Combating Professional Error in Bankruptcy Analysis Through the Design and Use of Decision Trees in Clinical Pedagogy
91 St. John's Law Review (2017 Forthcoming)
60 Pages Posted: 7 Aug 2017
Date Written: August 4, 2017
The author’s thesis is that the use of decision trees like other modern technologies can be used to enhance the teaching of analytical skills in bankruptcy cases in the clinical setting through a hands-on approach that allows users to visualize the questions, the potential responses, and the citations of legal authority in a logical sequence. Adapting new technologies to improve the practice of law and better serve clients is a time-honored tradition. Introducing students to technology and instructing on its use as an analytical tool is both practical and prudent.
The proposed use of a decision tree is consistent with traditional law school training. Legal analysis involves gathering information and analyzing its significance. The information may include documents, tangible objects and testimony. The process requires the attorney to ask one question at a time, and based on the possible answers to that question, pose the next question in a sequence of questions designed to lead to a conclusion. That conclusion, whether legal or factual, may then form the basis of a recommendation to the client.
Clinical faculty, students and their clients benefit from the use of a human-generated decision tree that presents a guide towards an optimal recommendation regarding whether to file chapter 7 consumer bankruptcy. The uses and benefits of decision trees in the clinical setting include protection of clients from injury through professional error, attorney training regarding critical issues in legal analysis, assistance of clinical faculty in supervision, improvement of risk management, promotion of access to justice, fostering judicial economy, and rehabilitating and reclaiming the professional image of lawyers. The design of the prototype includes the questions to be posed, the universe of responses, and hypertext links to the legal authority that pertains to the question. The user’s ability to analyze an issue is confirmed or corrected by the decision tree, simultaneously teaching the student and protecting the client.
Like Langdell’s case method and other law teaching methods, this new teaching method may be controversial. However, as legal education embraces technological innovation, decision trees help clinical students hone their analytical skills while reducing risk to clients.
This article will address the positive impact of using the decision tree model in four parts. Part I will provide a historical overview of the evolution of legal education and the profession’s call for more experiential education, both generally and specifically, through clinical training and the use of technology. This section will provide context and set forth the thesis that the use of decision trees in the clinical setting is the natural culmination of the legal academy’s goals of teaching analytical skills, preparing graduates for practice, and incorporating new technology into the practice of law.
Part II will describe the legal malpractice problem in the United States, and furnish the statistical data that serves as a call to arms in an attack on the epidemic of preventable malpractice. This section focuses on the major categories of malpractice claims by area of practice, firm size, disposition of claims, types of alleged error, defense expenses paid, indemnity dollars paid to claimant, and time interval from date of error to closing of claim file. The section shows how the decision tree technology can reduce professional error and, thus, exposure for professional liability.
Part III will examine the other uses and benefits of the decision tree in clinical pedagogy and show how the use of a decision tree can indoctrinate students in the law, assist in the supervision of students, improve risk management, promote access to justice, foster judicial economy, and help reclaim the image of lawyers as respected professionals.
Part IV will highlight the steps in the design and construction of a specialized decision tree, illustrating the functioning of the system. It will provide an example of the hands-on approach of the decision tree that allows users to visualize the questions, potential responses, and citations of authority in a logical sequence.
Keywords: 'decision tree" "rule-based system" bankruptcy pedagogy "legal malpractice"
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