, moral reasoning, re-

flective judgment, and adult learning, and compares these theories to

the Stages of Reflection. Part III, presents a model for teaching reflec-

tive practice in a law school course: the Stages of Reflection. Part III

also demonstrates the congruence of this model with information from

other disciplines about cognitive development, moral reasoning and

reflective judgment. Part IV provides examples of the application of

the Stages of Reflection model.

ART

I: D

EFINING

EFLECTIVE

RACTICE

Reflective practice is the integration of intentional thought and

specific action within a professional context.

Reflective practice in-

cludes consideration of ethical rules and norms in a given field and

offers guidance for the skillful application of professional ethics.

Reflective practice is not the same as occasional review or reflection

about a past professional experience, rather, it is the ingrained habit

of constant reflection.

One scholar has described reflective practice as the process that

produces praxis – informed, committed action.

Another has de-

scribed reflection as “a basic mental process with a purpose, an out-

come, or both, applied in situations in which material is unstructured

or uncertain and where there is no obvious solution.”

In the mid-1980s, Professor Donald Sch ¨on described the virtues

of reflective practice,

and the reflective practitioner emerged as a

new vision of professional master. Reflective practice became a criti-

cal learning outcome in many programs of professional education.

HRIS

RGYRIS

ONALD

A. S

HEORY IN

RACTICE

: I

NCREASING

ROFES-

SIONAL

FFECTIVENESS

12 (1989); see also D

ONALD

A. S

DUCATING THE

EFLEC-

TIVE

RACTITIONER

: T

OWARD A

ESIGN FOR

EACHING AND

EARNING IN THE

ROFESSIONS

(1987); D

ONALD

A. S

, T

EFLECTIVE

RACTITIONER

(1984) [herein-

after S

, R

EFLECTIVE

RACTITIONER

Sch ¨on, R

EFLECTIVE

RACTITIONER

, supra note 19, at 59-69.

Stephen Kemmis, Action Research and the Politics of Reflection, in R

EFLECTION

URNING

XPERIENCE INTO

EARNING

139, 141 (David Boud, Rosemary Keough & David

Walker eds., 1985) (“We are inclined to think of reflection as something quiet and per-

sonal. My argument here is that reflection is action-oriented, social and political. Its

‘product’ is praxis (informed, committed action), the most eloquent and socially significant

form of human action.”).

ENNIFER

A. M

OON

, R

EFLECTION IN

EARNING AND

ROFESSIONAL

EVELOPMENT

HEORY AND

RACTICE

10 (1999).

, R

EFLECTIVE

RACTITIONER

, supra note 19, at 338-54.

For an extensive list of the use of reflective journals in other disciplines, see Ogilvy,

supra note 2, at 59, n.9 (including reference to sociology, geography, literature and lan-

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Spring 2014] Stages of Reflection 323

ART

II: M

ODELS OF

EARNING AND

ORAL

EVELOPMENT

“Essentially, all models are wrong, but some are useful.”

Researchers in the fields of cognitive psychology and educational

theory have focused on understanding the process of acquiring and

processing knowledge.

The phrase “epistemic cognition” describes

the relationship between the knowledge and the person acquiring the

knowledge. Researchers have noted that the way a person perceives

knowledge – or reality – affects the way the person acquires and uses

knowledge.

Cognitive psychologists inform us that a person’s cognitive ability

develops in stages.

Early stages are defined by a submission to an

external source of authority, a perception of problems in terms of

right and wrong answers, and a view of knowledge as a self-contained,

finite resource.

Likewise, moral reasoning and the capacity to exer-

cise judgment progress in stages.

A. Cognitive and Moral Development

Cognitive development refers to the development of thinking

processes. Moral reasoning and reflective judgment are subsets of

cognitive development, referring respectively to the ability to make

moral decisions and the ability to solve unstructured problems. Re-

flective judgment and moral reasoning are particularly important for

professional education because the professional will rely on higher

levels of reasoning when confronting difficult and unstructured

problems.

The following sections summarize the research of experts

in cognitive and moral development. This research suggests that cog-

guage, psychology, physics and education). The American Bar Association included “op-

portunities for student reflection” as a learning outcome for externship programs. A.B.A.

TANDARDS

, supra note 1.

EORGE

E.P. B

& N

ORMAN

R. D

RAPER

, E

MPIRICAL

ODEL

-B

UILDING AND

E-

SPONSE

URFACES

424 (1987).

Barbara Hofer, Personal Epistemology as a Psychological and Educational Con-

struct: an Introduction, in P

ERSONAL

PISTEMOLOGY

: T

SYCHOLOGY OF

ELIEFS

ABOUT

NOWLEDGE AND

NOWING

3 (Barbara Hofer & Paul Pintrich eds., 2004).

Id.

See infra Part II (A)(1-5).

See infra Part II (A)(1)-(A). The different models described below relate to differ-

ent aspects of the learning environment. For example, Perry’s work was concerned with

the development of cognition, Kohlberg’s work focused on moral reasoning, and the work

of King and Kitchener examined the development of reflective judgment. Sch ¨on’s work

centered on professional education—specifically on the development of what he called

reflection in action. Sch ¨on, supra note 6.

See infra, Part II (B).

, supra note 5; S

, T

EFLECTIVE

RACTITIONER

, supra note 19;

Sch ¨on, supra note 6, at 238-39.

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324 CLINICAL LAW REVIEW [Vol. 20:317

nitive ability and moral judgment develop in stages. The progression

from one stage to the next as described by psychologists and educa-

tional theorists parallels the progressions in the Stages of Reflection

model described in Part III below.

1. Early Models

Beginning with John Dewey, Benjamin Bloom and Jean Piaget,

theorists have attempted to explain the development of the human

thought process. Dewey offered a comprehensive model of educa-

tional theory.

Bloom presented a taxonomy of learning objectives.

Piaget focused on the development of cognition in children.

Each

explained the process of cognitive development with a model of

stages, where the subject’s development could be marked by passing

from one stage to the next.

2. Perry’s Stages of Cognitive Development

The work of William Perry extended Piaget’s childhood develop-

ment model through the adolescent, early adult, and mature phases of

life.

Perry focused the attention of educators to the different “ways

of knowing.”

In his research, he observed not only the ways stu-

dents learn, but also the change over time in the relationship between

the student and knowledge.

Perry’s work focused attention on the way learners acquire and

retain information. In Perry’s nine-stage model of development, stu-

dents in the early stages adhere to authority and hold strong beliefs in

certainty.

In middle stages, students develop the capacity to hold

competing ideas and to understand different perspectives. Students in

OHN

EWEY

, H

HINK

(1933); J

OHN

EWEY

, E

XPERIENCE AND

DUCATION

(1938).

ENJAMIN

LOOM

, M. E

NGELHART

, E. F

URST

, W. H

ILL

& D.R. K

RATHWOHL

, T

AX-

ONOMY OF EDUCATIONAL

BJECTIVES

: T

LASSIFICATION OF

DUCATIONAL

OALS

(1956).

EAN

IAGET

, T

HILD AND

EALITY

: P

ROBLEMS OF

ENETIC

SYCHOLOGY

(Ar-

nold Rosin trans., 1973).

EWEY

, supra note 32; B

LOOM

, supra note 33; P

IAGET

, supra note 34.

Perry’s research involved interviews with college students at Harvard. Perry catego-

rized the responses into stages of development. W

ILLIAM

ERRY

, F

ORMS OF

NTELLEC-

TUAL AND

THICAL

EVELOPMENT IN THE

OLLEGE

EARS

: A S

CHEME

(1970); J

EAN

IAGET

, T

HE CHILD AND REALITY

: P

ROBLEMS OF GENETIC PSYCHOLOGY

(1973).

Dawn Schrader, Intellectual Safety, Moral Atmosphere, and Epistemology, 11 J.

DULT

. 87 (2004).

Timothy Casey & Kathryn Fehrman, Making Lawyers Out of Law Students:Shifting

the Locus of Authority, 20 P

ERSPECTIVES

96 (2012) (discussing the application of Perry’s

theory to the teaching of legal ethics).

Perry’s nine-stage model of development is described in Table 1 of the Appendix.

Infra Table 1.

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Spring 2014] Stages of Reflection 325

these middle stages have a relativistic view of the world, where

“truth” is dependent upon the observer’s point of view. At the high-

est stages of development, students acquire the capacity for commit-

ment, or the ability to use universal principles to weigh competing

interests. Perry saw a connection between more abstract thinking and

a higher level of moral development.

3. Kohlberg’s Stages of Moral Development

While Perry focused on cognitive development, Lawrence

Kohlberg studied moral development.

Kohlberg expanded Piaget’s

two-stage model into a six-stage model related to the subject’s capac-

ity for moral reasoning and the exercise of moral judgment.

Kohlberg’s research involved extensive interviews with undergraduate

students about moral dilemmas.

In each dilemma, the researchers

asked the participants to decide on a course of action, and then to

provide reasons or justifications for the action. Kohlberg sorted the

participant responses into categories, which varied by the depth of the

moral reasoning.

For example, a limited level of moral reasoning

would justify a course of action by simply following the law or the

order of an authority figure. A more advanced response would in-

clude a statement of a principle that offered guidance in the decision.

Kohlberg’s model contains three levels and six stages.

4. Neo-Kohlbergian Model

Later researchers have modified or extended Kohlberg’s model.

Notably, James Rest, Darcia Narvaez, Stephen Thoma, and Muriel

Bebeau developed the Neo-Kohlbergian Model.

They conducted

abundant empirical research

and, based on their findings, modified

Like Perry, Lawrence Kohlberg extended the work of Piaget. L

AWRENCE

OHLBERG

, E

SSAYS ON

ORAL

EVELOPMENT

. 2: T

SYCHOLOGY OF

ORAL

EVELOPMENT

THE

ATURE AND

ALIDITY OF

ORAL

TAGES

(1984).

Id. at 621 app. A (“The Six Stages of Moral Development”).

An example is the cancer drug hypothetical where a husband must decide whether to

steal a drug to save the life of his wife.

AWRENCE

OHLBERG

, T

EANING AND

EASUREMENT OF

ORAL

EVELOP-

MENT

(1981); A

NNE

OLBY

& L

AWRENCE

OHLBERG

, T

EASUREMENT OF

ORAL

UDGMENT

, V

. 2: S

TANDARD

SSUE

CORING

ANUAL

(1987).

Kohlberg’s stages are set out in a table at the end of this article. Infra Table 2.

AWRENCE

OHLBERG

, E

SSAYS ON

ORAL

EVELOPMENT

. 2, 621 app. A (1981)

(“The Six Stages of Moral Development”).

The Neo-Kohlbergian model is set out in a table at the end of this article. Infra

Table 4. James R. Rest, Darcia Narvaez, Stephen J. Thoma, & Muriel Bebeau, A Neo-

Kohlbergian Approach to Morality Research, 29 J. M

ORAL

DUC

. 383 (2000).

Rest and his colleagues developed a “pencil and paper” instrument for collecting

data from subjects. The Defining Issues Test (DIT) allows researchers to collect responses

without the time and expense of interviews and response coding. Id.

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326 CLINICAL LAW REVIEW [Vol. 20:317

Kohlberg’s basic structure.

The Neo-Kohlbergian Model uses

“schema” in place of stages. The first schema is known as the “Per-

sonal Interest Schema,” which correlates generally to Kohlberg’s sec-

ond and third stages.

The second schema is the “Maintaining Norms

Schema,” which derives from Kohlberg’s fourth stage.

Finally the

“Postconventional Schema” emerges from Kohlberg’s fifth and sixth

stages.

Significantly, they rejected a strict adherence to a “stair-

case” model: they postulated that a person might function with capac-

ities from different stages for different types of tasks, or might use

qualities from several stages simultaneously.

5. Reflective Judgment Model

Professors Patricia King and Karen Kitchener adapted

Kohlberg’s stages of moral development to the development of judg-

ment.

The King and Kitchener Reflective Judgment model de-

scribed the development of the process of solving unstructured or “ill-

defined problems.”

An unstructured problem has no simple answer.

Resolving an unstructured problem involves the consideration of al-

The Neo-Kohlbergians distinguished their model from Kohlberg’s strict “staged”

model in five significant ways. First, they rejected the assumption that a person functions

in a single stage at a given point in time. Second, the “schemas” on the Neo-Kohlbergian

Model are more concrete than Kohlberg’s stages. Third, their model includes space for the

personal experience of the subject. Fourth, they rejected Kohlberg’s assumption that the

stages could be applied across different cultures; the Neo-Kohlbergians adopted a more

relativistic approach. Fifth, the Neo-Kohlbergians differed with Kohlberg on whether reli-

able information could be gathered from subjects without interviewing the subject. Rest et

al., supra note 45, at 384-86.

Id. at 386-87.

Id. at 386-88.

Id. at 386-89.

Rest et al., supra note 45 at 384-86; J

AMES

EST

, D

EVELOPMENT IN

UDGING

ORAL

SSUES

(1979). Professors King and Kitchener echoed the ideas of Rest and his

colleagues about single stage functioning versus simultaneous, multiple stage functioning.

EFLECTIVE

UDGMENT

ODEL

: U

NDERLYING

SSUMPTIONS

, http://www.umich.edu/

~refjudg/reflectivejudgmentunderlyingassumptions.html (last visited Jan. 28, 2014) (quot-

ing P

ATRICIA

ING

, A

SSESSING

EVELOPMENT FROM A

OGNITIVE

EVELOPMENTAL

ER-

SPECTIVE IN

OLLEGE

TUDENT

EVELOPMENT

: T

HEORY AND

RACTICE FOR THE

19902

(D. Creamer & Assocs. eds., 1990) (“Although an individual frequently may reason using

the assumptions of a given stage, it would be incorrect to assume that she or he can use

only one such set of stage-related assumptions at a time, regardless of the circumstances

under which stage scores were assessed”)). Lamborn and Fischer proposed the idea of

optimal and functional levels of development. S. Lamborn & K. W. Fischer, Optimal and

functional levels in cognitive development: The individuals’ developmental range, N

EWSLET-

TER OF THE

’

Y FOR THE

TUDY OF

EHAV

. D

., N

. 2. (1989).

The Reflective Judgment Model is set out in a table at the end of this article. Infra

Table 3. P

ATRICIA

ING

& K

AREN

ITCHENER

, D

EVELOPING

EFLECTIVE

UDGMENT

NDERSTANDING

& P

ROMOTING

NTELLECTUAL

ROWTH

& C

RITICAL

HINKING IN

DO-

LESCENTS

& A

DULTS

(1994).

Hofer, supra note 18, at 6; K

ING

& K

ITCHENER

, supra note 52.

\\jciprod01\productn\N\NYC\20-2\NYC205.txt unknown Seq: 11 24-MAR-14 10:57

Spring 2014] Stages of Reflection 327

ternative arguments, the investigation of additional information, the

assessment of the source and reliability of information, and the exer-

cise of judgment.

To better understand the process of solving complex, unstruc-

tured problems, the research of King and Kitchener examined two hy-

potheses: “1) individuals’ understanding of the nature, limits, and

certainty of knowing (their epistemic assumptions) affects how they

defend their judgments; and 2) epistemic assumptions change over

time in a developmentally related fashion.”

From this, King and

Kitchener developed a model of reflective judgment that identifies

seven critical stages in the development of reasoning.

King and Kitchener’s Reflective Judgment Model describes the

acquisition of knowledge and experience in a way that is helpful to

lawyers because of the focus on solving complex problems.

Sch ¨on noted, professionals must have the ability to frame a problem,

not merely to solve a problem; they must have the capacity to provide

structure to a “mess.”

Notably, in the legal education context,

Professors Laurie Morins and Louise Howell adapted the Reflective

Judgment model to help clinical students solve difficult problems.

B. Summary of the Models of Development

The following chart synthesizes the various stages for the models

described above. Although different, each model describes a progres-

sion from a basic level of understanding to a more complex level of

understanding and decision-making.

ING

& K

ITCHENER

, supra note 52, at 10; see also T

EFLECTIVE

UDGMENT

ODEL

supra note 51.

ING

& K

ITCHENER

, supra note 52.

ING

& K

ITCHENER

, supra note 52.

ING

& K

ITCHENER

, supra note 52, at 10; see also T

EFLECTIVE

UDGMENT

ODEL

supra note 51.

“The task of constructing a technical problem is not itself a technical problem. One

gets a technical problem from constructing such a problem.” Sch ¨on, supra note 6, at 238.

Sch ¨on’s comments are imbedded in a deep critique of professional education. Id.

Laurie Morins & Louise Howells, The Reflective Judgment Project, 9 C

LIN

. L. R

623 (2003). Morins and Howells identified the problem of “stuckness” and their efforts to

use the Reflective Judgment model as a guide in student reflection. They concluded that

while the Reflective Judgment model was helpful, it was not sufficient as a guide for the

development of students’ problem-solving skills. “Although we believe that [the Reflective

Judgment model] was a successful pedagogical tool for students in our clinic, and we

gained some helpful insights by observing their thought processes, it did not provide as

much guidance as we would have liked in designing interventions for ‘stuck’ students.” Id.

at 659.

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328 CLINICAL LAW REVIEW [Vol. 20:317

Models of Cognitive and Moral Development

Perry’s Stages of Kohlberg’s Stages of Neo – Kohlbergian King & Kitchener:

Cognitive Development Moral Development Schema Reflective Judgment

Dualism (Stage 1-2) Pre-Conventional Schema 1: Personal Pre-reflective

There are right (Stages 1-2) Interest thinking (stage 1-3)

answers. Decisions motivated Decisions based on Rejection of

by avoiding the personal alternate beliefs;

punishment or consequences of the most issues have a

seeking personal action on the actor. right answer; right

reward. answers emerge

from authority.

Quasi Reflective

Thinking

(Stages 4-5)

Multiplicity Conventional Schema 2: Quasi Reflective

(Stages 3-4) (Stages 3-4) Maintaining Norms Thinking (Stage 5)

The answer depends on Decisions motivated Perceived need for Reflective Thinking

one’s perspective. by conformity, clear, uniform rules (Stage 6)

adherence to social that create a social Beliefs can be

norms and obligation to obey. justified through

compliance with reason and

authority. evidence; some

beliefs are context-

specific.

Relativism (Stages 5-6) Reflective Thinking

Different contexts (Stage 6-7)

produce different Solutions may be

answers. constructed through

comparison of

different

perspectives and

contexts.

Commitment Post-Conventional Schema 3: Post Reflective Thinking

(Stages 7-9) (Stages 5-6) –Conventional (Stage 7)

Responsible decisions Decisions motivated Moral obligations Conclusions are the

flow from reference to by adherence to are based on most complete or

principles; the process personal shared ideas, and the most plausible

of relationships, and to are open to given the available

universal ethical discussion, scrutiny evidence.

principles. and change.

C. Andragogical Theory: Learning from Experience

In a groundbreaking article in the early 1980s, Professor Frank

Bloch described a theory of adult learning that could be applied to

clinical legal education.

Using the work of noted psychologist Mal-

colm Knowles, Bloch explained the theory of adult learning in the

context of a law clinic.

According to Knowles, adult learning follows

This table contains only a brief description of each stage of the various models. Each

model is set out in more detail in the tables in the appendix. Infra Tables 1-5.

Frank Bloch, The Andragogical Basis for Clinical Legal Education, 35 V

AND

. L.

. 321 (1982).

Id. According to Knowles, adults acquire knowledge in a way that differs fundamen-

tally from the way children acquire knowledge. Adults need self-directed environments

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Spring 2014] Stages of Reflection 329

a five-step process. In step one, the teacher and student create an

appropriate learning environment – the environment must be defined

by mutual respect, not hierarchical position.

In step two, the adult

learner assesses his level of competence and educational needs. In

step three, the learner defines goals and methods of assessment. In

stage four, the learner engages in the actual learning, and in stage five

the learner evaluates her performance.

Bloch described the perfect fit between Knowles’s theory of adult

learning and fits the teaching environment in a legal clinic.

Numer-

ous clinical scholars joined the chorus, praising the congruity in

Bloch’s application of Knowles’s theory to the clinical teaching

model.

But the idea of a unified theoretical model for teaching proved

too good to be true.

Professors Linda Morton, Janet Weinstein, and

Mark Weinstein described the disconnection between the theory of

adult learning and the reality of teaching law students.

Noting that

Bloch and other clinicians had assumed their students were “adults,”

Morton, Weinstein and Weinstein challenged this underlying assump-

tion; their collective experience provided evidence that law students

were not fully developed adult learners.

In other words, the mere

age of the learner was no guarantee that the student would be an adult

learner. In sum, there was no working definition of “adult” as applied

to learning theory.

where they can learn through cycles of experience and thoughtful reflection. Knowles pro-

posed a new methodology for teaching to the unique requirements of the adult learner.

ALCOLM

NOWLES

, S

ELF

-D

IRECTED

EARNING

: A G

UIDE FOR

EARNERS AND

EACH-

ERS

(1975); M

ALCOLM

S. K

NOWLES

, A

NDRAGOGY IN

CTION

, A

PPLYING

ODERN

RINCI-

PLES OF

DULT

EARNING

(1984).

Professor Schrader described the ideal learning environment in a context adaptive to

what she calls “epistemic fit.” Schrader, supra note 37, at 88-90, 96.

Linda Morton, Janet Weinstein, & Mark Weinstein, Pedagogy: Not Quite Grown Up:

The Difficulty of Applying an Adult Education Model to Legal Externs, 5 C

LIN

. L. R

469, 476-77 (1999).

Bloch, supra note 61.

See, e.g., Fran Quigley, Seizing the Disorienting Moment: Adult Learning Theory and

the Teaching of Social Justice in Law School Clinics, 2 C

LIN

. L. R

. 37 (1995). In an

earlier article, Gary Bellow described the unique methodology of the clinical model. Gary

Bellow, On Teaching the Teachers: Some Preliminary Reflections on Clinical Education as

Methodology, in T

OUNCIL ON

EGAL

DUCATION FOR

ROFESSIONAL

ESPONSIBIL-

ITY

, C

LINICAL

DUCATION FOR THE

TUDENT

: L

EGAL

DUCATION IN A

ERVICE

ETTING

, 374-90 (1973).

I do not mean to undervalue the contribution of Professor Bloch. His ideas remain

critical to the explanation of the value of experiential learning and to the structure of the

legal clinic as an educational enterprise.

Morton et al., supra note 64, at 484.

Id. at 470. Knowles later revised his theory by noting that the success of the an-

dragogic model depended on the learners entering the process at an advanced level of

development. Id. at 477.

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330 CLINICAL LAW REVIEW [Vol. 20:317

The fields of psychology, sociology, human development and educa-

tion have all examined the concept of adulthood, but there is no

uniform definition we might use to categorize our students. Al-

though chronological age has been used as a definition of adult-

hood, qualifying all law students as adults (post adolescence), this is

not of much help when we examine students’ readiness to learn as

adult learners.

Morton, Weinstein and Weinstein looked to cognitive and devel-

opmental psychology for a more comprehensive model of develop-

ment – one that explained their observations in the field.

They

described the work of Patricia Cross, whose model included personal

characteristics, such as physiological age, life phase, psychological de-

velopment stages, and situational characteristics, such as whether the

learning environment was voluntary or involuntary, part-time or full-

time.

Applying Cross’s multi-dimensional definition of “adult” to their

students, Morton, Weinstein and Weinstein found they could calibrate

the learning environment to fit with the level of the student’s develop-

ment.

Students who demonstrated more advanced development

could be allowed into a self-directed, autonomous, experientially

based learning environment, while less-developed students could be

ushered into more structured and directed learning environments.

The accounts from Bloch, Morton, Weinstein and Weinstein in-

form the prerequisites to the development of successful teaching envi-

ronments. Students must have basic training in lawyering skills, so

that the potential barriers, such as lack of confidence or fear of failure,

are lowered or removed.

Students must be exposed to a profes-

sional environment. Further, students should have experience in solv-

ing “unstructured problems” that require the student to confront

indeterminacy and uncertainty.

Finally, students should have some

Id. at 491-92.

Id. at 492.

K. P

ATRICIA

ROSS

, A

DULTS AS

EARNERS

228 (1981); Morton et al., supra note 64,

at 492-94 nn. 94-105 and accompanying text.

This idea is consistent with Professor Schrader’s concept of “epistemic fit.” Schrader,

supra note 37, at 96.

Morton et al., supra note 64, at 502-05. Morton, Weinstein and Weinstein reported

that the Cross model explained some, but not all, of their difficulty in applying a “pure

andragogical model.” Id. at 505. In addition to the Cross personal and situational charac-

teristics, they identified the following factors: lack of basic legal skills; lack of work experi-

ence; need for certainty; desire for external validation and evaluation; existence of

difference in personality and learning styles; and lack of life experience. Although they

described the relevance of each of these factors, the most important factor was the lack of

experience. Id. at 508-12.

Id.

See supra Part II(A)(5) (discussing the Reflective Judgment Model and solving un-

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Spring 2014] Stages of Reflection 331

awareness of differences in personality and learning styles.

The distinct model of adult learning shows promising application

in the context of a law school clinic.

The success of Bloch’s an-

dragogical model depends on the experience of the learner.

Bloch’s

model stands at an aspirational model for a clinical teaching environ-

ment, however, it may take some effort to move students to a place

where they are able to succeed in an androgogical environment. In-

creasing the reflective capacity of students may move them toward

readiness for a clinical learning environment.

ART

III: T

TAGES OF

EFLECTION

The Stages of Reflection are consistent with the models from

other disciplines described above. A staged approach has been widely

adopted since Piaget, and continues to be the preferred method of

categorization.

Although some researchers (for example, the Neo-

Kohlbergians) prefer a model where individuals do not advance lock-

step from one stage to another, all of the prevalent models include

some form of movement from foundational levels to higher-order

levels.

In the Stages of Reflection model described below, the first two

stages assist the student with the transition away from a dualistic rela-

tionship with knowledge. For example, the first stage asks the student

to compare her performance to a relatively objective standard. The

second stage asks the student to describe difference and choice – the

different ways the assignment could have been completed and the

choices the student made in the completion of the assignment. After

the first two stages, the student is ready to analyze the reasons she

made specific choices.

In the third stage of reflection, the student must identify the in-

ternal factors that affected her professional decision-making process.

Often the experience of practicing law forces the student to confront

structured problems).

See infra Part IV(B). However, an adult learning style is not a panacea, and a num-

ber of factors affect the success of the model. As teachers, we must prepare for the reality

that some students are not ready to engage as adult learners.

The key to the Knowlesian distinction between adult and non-adult learners is that

adults have acquired knowledge through experience, and they have become acculturated

to acquiring knowledge through experience. Although some law students lived adult lives

before returning to school, the vast majority of law students come almost directly from

undergraduate school. In the words of Morton, Weinstein and Weinstein, “the wealth of

life experience anticipated by the andragogical model is just not there.” Morton et al.,

supra note 64, at 511-12.

Barbara Hofer, Personal Epistemology Research: Implications for Learning and

Teaching, 13 J. E

DUC

. P

SYCHOL

. R

. 353, 356 (2001).

Id. at 355-59.

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332 CLINICAL LAW REVIEW [Vol. 20:317

deep-seated and very personal issues. Frequently, the student en-

counters a moment of self-realization. Everything from the student’s

style of communication to manner of dress is open for analysis. The

student should develop awareness about his internal preferences, ex-

periences, biases and characteristics. These internal factors shape his

individual perspective and exert an influence over his decision making

process. These personal factors form a personal, internal context.

In stage four, the student must move from an internal, individual-

istic perspective to an external perspective. The student must describe

the external context of the lawyering performance. The student is not

acting in a vacuum, and must be aware of the preferences, exper-

iences, biases and characteristics of the other people involved in the

representation. These factors form the external context of the

representation.

In the fifth stage, the student should develop an awareness of a

broader societal context. The lens of examination becomes much

wider, and includes more than the individual lawyer or the specific

representation. The student focuses on social structures and political

institutions, on economic realities, and on human tendencies.

At the final stage, we ask the student to turn her attention back

on herself. However, the object of the reflection is not the action of

the lawyering process, but rather the effect of reflection on the stu-

dent’s thought process. We want the student to be aware of her own

reflective process and the effect of reflection on her actions. At this

sixth, meta-cognitive stage, the student is reflecting about reflection.

The central idea of the Stages of Reflection model is that the

teacher can guide the student to the higher stages of reflection by

passing through the earlier stages. Reflective assignments should ask

the student to consider progressively more complex factors that affect

the lawyering performance. Students should advance along a contin-

uum by developing increasingly complex modes of reflection. The

early stages of reflection meet the student on terms consistent with

early levels of cognitive and moral development. The process of mov-

ing from one level to the next in the Stages of Reflection is consistent

with the movement from one level of to the next in cognitive or moral

development. The table below demonstrates graphically the synthesis

between the various models of development and the Stages of

Reflection.

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Spring 2014] Stages of Reflection 333

Stages of Reflection and Staged Models of Development

Stages of Reflection Perry’s Stages of Kohlberg/ King & Kitchener:

Cognitive Development Neo-Kohlbergian Reflective Judgment

Stages of Moral

Development

1. Competence Dualism (Stage 1-2) Pre-Conventional Pre-reflective thinking

(Prompt: Did you There are right (Stages 1-2)/ (stage 1-3)

meet the standard answers. Personal Interest Rejection of alternate

of competence?) (Schema 1) beliefs; most issues have

a right answer; right

answers emerge from

authority.

2. Difference & Multiplicity Conventional Quasi Reflective

Choice (Stage 3-4) (Stages 3-4)/ Thinking (Stages 4-5)

(Prompt: Is there The answer depends on Maintain Norms

more than one way one’s perspective. (Schema 2)

to accomplish your

objective? At what

point in the

performance did

you make a

choice?)

3. Internal Context Multiplicity Quasi Reflective

(Prompt: What (Stages 3-4) Thinking (Stage 5)

internal factors The answer depends on Reflective Thinking

affected your one’s perspective. (Stage 6)

choices?) Beliefs can be justified

through reason and

evidence; some beliefs

are context-specific.

4. External Context Relativistim Reflective Thinking

(Prompt: What (Stages 5-6) (Stage 6-7)

external factors Different contexts Solutions may be

affected your produce different constructed through

choice?) answers. comparison of different

perspectives and

contexts.

5. Societal Context Commitment Post-Conventional Reflective Thinking

(Prompt: What (Stages 7-9) (Stages 5-6)/ (Stage 7) Conclusions

societal factors Responsible decisions (Schema 3) are the most complete

affected your flow from reference to or the most plausible

choice?) principles; the process given the available

of knowing is evidence.

constantly evolving.

6. Metacognition

(Prompt: How did

reflection affect

your decision-

making process?)

The section below explains each stage in more detail.

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334 CLINICAL LAW REVIEW [Vol. 20:317

A. Stage One: Competence

In the first stage of reflection, the student must compare her per-

formance to the standard of professional competence.

Prompts for

this stage ask the student to describe the standard of competence and

then to apply that standard to her performance. Specific prompts

could be any of the following: What would a competent lawyer do in

this situation? What would be necessary to achieve a basic level of

competence in the performance? Did you meet the standard of

competence?

Two goals are imbedded in this stage. First, this initial stage fo-

cuses on the professional standard of competence. Students must be-

come familiar with the specific language governing attorney conduct

and the standard of competence. Second, this stage places the process

of reflection in a familiar context. The means of accomplishing the

reflection is intentionally familiar. In earlier academic experiences,

instructors presented the students with a legal standard and asked

them to compare a set of facts to the legal standard and arrive at a

conclusion.

Reference to a fixed standard – of lawyer competence –

defuses some of the initial “touchy-feely” critique because the assign-

ment is grounded in the substantive law of ethics.

This stage also introduces an element of indeterminacy. The stan-

dard of competence is decisively vague.

The Model Rules define

competence as “the legal knowledge, skill, thoroughness and prepara-

tion reasonably necessary for the representation.”

The reflection

forces the student to confront a vague and indeterminate standard.

Although the rules provide the student with a legal standard, the rules

do not help the student understand what the standard means. With-

out the benefit of experience it is difficult for the student to know

The standard of competence is described in the Model Rules of Professional Con-

duct, or in the rules of professional conduct adopted by specific jurisdictions, or state or

local bar associations. See, e.g., M

ODEL

ULES OF

ROF

’

ONDUCT

1.2, 1.3, 1.4; see also

. R. P

ROF

’

ONDUCT

3-110, 3-500. For our purposes, it does not matter which stan-

dard is used, but only that there is an articulated, findable standard.

The Stages of Reflection model is designed for use after the first year. At minimum,

the student would have performed this type of “IRAC” (Issue, Rule, Analysis, Conclusion)

analysis in a first-year legal writing course.

Perry, supra note 12, at 159-60.

One scholar noted the difficulty in defining an objective standard for competency,

stating, “[t]here is no such thing as competency per se.” George Critchlow, Professional

Responsibility, Student Practice, and the Clinical Teacher’s Duty to Intervene, 26 G

ONZ

. L.

. 415 (1991) (excerpted in C

LINICAL

NTHOLOGY

: R

EADINGS FOR

IVE

-C

LIENT

LIN-

ICS

125 (Alex J. Hurder, Frank S. Bloch, Susan L. Brooks, & Susan L. Kay eds., 1997)).

However, the point here is not whether competency can be defined, but rather, whether

the student can focus her attention on her own actions and view those actions from a

professional perspective.

A.B.A. M

ODEL

ULES OF

ROF

’

ONDUCT

1.1 (2013).

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Spring 2014] Stages of Reflection 335

what is “reasonably necessary” for the representation.

To summarize the first stage of reflection, the form and the struc-

ture of the prompt will be familiar to the student (apply a legal stan-

dard to your performance), but the substance will not be familiar

(assess the meaning of “reasonably necessary”). The process of asking

the student to apply the standard of competence to her performance

will generate a higher level of inquiry about what the student knows

and what the student does not know. If successful, the student will

emerge with a better understanding of the purpose of reflection.

As described below, the first stage of reflection matches with the

early and middle stages of cognitive development. By including an

aspect of propositional knowledge in the form of a restatement of the

standard of competence, the reflection assignment meets the student

on the field where he is used to playing. It is familiar ground in terms

of the student’s relationship to knowledge. This type of reflection in-

cludes reference to an external authority.

A Stage One reflective assignment pairs well with a lawyering

performance related to legal research. In a typical legal research as-

signment, there is an “answer” that the student must find through the

exercise of professional competence.

The student might reflect on

his level of knowledge in the area, the professional duty to conduct

thorough research, the challenges the student faced in performing the

assignment, and whether the student met the standard of competence.

Finally the student might comment on steps he would take if he were

to receive a similar assignment in the future.

This stage presents a challenge for some students, particularly

those who feel less confident in their abilities.

Asking a second-year

or third-year law student to candidly assess whether she performed

competently in a lawyering task has the potential to produce anxiety,

particularly if the reflection is required as part of the course.

For example, the following except is taken from a student’s re-

flection on a legal research assignment. In the assignment, the student

was asked to watch a video recording of an interview with a client and

to prepare a memorandum of law addressing the legal issues

presented in the interview. In a separate reflective memo, the student

included the following passage.

The first stage of reflection would be appropriate for many courses outside of the

clinical or experiential learning context. The later stages of reflection are more appropri-

ate for courses where the student is engaged with actual or simulated clients.

I thank Adjunct Professor Stacie Patterson, Esq., for her thoughtful dialogue on this

issue. Experience has shown no correlation between the confidence and ability of stu-

dents; often the most confident are the least competent. Conversely, a lack of confidence

can be an indicator of higher competence because a greater degree of care accompanies

the completion of the task.

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336 CLINICAL LAW REVIEW [Vol. 20:317

The State Bar of California defines competence in any legal service

to mean to apply the 1) diligence, 2) learning and skill, and 3)

mental, emotional and physical ability reasonably necessary for the

performance of such service.” Cal. Rule of Prof. Conduct, Rule 3-

110(B). . . . Though I feel my level of competence in preparing this

memo was on par with the “reasonable” standard, there were ele-

ments that fell below par for my personal standards. Namely, I fell

below my personal standard for diligence by not taking the time or

care to research and prepare my outline more efficiently before I

started writing.

This reflective memorandum followed the IRAC formula, a struc-

ture familiar to the student. The reflection began with recitation of

the legal standard of competent performance, here, encapsulated by

California Rule of Professional Conduct 3-110.

The student then

compared her performance to the “reasonable” standard articulated

by the rule. The key difference between the reflective memorandum

and other research assignments was that the student had to compare

her own actions against the legal standard. Interestingly, she noted

that she felt she “was on par with” the objective standard required by

the rule, but failed to meet her own subjective standard. By “objective

standard,” I mean the “reasonably necessary” standard from the

Model Rules; by “subjective standard” I mean the student’s “personal

standard” of what she considered to be competent. She distinguished

between “the ‘reasonable’ standard” and her own “personal

standard.”

In another example, a student noted a difference between the ob-

jective (rule based) requirements and his subjective view of what was

required in the performance. “In this situation I think I met the stan-

dard for being a competent attorney. This is a minimal standard,

though, and I hope I was able to accomplish more than just the

minimum.”

The reflective process helps the student develop an individual

professional identity. Through the reflective process, the student dis-

tinguished the “minimal” legal standard for performance from the stu-

dent’s personal standard, which was higher than the minimum. These

students demonstrated an internalization of a professional duty. They

moved beyond doing “just the minimum” – what the rule told them to

Student A, Reflective Memorandum (Sept. 21, 2012) (on file with the author). To

preserve student confidentiality, student authors are identified by pseudonym – e.g., “Stu-

dent A.” The original student works remain on file with the author, who is Director of the

STEPPS Program at California Western School of Law.

ALIF

. R. P

ROF

. C

ONDUCT

3-110.

Student A, Reflective Memorandum (Sept. 21, 2012) (on file with the author).

Student B, Reflective Memorandum (Sept. 21, 2012) (on file with the author).

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Spring 2014] Stages of Reflection 337

do. They formed their own “personal standard” or rule that governed

their behavior. The articulation of a personal standard is an important

step in the development of professional identity because it signifies a

shift in the locus of authority from the external source – the rules – to

an internal source – the student’s own personal standard.

The reflective process illuminates various professional values. In

several reflections, students included reference to collaboration in the

lawyering process.

If I were to receive this assignment again, I would do a few things

differently. . .. I would have used my law firm more. Being in law

school, it feels awkward to ask my fellow students for advice on my

memo process. After completing the memo, I feel like I could have

accomplished more by incorporating the rest of our law firm. I re-

ceived good tips and ideas from the few people I talked to, and I

imagine if I would have talked to more people, more good ideas

would have been exchanged.

Another student noted the value of collaboration, but distin-

guished between “similarly inexperienced” classmates and the “com-

petent attorney.”

He started his reflection by reviewing the legal

standard of “1) diligence, 2) learning and skill, and 3) mental, emo-

tional, and physical ability reasonably necessary for the performance

of such service,” but added that the lawyer had a duty to “acquire

sufficient learning and skill before performance is required.”

In the

process of “acquiring sufficient learning,” this student collaborated

with his classmates; however, he did not believe his classmates were

the same as an experienced attorney.

In the performance of this assignment, an attorney (or a 2L acting

as an associate attorney) must make sure to acquire a level of

knowledge of the issues at hand that is reasonably necessary to re-

present and advocate for the client. . . . As I progressed through the

assignment, I found that I was able to brainstorm with my fellow

2L’s and bounce ideas off of them, but I do not think that interac-

tion with similarly inexperienced associate attorneys meets the level

of interaction with competent attorneys that CRPC 3-110

requires.

The reflections allowed students to elaborate on professional

challenges. The issue of time management can be difficult for many

students. One student expressed her frustration as follows. “Given

my definition of a competent lawyer, my performance missed the

Casey & Fehrman, supra note 38, at 96-98.

Student B, Reflective Memorandum (Sept. 21, 2012) (on file with the author).

Student C, Reflective Memorandum (Sept. 21, 2012) (on file with the author).

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338 CLINICAL LAW REVIEW [Vol. 20:317

mark in a few ways. While I submitted work I felt to be adequate and

I identified legal facts and rules, . . . I felt I mismanaged my time

causing the quality of my writing to suffer.”

Another student com-

mented, “I did not feel that I used my time efficiently.”

A third

speculated about an external review of his time: “If I had turned this

memo in to a supervising attorney at an actual law firm, I think her

biggest complaint may have been the amount of time that it took me

to research the issues.”

These few examples evidence an emerging professional identity.

Students first identified the objective legal standard of competence.

100

But they did not stop their analysis at that point. They separated the

objective legal standard of competence from their personal standard

of competence. In addition they noted the value of collaboration, but

with the critical recognition of the value of experience. Further they

noted the importance of time management.

The reflective process amplified the knowledge, skill and values

related to professional identity. The knowledge is the identification of

the ethical rule. The skill is the ability to apply the rule – here, intro-

spectively, to one’s own performance – as well as the ability to man-

age time effectively. The values are personal integrity, collaboration

and experience. Thus even in the earliest stage, the process of reflec-

tion reveals the development of professional identity.

B. Stage Two: Difference and Choice

In the second stage of reflection, we ask the student to identify

different, equally successful ways to accomplish the lawyering per-

formance. The goal of this stage is to move the student from a dual-

istic relationship to knowledge into a more multiplistic relationship.

Students often believe (and hope) there is a single answer. They per-

ceive their task as a mission to discover the single answer and then

demonstrate that discovery to the teacher.

But in the professional context, there are multiple sets of correct

answers. Once students realize there are multiple correct answers,

they realize that they must choose one course of action from among

the set of possible courses of action.

101

At Stage Two we ask the stu-

dent to identify the different means they could use to achieve the

same end. Once the student recognizes that different routes lead to

Student D, Reflective Memorandum (Sept. 21, 2012) (on file with the author).

Student B, Reflective Memorandum (Sept. 21, 2012) (on file with the author).

Student C, Reflective Memorandum (Sept. 21, 2012) (on file with the author).

100

At minimum the students identified and recited the relevant provisions of the Rules

of Professional Responsibility. A discussion of the precise definition of competency is be-

yond the scope of this article. But see Critchlow, supra note 84, at 433-34.

101

Casey & Fehrman, supra note 38, at 3.

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Spring 2014] Stages of Reflection 339

the same destination, they discover that they made choices – either

consciously or subconsciously – in their performance.

A Stage Two reflection should be matched with a task where the

experience of performing the assignment will demonstrate to the stu-

dent that there is more than one way to accomplish the assignment

successfully. A client interview is an ideal assignment because there

are many different ways to conduct an interview.

The use of video recording technologies is immensely helpful at

this stage for three reasons. First, students can see the performances

of other students and observe different ways to achieve the same

goals.

102

Second, students can review their own performance and ob-

serve the specific places where they made choices. Further they can

see where and how they could have used different means to achieve

the same goal. Third, teachers can evaluate performances and offer

highly specific and individual feedback on student performances. By

asking the student to articulate different means to achieve the same

end, we prepare students for Stage Three, where we will ask them to

assign reasons for their choices.

C. Stage Three: Internal Context

Stage Three builds on the foundation of “Difference and Choice”

from Stage Two. In Stage Three, the student considers why she made

a specific choice. The exploration of the decision-making process –

answering the question, “why?” – is at the core of reflective practice.

Thus, where Stage One and Stage Two prepare the student for the

analysis of the decision-making process, Stage Three asks the student

to explain why she made specific decisions in the context of a profes-

sional performance.

In explaining the rationale for specific choices, the student should

refer to the “internal context.” By internal context, I mean the prefer-

ences, experiences, biases and characteristics owned by each of us that

shape the decisions we make.

103

Stage Three is focused on helping the

student become more self-aware.

Professionals must obtain a level of self-awareness. Students must

recognize that personal characteristics, experiences, biases and prefer-

ences affect the lawyering performance. Characteristics include im-

mutable physical attributes, such as race or gender or physical stature,

102

Before sharing student performances, the teacher must create an environment of

trust. See generally Schrader, supra note 37, for a more detailed explanation of the safe

learning environment.

103

Ogilvy, supra note 2, at 71-72; see also Jane Aiken, Striving to Teach “Justice, Fair-

ness, and Morality,” 4 C

LIN

. L. R

. 1, 12-22 (1997) (Aiken described efforts to help stu-

dents identify their position of privilege.).

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340 CLINICAL LAW REVIEW [Vol. 20:317

as well as personality traits, such as introversion or attention to detail.

Past experiences can also shape the lawyering performance. So, too,

personal preferences and biases shape the way individuals perform as

lawyers. The goal in this stage of the reflective process is to shine a

light on the personal traits and experiences that affect the new law-

yer’s decision-making process. The ultimate goal is to develop in the

student a greater sense of self-awareness.

In the following example, a reflection following a negotiation as-

signment, a student noted personal characteristics that affected her

performance.

On some level, I think I want to put people at ease and find com-

mon ground, rather than get my own way. To be a good negotiator,

I expect that a person needs to be comfortable making the other

person uncomfortable, at least a little. . . . I tend to want to compro-

mise and I am willing to pay more money just to close the deal. I

suspect this has to do with the fact that I am a novice. Hopefully,

experience will help me overcome my people-pleasing tendencies.

After all, an attorney should be focused on pleasing her client, not

everybody else. . . .

I like to be open and honest and get to the point. Efficiency is al-

ways one of my goals. . . I hate wasting time! . . . My impatient

nature is not well suited to negotiating or structuring deals. Maybe

transactional work is not the best field for me.

104

Here, the student identified personal characteristics – her prefer-

ence for efficiency, her desire to put people at ease, her affinity for

candor, and her willingness to “pay more to close the deal.” She also

acknowledged that these personal characteristics may not be the best

match to the assigned lawyering task of negotiating a contract.

105

Another student noted his previous professional experience.

“My background involves real estate and business, so I felt a little

more comfortable with this negotiation. I think I had an understand-

ing of how to value things, and which things had more value than

others.”

106

In the same vein, another student referred to her experi-

ence in sales. “I have had many years experience in sales and showing

clients the value added by making certain decisions. I feel like those

skills really helped me in my negotiation.”

107

The same student re-

ferred to her affinity for numbers. “I am normally a very analytical

person. Working with numbers, calculating cost and goodwill defi-

104

Student E, Reflective Memorandum (March 25, 2013) (on file with the author).

105

Whether she is correct about the suitability of her preferences for transactional work

is a discussion for another day.

106

Student F, Reflective Memorandum (March 27, 2013) (on file with the author).

107

Student G, Reflective Memorandum (Sept. 23, 2013) (on file with the author).

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Spring 2014] Stages of Reflection 341

nitely sparked an interest for me. . ..”

108

Similarly, another student

noted, “I am generally more risk tolerant than risk averse.”

109

One’s

risk adversity can greatly influence the choices one makes in the pro-

fessional context. In addition to one’s own risk preferences, one must

also be attentive to the risk tolerances of others, which brings us to

Stage Four.

D. Stage Four: External Context

In Stage Four, the focus of attention shifts from internal context

to external context.

110

Students must be aware of the preferences, ex-

periences, biases and characteristics of the other people involved in

the lawyering performance. These other people include clients, other

lawyers, judges, and third-party neutrals.

For example, in one exercise students performed a simulated ne-

gotiation. Before the negotiation, students received descriptions of

different negotiating styles, along with a self-assessment tool to deter-

mine their preferred negotiating style.

111

One of the key pedagogic

goals was to allow students to experience the way different lawyers

would approach the same problem.

The reflections at this stage can include both personal prefer-

ences and strategic choices. For example, one student commented

that her “default” competitive style did not work because her partner

in the negotiation also displayed a competitive style.

112

Because the

client’s goals were not oriented to a competitive or distributive out-

come, the lawyer changed her style to a more collaborative or accom-

modating style.

113

In this example, the student has reached the fourth

stage of the Stages of Reflection. She reached Stage One when she

identified what is necessary for a competent performance of the law-

yering task. She reached Stage Two when she identified difference –

that there were different ways to achieve the client’s objectives. She

achieved Stage Three when she recognized her own preferences, bi-

108

Student G, Reflective Memorandum (Sept 23, 2013) (on file with the author).

109

Student F, Reflective Memorandum (March 27, 2013) (on file with the author).

110

The shift in focus from internal context to external context is consistent with higher

levels of moral and cognitive development, where the focus shifts from the self to the

universal. See infra Section III(B).

111

We use the Thomas-Kilman Conflict Mode Instrument (TKI). Under the TKI, there

are five core styles for dealing with conflicts: Competing, Collaborating, Compromising,

Accommodating, Avoiding. K

ENNETH

W. T

HOMAS

& R

ALPH

H. K

ILMAN

, T

HOMAS

-K

IL-

MAN

ONFLICT

ODE

NSTRUMENT

(1974).

112

Student H, Commentary, Spring 2011(memorialized in email on file with the author).

113

In the negotiation exercise, each student represented a party in a transactional set-

ting. The interests of the parties aligned, and both parties placed a greater value on inte-

gration than on a distribution of fixed assets. In other words, the parties placed a greater

value on the relationship than on the money.

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342 CLINICAL LAW REVIEW [Vol. 20:317

ases, characteristics and experience: she noted her preference for a

competitive negotiating style. And she reached Stage Four when she

identified extrinsic preferences, biases, characteristics and exper-

iences: she noted that her negotiating partner also displayed competi-

tive tendencies and her client did not favor a distributive outcome.

114

Importantly, the student demonstrated an awareness of the deci-

sions she was making. She reviewed her performance and analyzed

the decision points. She consciously and deliberately thought about

the ways she might improve her performance. Thus her lawyering

performance was shaped by intrinsic as well as extrinsic factors. In the

language of reflective practice, she engaged in intentional thought

about specific actions in a professional context.

115

Another student demonstrated awareness of external factors

when she noted the difficulty in modulating the levels of formality and

familiarity. In her interaction with a client, she made decisions based

on her perception of what would work best in the specific context.

[I]n some places I let myself get a little too casual and conversa-

tional, but I don’t think it was too detrimental to the client’s percep-

tion of me as a professional. I chose to remain more relaxed and

causal because I think a client, particularly another attorney, wants

to be treated as another person, not as a client who must defer to

the expertise of the attorney. I think if I had been too stiff and

formal with the client, it could have made him uncomfortable. . . . I

felt that too much formality might make the client feel in a more

subordinate position[.]

116

Stage Four reflections should include reference to factors exter-

nal to the student. For example, in a reflection following a negotiation

exercise, students explicitly referred to the preferences of the oppos-

ing counsel in her decision making process. One said, “In the end, my

partner’s extreme willingness to compromise and his initial approach

heavily influenced my decision.”

117

Another noted the effect of nego-

tiating with another lawyer with a style similar to his own. “I recog-

nized that this assignment was and could have been greatly influenced

114

The student’s description of this scenario raises another question: to what extent is

there a difference between the student’s awareness of the context and the student’s ability

to act on her knowledge? Said another way, how much does the actual performance mat-

ter? In a professional context it is not sufficient to merely be aware of aspects of the

performance; the new lawyer must be able to act on her awareness. The scope of this

article focuses on developing awareness through a sequenced and progressive instruction

in reflection. The point is that awareness is a prerequisite to action. Even if the student

did not act on her awareness, she is in a better position to act in a more effective manner in

her next performance.

115

, E

DUCATING THE

EFLECTIVE

RACTITIONER

, supra note 19, at 26-36.

116

Student J, Reflective Memorandum (March 6, 2013) (on file with the author).

117

Student D, Reflective Memorandum (March 27, 2013) (on file with the author).

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Spring 2014] Stages of Reflection 343

by my partner’s style. I feel that I was lucky because we were both

collaborative and both had similar styles and personalities.”

118

Other students anticipated the characteristics of the other side

and made decisions accordingly. In one instance, a student reflected

on her choice of attire.

I consciously did several things to ensure I was seen as approacha-

ble and accommodating. I not only planned out my discussion, but

even my appearance. It might seem minor, but I think appearance

can go a long way in conveying personality. I chose to wear a dress

rather than a suit; I feel a suit, particularly on a woman, is very

professional, but in a different way than a dress. It embodies more

strength and intimidation. But I wanted to seem approachable and

open, so I wore a nice dress instead. I also wore my hair down

because pulling it back conveys a little more severity than just leav-

ing it down. However, this choice was made based on my knowl-

edge that my partner was a female. Females often get very

competitive with one another so I wanted to minimize any of those

subconscious vibes. If my partner had been male, I would most def-

initely [have] worn a suit. I feel like males tend to be more aggres-

sive and can even be patronizing towards women without realizing

[it].

119

This student demonstrated her awareness of external factors in

the context of the lawyering performance. She decided to wear a

dress rather than a suit for two reasons. First, she wanted to appear

“more approachable and accommodating,” and “open.”

120

Second,

she wanted to minimize the “subconscious vibes” of competition in a

female-to-female interaction.

121

The point is that the student was

aware of this as a potential issue and she regulated her conduct in an

effort to avoid potential conflict – to reach the desired end in the law-

yering performance. In her final few lines, the student begins to ad-

dress gender dynamics.

122

She is ready for Stage Five, where she can

engage with the societal context of power relationships.

The reflections at Stage Four show an important step in the devel-

opment of professional values. Stage Four tracks the models of cogni-

tive and moral development because the student moves from an

absolutist to a contextual understanding of the lawyering process. The

student is not merely concerned with how she feels or what she per-

ceives. At Stage Four, she demonstrates an awareness of how others

118

Student G, Reflective Memorandum (March 23, 2013) (on file with the author).

119

Student J, Reflective Memorandum (March 27, 2013) (on file with the author).

120

Id.

121

Id. Whether the student is correct about the competitiveness of females is not the

subject of this paper.

122

Id.

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344 CLINICAL LAW REVIEW [Vol. 20:317

perceive her in a professional context. The comments about “the cli-

ent’s perception of me as a professional” show an important shift in

the student’s thinking: she has adopted and internalized the identity of

a professional. In addition, her point of concern has changed from her

perception of herself to the client’s perception of her.

Stage Four reflections can be paired with any interactive law-

yering task. For example, client interviews, counseling sessions, nego-

tiations, mediations, and oral arguments would all be appropriate

because they require the student to interact with another person. Re-

search and writing exercises are not effective at developing Stage Four

reflections because they tend to be highly individual and they are not

dynamic. Video recording of the performance provides a highly effec-

tive means for the student and the teacher to review the performance.

E. Stage Five: Societal Context

In the Fifth Stage, students consider not only case-specific factors

that influenced their performance, but also systemic power dynamics,

political and social realities, and economic forces that affect their deci-

sions. At this juncture, the student should be exposed to different the-

oretical models that might help explain societal or collective

expression of preferences, biases, and experiences.

123

For example, critical legal theory might assist a student to explain

power dynamics, hierarchies, and the historic experience of race in

our judicial system might explain the lingering effects of unarticulated

biases and preferences.

124

The student should be identifying societal

forces and factors that influenced his professional decision making

process.

Professor Jane Aiken, for example, has described a clinical stu-

dent’s representation of a gay client whose partner was denied visita-

tion by a hospital policy.

125

When student was unable to execute a

power of attorney that would have allowed the visitation,

126

he had to

confront a societal bias that affected his exercise of professional judg-

123

For example, as illustrated below, Critical Theorists offer a range of perspectives that

challenge a student’s perception of “reality.” Some students will have a level of awareness

about societal context, but others will find it difficult to move into this stage without some

exposure to theoretical frameworks.

124

See generally D

UNCAN

ENNEDY

, L

EGAL

DUCATION AND THE

EPRODUCTION OF

IERARCHY

: A P

OLEMIC

GAINST THE

YSTEM

(1983); R

OBERTO

M. U

NGER

, T

RITI-

CAL

EGAL

TUDIES

OVEMENT

(1983); see also Carrie Menkel-Meadow, Feminist Legal

Theory, Critical Legal Studies, and Legal Education or “The Fem-Crits Go to Law School,”

38 J. L

EGAL

DUC

. 61 (1988).

125

Jane Aiken, Striving to Teach “Justice, Fairness, and Morality”, 4 C

LIN

. L. R

. 1

(1997).

126

Id. at 2.

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Spring 2014] Stages of Reflection 345

ment (and the outcome of the representation).

127

Professor Aiken de-

scribed the way the student could create meaning from the experience

through reflection.

This learning experience should assist the student in seeing how his

own bias made him unable to anticipate his client’s needs, thus lim-

iting his ability to serve the client. It demonstrates how his unaware-

ness of his own heterosexuality affects his vision, reinforces the

status quo, and can heighten his client’s pain. More importantly, this

poignant moment in his relationship with his client can prompt him

to anticipate the ways his various privileges may have affected him

in other areas of his life. It is this understanding that will make

transformational learning possible.

128

This is an example of an ideal environment to promote Stage Five

reflection. The student must describe not only internal context (his

own characteristics, preferences or biases), but also external context

(the preferences and biases of hospital workers, family members who

opposed the visitation, the judge, and the lawyers on the other side),

and, importantly, societal context (the history of discrimination and

bias against gay relationships, and the reinforcing effect of legal insti-

tutions). Critically, the success of the representation depends on the

lawyer’s awareness of these different contexts, and in this example,

societal context would play a large role in the choices made by the

lawyer in the course of the representation.

The best opportunities to develop Stage Five reflection occur in

live-client experiences.

129

The point of this stage of reflection is to

place the student in a position where he can experience events that

challenge his prior experiences. Professor Fran Quigley called this a

“disorienting moment” – where he cannot explain the event through

127

Professor Aiken used the student’s experience to promote reflection. Id. at 3 n. 2.

128

Id. at 3.

129

The difficulty in creating simulations that relate to societal context stems from the

willing suspension of disbelief necessary to place the student in the role of lawyer in a

simulation. (One author described the willing suspension of disbelief as “[s]omething [that]

happens to ‘transport’ the person from being a ‘spectator’ to being absorbed in the charac-

ters and story.” A

NTHONY

ERRI

, W

ILLING

USPENSION OF

ISBELIEF

: P

OETIC

AITH IN

ILM

, 8 (2007) (describing the theories of Samuel Coleridge, who coined the phrase “will-

ing suspension of disbelief.”)). Simulations are likely to be successful learning tools where

the student accepts the role and engages accordingly. Where the student faces difficulty in

accepting the role, the simulation may not be as effective because the student may simply

decline to engage. For example, a student could fail to engage because of her belief that

“this would never happen in real life.” A real representation does not offer the student the

chance to opt out—she must continue with the representation even when difficult and

unpredictable events occur. The student can’t say “this would never happen in real life,”

because “this” (referring to an unlikely event or an unpredictable result) actually hap-

pened “in real life.” The indeterminacy of a real representation is one of the primary

advantages of learning in the live-client environment—and one of the greatest challenges

to teaching in it.

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346 CLINICAL LAW REVIEW [Vol. 20:317

his prior experience.

130

A commitment to reflection will assist the stu-

dent in his quest to derive meaning from his experiences.

Stage Five parallels the shift to the highest levels of operation on

the models of cognitive and moral development. The student must be

able to move from a concrete example to an abstract principle. In

addition, the student must think beyond absolute terms to contextual

solutions. Finally, the student will begin to articulate universal princi-

ples. Moreover, the deeper capacity for cognitive and moral reason-

ing will assist the student in exercising professional judgment.

F. Stage Six: Metacognition

Metacognition generally refers to thinking about thinking.

131

Part of metacognition involves thinking about the acquisition of

knowledge and the process of learning.

132

The Metacognitive Stage

could refer simply to the student’s awareness of and relationship to

the learning process.

133

The earlier stages ask students to comment

about historical actions. We ask them to explain, as best they can, why

they made certain decisions. We ask them to consider their own pref-

erences, biases, and experiences of themselves, and the preferences,

biases, and experiences of others involved in the lawyering activity.

We even asked them to consider societal preferences and biases, histo-

ries, and narratives that shaped their performance.

At the Metacognitive Stage, we ask the student to consider how

they think. Specifically, we ask them how they think differently, or,

how their thinking process has changed, as a result of reflection on the

lawyering activity. For example, one student commented on the way

his outlook on life had changed as a result of engaging in reflection

during the course.

I found that the process of reflection made me more thoughtful in

130

Fran Quigley, Seizing the Disorienting Moment, 2 C

LIN

. L. R

. 37, 51 (1995); see

also Aiken, supra note 125, at 23 n. 73 -89 and accompanying text (describing how clinical

teachers can teach justice, fairness and morality by exposing students to events that de-

mand a higher level of awareness).

131

J.H. Flavell, Metacognition and cognitive monitoring: A new area of cognitive-devel-

opmental inquiry, A

. P

SYCHOL

. 34, 906-911 (1979); J. M

ETCALFE

& A.P. S

HIMAMURA

ETACOGNITION

: K

NOWING

BOUT

NOWING

(1994); J

ENNIFER

A. L

IVINGSTON

ETACOGNITION

: A

VERVIEW

(1997), available at http://gse.buffalo.edu/fas/shuell/

cep564/metacog.htm (last visited January 23, 2014).

132

These aspects of metacognition are often referred to as metacognitive regulation.

133

Professor Ogilvy describes several forms of reflection that could be included in the

metacognitive category. Ogilvy, supra note 2, at 77. For example, he describes reflections

where the student considers her knowledge and the gaps in her knowledge, where the

student discusses the personal relationship to the course material, where the student

monitors her own learning, or where the student discusses his relationship to legal educa-

tion. Id at 77-80. These examples describe a learner’s relationship to the process of

learning.

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Spring 2014] Stages of Reflection 347

all aspects of my life, not just in my lawyering performances. I don’t

know if it was your intention, but after your course, I’m much more

contemplative now . . . about everything in my life.

134

The student demonstrated the Metacognitive Stage because he

noted his awareness of the change in his manner of thinking. While

earlier stages demonstrated a movement from self to universal, the

Metacognitive Stage marks a movement from universal back to self.

But the self at the Metacognitive stage is different from the self at

earlier stages. The student is more conscious of his own actions and

decisions, more aware of the perceptions of others, more integrated

with his professional identity, more conscious of social context, and

able to articulate the changes in his modes of thinking. In sum, the

student at the meta-cognitive level is more contemplative.

G. Summary of the Stages of Reflection

Research in the disciplines of psychology and educational theory

informs us that the learner’s epistemic cognition – the way the student

perceives knowledge – is one of the most important factors in a stu-

dent’s learning process. The models described above share a view that

students start with a self-interested perspective and move to a state of

awareness of others and a universal perspective. Further, epistemic

cognition shifts from concrete to abstract as a student progresses to

higher levels of cognitive and moral development. In early stages of

development, students tend to apply their knowledge in absolute

terms; in later stages, they apply knowledge contextually. The re-

search models are consistent with regard to a structure of stages (or

schema), and with respect to movement along three axes: Self-Cen-

tered to Universal; Absolute to Contextual; and Concrete to Abstract.

The research also informs us that students’ ability to understand and

solve complex, “unstructured” problems increases when a student de-

velops the capacities to think abstractly, to reason contextually and to

apply universally.

An effective lawyer must achieve high levels of cognitive devel-

opment in the areas of moral reasoning and reflective judgment.

These capacities are imbedded in what we call professional skill or

professional judgment. As teachers, we look to reflection as a way to

increase our student’s ability to exercise professional judgment.

135

Professional judgment includes not only knowledge about a specific

134

Student K, Commentary, Spring 2010 (memorialized in email on file with the

author).

135

I intend the scope of professional skill and judgment to be read as broadly as possi-

ble. I mean to include aspects of personal awareness, social responsibility, career satisfac-

tion and professional identity.

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348 CLINICAL LAW REVIEW [Vol. 20:317

area but also the ability to apply moral principles and solve unstruc-

tured problems. Deliberate reflection aids the student in developing

professional judgment by forcing the student to increase her aware-

ness of factors that affect her performance, and to think critically

about her actions. The Stages of Reflection assist the teacher by pro-

viding a way to modulate the reflective process and increase the stu-

dent’s reflective capacity.

ART

IV: T

EACHING

EFLECTIVE

RACTICE

Can you tell me, Socrates, is virtue something that can be taught? Or

does it come in practice? Or is it neither teaching nor practice but

natural aptitude or instinct?

136

A. Engaging Students with the Stages of Reflection

The Stages of Reflection can be used to develop specific prompts

for reflective assignments. In most situations, the reflective assign-

ment will be in response to a specific performance. The reference to a

specific performance can assist the student because he will have a con-

crete experience to which he can refer. The table on the following

page contains a series of possible prompts that can be used to promote

each stage of reflection. Obviously there are many more questions

that could be used to prompt reflective responses. This list should not

be viewed as an exhaustive list, but rather, as a starting point.

In teaching the Stages of Reflection, we should not expect to see

our students fit perfectly in one stage or another. Rather, the point of

teaching reflection in stages is to show the student – and the teacher –

that movement is possible. Often the critical step in the teaching pro-

cess is starting at a low baseline and then moving forward.

B. The Stages of Reflection in the Clinical Context

The Stages of Reflection add an important component to the

clinical context. Most clinical programs already use reflection in the

form of journals or other assignments.

137

These assignments are an

important part of the learning process as they offer a chance to sepa-

rate “action” from the “reflection.”

138

136

EGINALD

LLEN

, E

., G

REEK

HILOSOPHY

: T

HALES TO

RISTOTLE

, 3d ed. (1991)

at 110, citing P

LATO

, P

ROTAGORAS AND

ENO

TRANS

. W.K.C. G

UTHRIE

(1956).

137

A.B.A. Standard 305 does not prescribe the use of journals. A.B.A. S

TANDARDS

supra note 1. While my personal assumption is that reflection occurs primarily in the form

of written assignments, and in my own teaching I have required students to submit reflec-

tions in written form, these “opportunities for student reflection” do not necessarily have

to be in writing.

138

Sch ¨on describes this concept as “reflection-in-action.” Sch ¨on, supra note 6, at 243.

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Spring 2014] Stages of Reflection 349

Stage of Reflection

Questions or Prompts to Connection to Cognitive

student Developmental

1. Competence Did your performance meet -Adherence to authority and

the standard of a reasonably rules

competent lawyer? -Use of concrete and familiar

format

-Focus on self – student’s own

performance

2. Difference and Are there different ways you -Shift away from concrete

Choice could have accomplished the format and dualism –

performance? introduction of multiple

At what point in the “right” answers

performance did you make a -Focus on self – student’s own

choice? performance

Were you aware of the making -Some attention to others

the choice? (other performances may be

relevant to defining

difference)

-Identification of personal

decision making

3. Internal Context Why did you make certain -Focus on self

choices in your performance? -Contextual – every student’s

What personal experiences, experience will be different

characteristics, preferences or

biases affected your decision-

making process?

4. External Context Why did you make certain -Focus on others and away

choices in your performance? from self (but the shift is not

Did you perceive different to level of universal)

characteristics, experiences, -Contextual – every

preferences or biases in other representation will be different

people involved in the because different people will

performance? be involved

How did your perception of -Identification of others’

others affect your perceptions of self (may

performance? include reference to

professional identity)

5. Societal Context Why did you make certain -Focus away from self to

choices in your performance? universal

Were you aware of societal -Identification of social power

and institutional structures structures

that could affect your -Identification of role of

performance (collective lawyer in society

preferences, biases, -Reference to principles that

experiences, histories, social, can guide future performances

political or economic factors)?

How did your understanding

of societal and institutional

structures affect your

performance?

6. Metacognition How has your thinking process -Awareness of cognitive

developed as a result of this process

performance? -Application of universal

How has your thinking process principles back to self

developed as a result of your -Actualization

past reflections?

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350 CLINICAL LAW REVIEW [Vol. 20:317

If reflection is an important aspect of clinical pedagogy, then the

Stages of Reflection can provide transparency to a process many stu-

dents find difficult. Moreover, the Stages of Reflection can modulate

the expectations of teachers about their students’ progress and per-

formance. In the process we may find that all of our students progress

more rapidly and to a higher level than they would have otherwise.

In terms of a larger strategy of reform in legal education, reflec-

tion should be integrated at an earlier stage in the curriculum. Imag-

ine a world where students entering the clinic as third-years would

have had two years’ experience developing their reflective capacity.

Imagine a world where students would have spent an entire academic

year in a simulated, virtual law office, where they met on a weekly

basis with a practitioner, and where they were required to interview

and counsel clients and negotiate and draft agreements, and where

they were required to produce guided reflections on each of their per-

formances in line with the Stages of Reflection.

139

These students

would be more prepared for their clinical experiences, better prepared

to serve their clients, and more aware of their own cognitive develop-

ment. In sum, they would be closer to being ready to practice law.

ONCLUSION

In the language of Sch ¨on, the reflective practitioner demonstrates

an ability to think in action – she is aware of her actions and is capable

of directing her actions through a union of thought and action. Criti-

cally, Sch ¨on distinguishes between “thinking on action” and “thinking

in action.” The truly reflective practitioner engages in contemporane-

ous thinking in action, while a non-reflective practitioner might think

retrospectively about past actions. The difference is critical because

the reflective practitioner – the one who thinks in action – has the

capacity to analyze the context and adapt the performance while the

decision is still under consideration. In contrast, the retrospective

practitioner – the one who thinks back about past actions – does not

have the capacity to adapt the performance while it is in progress.

The development of this type of thinking in action is particularly diffi-

cult for novice practitioners because they do not have experience to

guide them in deciding what to consider. The Stages of Reflection

model provides a guide for new professionals to develop the habit of

reflecting in action. The process involves retrospective examination of

decisions (a de-coupling of thought and action), but the goal is to de-

velop the capacity of the new lawyer to think in action. These initial

139

This world exists at California Western School of Law, where students are intro-

duced to reflection in their first-year Legal Skills class, and where students complete the

STEPPS Program in their second year.

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Spring 2014] Stages of Reflection 351

experiences are critical to the future development of the reflective

practitioner because they instill a default preference for reflection.

If we develop in our students the habit of reflective practice, we

affect not only the legal education curriculum, but also the culture of

the practice of law. Even if students never engage in a self-reflective

exercise again in their careers, at least they know the option exists.

And if they do engage in reflection as a regular part of the practice of

law, they have instilled a self-improvement algorithm into their pro-

fessional performance. Every time they perform a task they will be

thinking about whether they met the standard of competence,

whether they could have achieved their goal in a different way to ac-

complish the same task, what choices they made in the process of their

performance, and whether personal or external preferences, biases,

characteristics and experiences influenced the choices they made in

the performance of the task.

In teaching reflective practice, it bears remembering, as Professor

Dawn Schrader has noted, that it is critically important to match the

learning environment to the learner.

140

The experience of Morton,

Weinstein and Weinstein confirms that, as clinicians, we cannot adopt

a “one size fits all” attitude toward our teaching and learning environ-

ments.

141

Certainly some students will possess a highly developed

sense of moral judgment and a refined level of epistemic cognition,

and some will not. The Stages of Reflection will allow us as teachers

to identify the appropriate level for each student and guide the stu-

dent as she advances from one level to the next.

The Stages of Reflection model offers an improvement over an

unstructured approach, and invites critical inquiry into further refine-

ment of the way we teach reflection. By focusing our attention to the

way we teach reflection, we increase our own awareness and heighten

our own capacity for development and improvement as teachers.

140

Schrader, supra note 37, at 87.

141

Morton et al., supra note 64, at 519.

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352 CLINICAL LAW REVIEW [Vol. 20:317

APPENDIX

[TABLE 1]

Perry’s Stages of Cognitive Development

142

Stage of Development Characteristics of Stage

Dualistic (Stage 1 - 2) Certainty and absolutism; there are right answers

1. Basic Duality

2. Complete Duality

Multiplicity (Stages 3-4) There are no right answers because the answer is

3. Early Multiplicity dependent on one’s perspective

4. Late Multiplicity

Relativistic (Stages 5-6) Different answers signify different contexts

5. Contextual Relativism

6. Pre-Commitment

Commitment (Stage 7+) Decisions can be made with reference to principles,

7. Commitment responsibility flows from decisions, the process of

8. Challenge to Commitment knowing is constantly evolving

9. Post-Commitment

[TABLE 2]

Kohlberg’s Stages of Moral Development

143

Stage of Moral Development Characteristics

Level 1: Pre-Conventional Obedience and punishment orientation; Avoiding

1. Heteronomous Morality punishment

2. Individualistic, Instrumental Self-interest orientation; Seeking reward; Interest in a

Morality personal benefit; Expectation to pay for a benefit

Level 2: Conventional Orientation to accord and conformity; Adherence to

3. Interpersonal Normative social norms; concepts of duty

Morality Authority and social-order maintaining orientation;

4. Social Systems Morality Law and order mentality; adherence to written law

Level 3: Post Conventional Social contract orientation;

5. Human Rights and Social Adherence to interpersonal relationships; beyond

Welfare Morality legal structures

6. Morality or Universalizable, Orientation to universal ethical principles; Application

Reversible, and Prescriptive of universal respect through principled consideration

Morality

142

Perry, supra note 39.

143

Kohlberg, supra note 44.

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Spring 2014] Stages of Reflection 353

[TABLE 4]

Neo-Kohlbergian Schema

144

Schema Characteristics Source

Personal Interest Justifies a decision as moral right be Kohlberg’s

analyzing the personal stake the actor has Stage 2 and 3

in the consequences of the action

Maintaining Norms Perceived need for generally accepted Kohlberg’s

social norms Stage 4

Perceived need for society-wide

application of the norms

Perceived need for norms that are clear,

uniform and categorical

Norms establish reciprocal relationship

between citizens

Hierarchical roles must be established

Once must respect authority out of

respect for society

Postconventional Moral obligations are based on shared Kohlberg’s

moral ideas, contain full reciprocity, and Stage 5 and 6

are open discussion and scrutiny

144

Rest, et al., supra note 45, at 386-89.

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354 CLINICAL LAW REVIEW [Vol. 20:317

[TABLE 5]

King and Kitchener’s Model of Reflective Judgment

145

Stages of Reflective Judgment Characteristics

Pre-Reflective Thinking (Stages 1, 2, 3) Beliefs need no justification since there is assumed

Stage 1: Knowledge is assumed to exist to be an absolute correspondence between what is

absolutely and concretely; it is not believed to be true and what is true. Alternate

understood as an abstraction. It can be beliefs are not perceived.

obtained with certainty by direct “I know what I have seen.”

observation.

Stage 2: Knowledge is assumed to be Beliefs are unexamined and unjustified or justified

absolutely certain or certain but not by their correspondence with the beliefs of an

immediately available. Knowledge can be authority figure (such as a teacher or parent). Most

obtained directly through the senses (as in issues are assumed to have a right answer, so there

direct observation) or via authority figures. is little or no conflict in making decisions about

disputed issues.

“If it is on the news, it has to be true.”

Stage 3: Knowledge is assumed to be In areas in which certain answers exist, beliefs are

absolutely certain or temporarily justified by reference to authorities’ views. In areas

uncertain. In areas of temporary in which answers do not exist, beliefs are defended

uncertainty, only personal beliefs can be as personal opinion since the link between evidence

known until absolute knowledge is and beliefs is unclear.

obtained. In areas of absolute certainty, “When there is evidence that people can give to

knowledge is obtained from authorities. convince everybody one way or another, then it will

be knowledge, until then, it’s just a guess.”

Quasi-Reflective Thinking (Stages 4 and 5) Beliefs are justified by giving reasons and using

Stage 4: Knowledge is uncertain and evidence, but the arguments and choice of evidence

knowledge claims are idiosyncratic to the are idiosyncratic (for example, choosing evidence

individual since situational variables (such that fits an established belief).

as incorrect reporting of data, data lost “I’d be more inclined to believe evolution if they had

over time, or disparities in access to proof. It’s just like the pyramids: I don’t think we’ll

information) dictate that knowing always ever know. Who are you going to ask? No one was

involves an element of ambiguity. there.”

Stage 5: Knowledge is contextual and Beliefs are justified within a particular context by

subjective since it is filtered through a means of the rules of inquiry for that context and by

person’s perceptions and criteria for the context-specific interpretations as evidence.

judgment. Only interpretations of Specific beliefs are assumed to be context specific or

evidence, events, or issues may be known. are balance against other interpretations, which

complicates (and sometimes delays) conclusions.

“People think differently and so they attack the

problem differently. Other theories could be as true

as my own, but based on different evidence.”

Reflective Thinking (Stages 6 and 7) Beliefs are justified by comparing evidence and

Stage 6: Knowledge is constructed into opinion from different perspectives on an issue or

individual conclusions about ill-structured across different contexts and by constructing

problems on the basis of information from solutions that are evaluated by criteria such as the

a variety of sources. Interpretations that weight of the evidence, the utility of the solution,

are based on evaluations of evidence and the pragmatic need for action.

across contexts and on the evaluated “It’s very difficult in this life to be sure. There are

opinions of reputable others can be degrees of sureness. You come to a point at which

known. you are sure enough for a personal stance on the

issue.”

Stage 7: Knowledge is the outcome of a Beliefs are justified probabilistically on the basis of

process of reasonable inquiry in which a variety of interpretive considerations, such as the

solutions to ill-structured problems are weight of the evidence, the explanatory value of the

constructed. The adequacy of those interpretations, the risk of erroneous conclusions,

solutions is evaluated in terms of what is consequences of alternative judgments, and the

most reasonable or probable according to interrelationships of these factors. Conclusions are

the current evidence, and it is reevaluated defended as representing the most complete,

when relevant new evidence, perspectives, plausible, or compelling understanding of an issue

or tools of inquiry become available. on the basis of the available evidence.

“One can judge an argument by how well thought-

out the positions are, what kinds of reasoning and

evidence are used to support it, and how consistent

the way one argues on this topic is as compared with