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English for Lawyers and Vygotsky: Rooted in the Past and Testing for the Future

by Mark Forehand

The Issues

Here at International House Kyiv we are in the first year of implementation of a program of English for Lawyers (EL). The current program consists of a class of 10 learners meeting Tuesday and Thursday from 7:00 p.m. to 9:15 p.m. The class is designed for four six-week semesters. Learners take an examination at the end of each six-week semester. The course, at this writing, is entering its third semester with all 10 students retained during that time frame. The course utilizes outside materials as well as Cambridge’s International Legal English, by Amy Krois-Linder and Translegal. While the textbook is suitable for preparation for the International Legal English Certificate, the students in this class are not currently pointing toward taking this examination. For inclusion in this program, learners must be at the Upper Intermediate level of English.

As an ex-practicing attorney from the United States I was immediately intrigued by the idea of teaching this course and was thankfully given the chance. However, I immediately was confronted within myself with several issues that I found, as a practicing professional, that are very important in the field of law.

For anyone interested in, or facilitating, EL, after considering how to teach the actual topic; the question of how to test, what kind of test to give, and how to implement such a test must be considered. EL is an English for Specific Purposes (ESP) topic and therefore it seems consistent to consider that testing should be considered differently than testing that is conducted for general English classes. In general English tests are given which clearly test what the student has learned and usually do not contemplate future use of the language other than that which has been mastered to a certain point in time. Conversely, the issues relating to ESP testing must contemplate the future. Because ESP learners are not interested in past performance but are instead focusing on future production, the issue of testing becomes one of what to test and how to test it.

Teaching

In teaching this ESP course students are working in a vocabulary intensive program. One of the unique aspects of teaching EL in Ukraine is the fluctuating nature of Ukrainian law itself. Many of the concepts found in the text and in Western law in general, are just, for lack of a better word, foreign, to Ukrainian lawyers. Without boring the reader with the intricacies of law in the West, an example of this difference would be the concept of remedies. Remedies are, plainly put, what you can get if you sue someone. The Ukrainian and Russian languages use one word for contract remedies; Black’s Law Dictionary lists 17 different words. Another great example is the article “a”. Ukrainian and Russian do not use articles. However, in the law there are 14 different uses for “a”. (Black’s)

The course book utilizes a combination of TTT, communicative approach and TBL, the actual result is students acquiring, utilizing, and mastering an extensive vocabulary of legal terms. Pursuant to the learner needs analysis, the majority of learners are focused on improving reading, writing, speaking fluency in Western legal terms. Interestingly, learners are not particularly interested in speaking fluency; however, given this is a communicative school, lots of speaking in the target language occurs. As we shall see below, speaking in the target language is absolutely critical for exam production.

The teaching of this class assumes the basic principles of CELTA and the communicative approach. Students work in pairs extensively during course work and individual work usual occurs in the form of reading various cases and materials relating to the chapter under discussion in the course book. Group and pair work is dominant as peer correction is vital in this type of class. Peer correction occurs in a variety of ways. The most common form is that of peer correction of another student’s perception of Ukrainian law and how it relates to Western legal concepts. Student discussions often center on how this or that Western legal concept is like or dislike the law of Ukraine, or not even existent.

Testing

As the course progressed through its first six-week session I pondered how to give a test (mandatory) to 10 attorneys. From the beginning of the course, as well as other ESP facilitating I have conducted elsewhere, my goal was to give learners the opportunity to use their skills in real time and future time. When I use the term future time I mean using skills under testing conditions to determine what a learner could do, not what he can do. Unlike general English, where we test a learner’s ability to use, for example, the present continuous in fairly standard ways, the goal, for me, is to use the vocabulary and legal concepts learned in a way that the student gains additional information about the language in the actual examination itself.

Research into this issue led me to Lev Vygotsky, a 1930’s Soviet psychologist whose work in learning is well published. What immediately interested me about his work was that:

“Vygotksy proposes the notion of Zones of Proximal Development (ZPDs), zones between what he calls ‘actual’ development (what the learner can do independently) and ‘potential’ development (what the learner can do in the future, with the help of others now). Every act of learning occurs within a ZPD, building on what the learner already knows and can do, and is first inter-psychological (social) before it is intra-psychological (psychological). Learning begins by being object-regulated, and then is others-regulated, before it is self-regulated.” Lin, Benedict, Asian EFL Journal, v. 8, i. 3, a. 11, “Genre-based Teaching and Vygotskian Principles in EFL: The case of a University Writing Course.” 2006.

For me, this quotation is perfect for attorneys. Attorneys do not practice in a vacuum. When writing they do not write alone. They use books, research, peer review, and peer discussion. Before giving arguments they use the same methods of books, research and peer review and discussion. As a result, I decided to take different approach to testing learners in this ESP course. That approach, outlined below, utilizes the aspects of Vygotskian ZPD in combination with the material presented in class that might, I hoped, allow learners to “write” an examination that tested future time.

The Parameters

First and foremost, setting the parameters of the examination seemed important. I chose to create a unique testing opportunity for these learners. Obviously, learners’ actual development would be paramount in writing the examination. If the learners’ had not mastered the vocabulary and its corresponding meaning in the context of Western law the learners would not be able to recreate an examination testing future time. However, if they had, the opportunity for a unique examination was present.

Secondly, the expansion of this ZPD could only be brought about by the help of peers and materials. As I indicated earlier, attorneys do not practice in a vacuum. As a result, I chose to allow use of the text book, outside materials, and notes taken during the course during the entire examination.

More importantly, in my opinion, I chose to use Vygotsky’s theory of potential development in the following way. Learners would be allowed to talk to each other during the examination, in English only of course, in order to form a more appropriate answer to each of the questions posed in the examination.

With these parameters it would be interesting to see if the students would operate under the premise Vygotsky initially posited and on which I was basing a testing of learners. If, as I surmised, production could be increased by creating an expanded zone of proximal development, but creating this inter-psychological scenario with these parameters the learners might then be able to engage in self regulation in their written examinations.

Setting the Stage

Having decided on a plan of action, it had to be sold. I approached my students about the examination. They at first had no idea what I was talking about. I explained the process in terms of being an attorney. I asked them all if they ever worked “without a net.” That is, no books, no research, no peer/colleague interaction when producing legal work. Of course, the answer was no. I then said there is no reason not to do the same thing here. The only real question was, “Does that mean the examination will be harder?” Some things never change.

Two classes before the actual examination I conducted a small lesson on how I envisioned the examination working. I presented one problem for the class, the categorization of different corporate entities in both the UK and US, and asked the class to attempt to come up with an answer as a group. After some initial hesitance, slowly but surely the students began to talk out the answer and come up with a discussion. I then asked for individual answers from each person in the class. I did not grade this material. I did review with the class what we had just done and then reiterated that this is exactly how the examination could take place if they operated within the parameters I set out.

One session before the actual examination I conducted an extensive review (revision for my British friends) of the material covered thus far in the course. In terms of book material we covered the first four chapters of the text book. During revision I sought feedback from students regarding what they thought the sort of question I might ask would be. After getting it completely wrong the first couple of times, students started to get the idea and were able to create some examination questions that had I thought of them I might have used. (I couldn’t give the whole playbook now could I?)

The Examination

The examination itself took place on a Thursday from 7:00 p.m. to 9:15 p.m. Below are the 17 questions presented in the examination. As you can see there is no cloze exercise, gap fill, or listening. The entire process, that is to say, peer work, review of the materials, discussion and group analysis was designed for the learner to produce a written product.

The examination began on time. Before beginning the examination I suggested to the class that they review all the questions presented in the examination in an effort to properly organize their time for all of the questions. I further suggested that many of the questions have no correct answer. The reason for this is again to immolate the practice of law as much as possible. I further reminded the class of the exercise we did two classes prior and that it was important that they work in a way that made them comfortable but the entire point of the exercise was to formulate answers much as they would in the outside world.

The first ten minutes were frightening! No one said a word. As I began to make adjustments to what I was going to do with this class and ponder the fact that I might need to go back to testing the past and not the future one small voice arose to ask the rest of the learners “A couple of these questions we can answer very quickly, don’t you think?” This was full fledged relief for me, the beginning of an interesting testing experience for the remainder of the learners.

Of the 10 students in the class, all of them in one form or another worked with a partner, a group of three or four, and on a couple of questions, questions 12 and 17, as an entire group. I conducted no error correction, only monitoring to make sure everyone stayed in the L2, but I observed that students were making decisions about answers as a group. Two of the students, those that I would consider the weakest of the group, did a great deal of speaking with the person next to them about many of the questions.

The entire examination was not one large talking session. A student would bring up a topic, others would give input, there was a discussion about where this information might be found in the text or notes, whether this was the correct answer or not and then a general agreement that it was so. While I had repeatedly advised the students that some questions had no right answer, it is hard to get people past that point, is it not?

After two hours and fifteen minutes I called time. Every student was going over his/her work and all 10 students stayed for the entirety of the examination period. I collected the papers and said good evening.

What did I get?

I wasn’t three steps out of the classroom before I immediately figured out that there had been significant written production from the students. The first paper I looked at was seven pages long! The average length of production was six pages, with two students producing 10 pages of material.

What was very interesting was the commonality of grammar. Students had discussed how things should be said during the course of the examination. Even students who had not been part of a discussion still produced answers on certain questions with the same grammar usage. This also led to the same mistakes; however, I found that to be useful for the experiment as well.

More importantly to me, as both a facilitator and an attorney, was that there were no instances of obvious malpractice by any of the students. This validated for me that my approach could be useful in this type of class.

Student Feedback

In the following class, I reviewed the examination results with the class and then individually with each student. Part of the individual session involved receiving feedback about how they found the examination. By and large, that is to say 8 out of 10, students thought the examination was a good way to take this type of test. Several of the older students, who had been practicing law for some time, were extremely receptive for the reason that they said they understood the concept of not practicing in a vacuum.

The two students who did not like the process seemed more concerned with grades than anything else. One student wanted the process of grading to be more competitive and less about creating a product and more about ranking the class on ability. The other student expressed concerns that this type of examination does not test what he knows. Interesting.

In the feedback sessions the students’ main concerns were that they felt that maybe the examination was too long. My analysis tends to agree with that. Two of the questions, if worked out as a group, would require well over 150 words to answer correctly. In general, however, the majority of students found the process very useful for both learning and for working in a group process at their law offices. Most of the students asked to have the examination papers for referral to it at their law offices.

Conclusion

While this type of examination is clearly not for every type of class, the process described here seems to be working well in this type of ESP format. One of the helpful benefits has been that students are also more vocal with each other in class regarding various aspects of the law. In general, all the students seem more comfortable with each other in the classroom. The affective filter of competitiveness seems to be assuaged just a tad.

From a teaching standpoint, the results were most encouraging. From the standpoint of someone who has hired and trained lawyers in a past life, my reflections are more based on what the students are faced with if they are producing “product” for English speaking attorneys. I feel that with further work in the target language, and continuing this type of testing/training, there is a real potential for useful production from learners that more “straight laced” practicing attorneys might appreciate.

Krois – Linder & Translegal, International Legal English, Cambridge Univ. Press, 2006.

Lin, Benedict, Asian EFL Journal, v. 8, i. 3, a. 11, “Genre-based Teaching and Vygotskian Principles in EFL: The case of a University Writing Course.” 2006.

Black’s Law Dictionary, 8th Edition, pg. 8. 2007.

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