It is often assumed that the law student has adequate, even superior, communication skills, and that there is little that professors and instructors need to do to enhance these skills. While a large number of law students are indeed good communicators, they are expected to go well beyond good communication to master the art of persuasive and critical communication. Often, they are expected to provide critical analyses on not just what the law is, but what the law ought to be. A fairly good communicator may well be able to perform the descriptive task of what the law is, but stumble over the prescriptive element of what changes are required to make the law more just.
The important task, then, is to instil a curiosity in the law student to go behind a particular piece of legislation or court case to identify the stated objectives of the rule in question so as to prescribe the changes that may be needed. To do this, they must be able to discern the societal issue, problem or ‘mischief’ that a particular rule is designed to address. In turn, these are very often influenced by varying social, political, moral and cultural nuances that impact upon the issue at hand. Faced with the differing and often conflicting policy choices that these forces throw up, the student will then be able to prescribe a set of solutions that provide the fairest legal response suitable both for the place and the time. Questions like whether only women (and not men) should get court protection against spousal abuse, whether a killer who is provoked to kill should receive a lighter sentence, or when a party to a contract should be able to avoid her obligations under that contract can all be addressed only through an appreciation of the surrounding policy imperatives that may differ across time, or across different societies for that matter.
How then do we get the student to articulate such ideas effectively and to appreciate the surrounding nuances? One way could be to have students engage in more simulations of cross-border/cross-cultural dispute resolution in class. We already do this amply in the Faculty of Law in the form of mock trials (“moot courts”), but perhaps we can replicate more of this in the classroom. The aim is to sensitise students to the practical problems faced by the parties to the dispute, and to have them apply theoretical constructs to the real world. In this regard, it is important not to present the facts or issues explicitly to the students, but to have them infer or deduce these from various sources.
Hence, the dispute could typically be presented in the form of a set of correspondence between the disputing parties, and students are expected to identify (or infer) the issues of contention from the correspondence, documentation and e-mail exchanges as well as any relevant surrounding circumstances. In the process, students are required to “role-play” and to represent the various stakeholders. In terms of displaying the persuasiveness of their arguments, students would be expected to present their arguments both in written form (in what is often referred to as a “brief” or “memorial” that other students can be assigned to critique) and in oral form. Again, while the law school has in place trial simulation practices like moot court sessions, it may be beneficial to replicate these in regular classes to better illustrate the issues at hand.
The setting need not even take the form of a mock trial or a dispute. I have used the following simulation in my Aviation Law and Policy course: the students are assigned as government negotiators for several countries, some of which are in favour of (and some against) the process of further liberalisation of the airline industry (i.e. letting foreign airlines come in and take up market share at the expense of local airlines). The scenario takes the form of a journalist or a consultant who arrives to interview them for their stands, with a view to preparing an influential policy document or article. Those in favour of liberalisation tend to be from countries with stronger airlines (such as Singapore), and must thus attempt to put forward their views without sounding like they are facilitating a “grab” for their airlines in lucrative markets such as Indonesia. Quite clearly, an appreciation of geopolitical realities and sensitivities is in order! On the other hand, those resisting liberalisation would try to take a balanced view without sounding overtly protectionistic (even if that was their instinct) in an increasingly trade-dependent and consumer-oriented world. There is thus a lesson on nuanced advocacy, diplomacy and negotiation, which is what really happens between countries after all.
In this manner, it is hoped that the student is suitably prepared for tasks that do not only entail mastery of the facts in a dispute, but also of the communication and articulation of persuasive arguments that take into consideration relevant political, social and even cultural factors.