This document summarizes a conference on assessment in legal education. It discusses:
1. Current reforms in legal education and the focus on assessment. Reports have highlighted problems with traditional assessment and its lack of relevance to practice.
2. Recommendations from the LETR report to improve assessment, including assessing skills more realistically through client communication assessments.
3. Adapting client-centered assessment methods from medical education, such as using standardized clients to assess interviewing skills. Several law schools and professional organizations now use standardized clients. Research finds they provide reliable and valid assessment that impacts student learning.
4. The potential of digital simulations and online assessments to provide authentic practice-based assessments of transactional skills
Slides presented by John Garvey (U of New Hampshire) and Paul Maharg (Northumbria U) to Future Ed 2: Making Global Lawyers for the 21st Century, Harvard Law School, October 2010.
Slides used in a session on the SCI during the Legal Ethics Teaching Workshop, City University, October 2011, hosted by Clark Cunningham and Nigel Duncan.
Shared space: regulation, technology and legal education in a global context
Professor Paul Maharg
Australian National University College of Law
Abstract
The LETR Report on legal services education and training (LSET), published in June 2013, is the most recent of a series of reports dealing with legal education in England and Wales. Many of these reports do not deal directly with technology theory and use in legal education, though it is the case that the use of technology has increased substantially in recent decades. This is a pattern that is evident in reports in most other common law jurisdictions. LETR does have a position on technology use and theory, however, and it positions itself in this regard against other reports in England and Wales, and those from other jurisdictions, notably those in the USA.
In this paper I shall set out that position and contrast it with regulatory statements on technology and legal education in England, Australia and the USA. Based on a review not just of recent practical technological implementations but of the theoretical educational and regulatory literatures, I shall argue that the concept of ‘shared space’ outlined in the Report is a valuable tool for the development of technology in education and for the direction of educational theory, but most of all for the development of regulation of technology in legal education at every level.
A discussion of an innovative simulation is really a discussion about what legal education can be. The shift in pedagogical focus in simulation and other moves from student-as-spectator to student-as-creator forms a new learning space, similar to that opened up by art objects, and by dramatic and musical performance. In a simulation environment such as SIMPLE, there is no beyond text because there is no entirely bounded docuverse called text. Text and all other forms of representation overlap, palimpsest-like, in our consciousness of the world. In much the same way, play itself in MUVEs and online communities is permeable, interweaves with non-play. Professionalism in legal communities is similarly porous with the personal values and attitudes of learners and professionals. What we need to do is to create the opportunities, the clearings in our overcrowded, often incoherent curricula, for the values of play, and the play of virtues to be encouraged, valued and enacted.
Presentation to the Legal Education and Scholarship: Past Present and Future Workshop in Honour of William Twining, 20.10.10. IALS, University of London.
Slides presented by John Garvey (U of New Hampshire) and Paul Maharg (Northumbria U) to Future Ed 2: Making Global Lawyers for the 21st Century, Harvard Law School, October 2010.
Slides used in a session on the SCI during the Legal Ethics Teaching Workshop, City University, October 2011, hosted by Clark Cunningham and Nigel Duncan.
Shared space: regulation, technology and legal education in a global context
Professor Paul Maharg
Australian National University College of Law
Abstract
The LETR Report on legal services education and training (LSET), published in June 2013, is the most recent of a series of reports dealing with legal education in England and Wales. Many of these reports do not deal directly with technology theory and use in legal education, though it is the case that the use of technology has increased substantially in recent decades. This is a pattern that is evident in reports in most other common law jurisdictions. LETR does have a position on technology use and theory, however, and it positions itself in this regard against other reports in England and Wales, and those from other jurisdictions, notably those in the USA.
In this paper I shall set out that position and contrast it with regulatory statements on technology and legal education in England, Australia and the USA. Based on a review not just of recent practical technological implementations but of the theoretical educational and regulatory literatures, I shall argue that the concept of ‘shared space’ outlined in the Report is a valuable tool for the development of technology in education and for the direction of educational theory, but most of all for the development of regulation of technology in legal education at every level.
A discussion of an innovative simulation is really a discussion about what legal education can be. The shift in pedagogical focus in simulation and other moves from student-as-spectator to student-as-creator forms a new learning space, similar to that opened up by art objects, and by dramatic and musical performance. In a simulation environment such as SIMPLE, there is no beyond text because there is no entirely bounded docuverse called text. Text and all other forms of representation overlap, palimpsest-like, in our consciousness of the world. In much the same way, play itself in MUVEs and online communities is permeable, interweaves with non-play. Professionalism in legal communities is similarly porous with the personal values and attitudes of learners and professionals. What we need to do is to create the opportunities, the clearings in our overcrowded, often incoherent curricula, for the values of play, and the play of virtues to be encouraged, valued and enacted.
Presentation to the Legal Education and Scholarship: Past Present and Future Workshop in Honour of William Twining, 20.10.10. IALS, University of London.
Seminar on the use of digital resources, particularly webcasts & podcasts, in legal education, and their effects on the design of learning and teaching.
Seminar for LERN, Legal Education Research Network, UK, @ IALS, 28 Jan 2015, on the use of new media tools and the need for digital research literacies in legal education research.
Slides based on the Editorial to a Special Issue on the subject published in The Law Teacher and edited by Maharg. Presented at the 2016 BILETA (British and Irish Law Education Technology Association) conference at the University of Hertfordshire.
Disintermediation is a concept well-understood in almost all industries. At its simplest, it refers to the process by which intermediaries in a supply chain are eliminated, most often by digital re-engineering of process and workflow. It can often result in streamlined processes that appear more customer-focused. It can also result in the destruction of almost entire industries and occupations, and the re-design of almost every aspect of customer and client-facing activity. To date, HE and legal education in particular has not given much attention to the process. In this article I explore some of the theory that has been constructed around the concept in other industries. I then examine some of the consequences that disintermediation is having upon our teaching and learning, and on our research on legal education, as part of the general landscape of digital media churn; evaluate its effects (particularly with regard to regulation) and show how we might use aspects of it in one version of the future of legal education.
Presentation at HEA Social Sciences learning and teaching summit 'Engaging legal education'.
As part of the Higher Education Academy’s commitment to support strategic development within disciplines, this summit event provided the opportunity to bring together an expert audience to discuss and plan actions on a key area of our work.
This presentation forms part of a blog post which can be accessed via: http://bit.ly/1iv2kYu
For further details of HEA Social Sciences work relating to 'Supporting the future of legal education' please see http://bit.ly/1ezsxUf
Presentation by Dr. Don Olcott, Jr., Global Consultant, EDEN NAP SC member, EDEN Council of Fellows Vice-Chair, at the 2019 European Distance Learning Week's third-day webinar on "Future perspective in open routes: the quality and assessment dimension?" - 13 November 2019
Recording of the discussion is available: https://eden-online.adobeconnect.com/p8i31ynv7v28/ & https://www.youtube.com/watch?v=7yb8ekFP3ps
Slides from the presentation given by Paul Maharg (University of Northumbria) at the joint conference Open Educational Resources in the disciplines in October 2010.
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Surfacing the hidden curriculum: Levelling the playing field for studentsLearningandTeaching
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In these slides, Sharon Aris and Richard Ingold take viewers through the underlying factors that impact on students’ success in the classroom and in industry. Sharon looks at how knowledge is valued and practiced in industry to reveal how it can be made more explicit to students in their classroom and assessment work. Richard looks at how knowledge of language and writing conventions can impact students’ chances of success, and provide practical examples for supporting student writers.
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Of tails and dogs standards, standardisation and innovation in assessment
1. ALT Conference
Fifty years of assessment
Of tails and dogs:
Standards, standardisation and
innovation in assessment
Professor Paul Maharg Professor Julian Webb
2. 1. Legal education reform in the common law world
The extent of current activity
1. LETR and assessment
The problems and what our Report said
1. Challenging hegemonies
Why it’s difficult to change; how we can change
1. Adapting from other disciplines – client-centred assessment
Simulated clients
1. Learning from other jurisdictions – the future of digital sim assessment
Online digital sims
1. Extreme law schooling
NB: Slides available at http://paulmaharg.com/slides
preview
2
5. reform musical chairs
Law Society of Scotland (2006-09)
FLSC Task Force (2007-09)
LETR (2011-13) (phase 1)
ABA Task Force (2012-13)
CBA Legal Futures (2012-14)
LACC (Australia) (2014-??)
SCLE (Hong Kong) (2015?)
5
6. assessment
• Guess how many raised concerns about
– standards
– Relevance/currency of education and training to
practice
• Guess how many linked these explicitly to
assessment?
6
8. the problems
• Assessment culture: the ‘alternative medicine’ approach
– Most of its been around for years
– We can apply some fancy names and theories to it to give it legitimacy
– We think (some of) it does some good [or at least no harm]
– We like it [more than the other alternatives]
– More on the consequences of this later….
• Absence of much reliable research (weak evidence base)
– Small scale qualitative studies
– Under-/undefined success criteria
– Few longitudinal studies or follow-ups (recency effects and other biases)
– Few systematic attempts at replication or meta-analysis
8
10. the ‘solution(s)’
Not really, but:
4.145 Assessment is at the heart of LSET since it provides the key means of
demonstrating that outcomes have been met. LSET requires more robust and more
creative approaches to assessment. The report therefore makes recommendations to
ensure that legal values are assessed pervasively, and legal writing and critical thinking
assessed discretely at the academic stage (or its equivalent). It proposes ways in which
client communication skills could be assessed more realistically; it also suggests that
the greater integration of classroom and workplace learning would increase the
reliability and practice validity of the assessment of professional skills.
10
12. conventional teaching & assessment
If learning … then assessment is often…
1 Is teacher-focused Teacher-centred, not learner-centred.
2 Follows a transmission model
of education
Focused only on what’s supposed to have arrived /
been delivered
3 Focuses only on the individual Individual, alienating, where collaborative, peer-
review or self-review can’t take place
4 Consists of monolithic &
substantive law content
Lacking interdisciplinarity, with little assessment of
skills, values, attitudes as well as knowledge
5 Sits in the contested relations
between practice & academy
Problematic, because content & forms of academic
assessments can’t transfer well to professional
learning and formation of identity
13. Sullivan, W.M., Colby, A., Wegner, J.W., Bond, L.,
Shulman, L.S. (2007) Educating Lawyers.
Preparation for the Profession of Law, Jossey-Bass,
p. 24
13
16. standardised client initiative
We train lay people to simulate clients, and do two things
well:
– Discuss their case with the (trainee) lawyer in a
way that is standard across the cohort of
students/lawyers that the SC meets
– Assess the client-facing skills of the lawyer.
16
17. evidence from medical education
• Large body of research literature criticised oral exams beginning in
1960s
• ‘A test that is not reliable cannot be valid’ e.g. NBME (USA) studies
exams of 10,000 medical examiners over 3 years and found
correlations between 2 examiners in one encounter <0.25
• Use of Standardised Patients since 1963
• Now used in high-stakes competency examination for licensure in USA
and Canada
• Extensively used in final exam ‘OSCE’ stations in UK medical schools
17
18. SCI project aims
• develop a practical and cost-effective method to assess the effectiveness
of lawyer-client communication that correlates assessment with the
degree of client satisfaction.
• ie answer the following questions…
– Is our current system of teaching and assessing interviewing skills
sufficiently reliable and valid?
– Can the Standardised Patient method be translated successfully to the
legal domain?
– Is the method of Standardised Client training and assessment cost-
effective?
– Is the method of Standardised Client training and assessment more
reliable, valid and cost-effective than the current system?
18
19. SC project conclusions…
• Use of SCs is as reliable and valid as tutor assessments
• We make what the client thinks important in the most salient way for the
student: a high-stakes assessment where most of the grade is given by the
client
• We did not conclude that all aspects of client interviewing can be assessed by
SCs
– We focused the assessment instrument on aspects we believe could be
accurately evaluated by non-lawyers
– SCs are also trained to give feedback to students
• This has changed the way we enable students to learn interviewing…
Barton, K., Cunningham, C.D., Jones, G.T. and Maharg, P. (2006) What clients think:
standardized clients and the assessment of communicative competence, Clinical Law
Review, 13(1), pp. 1–65. 19
20. feasibility? cost? impact?
Feasible…?
• Very: lots of experience out there in at least 12 centres. Initial and
refresher training needed for SCs, but no high-maintenance.
Cost…?
• Training of SC trainer + SCs; payment of SCs.
• SC documentation is freely available under Creative Commons
Impact…?
• Big: on students, on ethical performance, practice of skills within
professional value contexts; formative and high-stakes assessment.
• Also on regulatory bodies, eg Law Society of Scotland, SRA
20
21. who uses SCs?
Strathclyde University Law School (DLP) WS Society (Edinburgh)
University of New Hampshire (Daniel
Webster Scholars programme)
The Australian National University
College of Law (GDLP)
Northumbria U Law School, LLB Kwansei Gakuin U Law School, Osaka
SRA (Qualifying Lawyers’ Transfer
Scheme, QLTS)
Law Society of Ireland (CPD)
Hong Kong University Faculty of Law
(PCLL)
University of Adelaide Law School (LLB)
The Chinese University of Hong Kong
Law School
National Skills Centre for Social Care,
London 21
22. who uses SCs?
Strathclyde University Law School (DLP) WS Society (Edinburgh)
University of New Hampshire (Daniel
Webster Scholars programme)
The Australian National University
College of Law (GDLP)
Northumbria U Law School, LLB Kwansei Gakuin U Law School, Osaka
SRA (Qualifying Lawyers’ Transfer
Scheme, QLTS)
Law Society of Ireland (CPD)
Hong Kong University Faculty of Law
(PCLL)
University of Adelaide Law School (LLB)
The Chinese University of Hong Kong
Law School
National Skills Centre for Social Care,
London 22
23. Daniel Webster Program
• Two-year Bar practicum
• Students educated in professional skills and judgment through simulated,
clinical and externship settings
• Exposure to numerous fields, including real estate, business, and litigation
is offered.
• Instead of a two-day bar exam, the programme provides a two-year,
comprehensive exam in conjunction with the training received.
• Students who complete the program are certified as having passed the
New Hampshire Bar examination, subject only to passing the Multistate
Professional Responsibility Examination (MPRE) and the New Hampshire
character and fitness requirements.
23
24. who uses SCs?
Strathclyde University Law School (DLP) WS Society (Edinburgh)
University of New Hampshire (Daniel
Webster Scholars programme)
The Australian National University
College of Law (GDLP)
Northumbria U Law School, LLB Kwansei Gakuin U Law School, Osaka
SRA (Qualifying Lawyers’ Transfer
Scheme, QLTS)
Law Society of Ireland (CPD)
Hong Kong University Faculty of Law
(PCLL)
University of Adelaide Law School (LLB)
The Chinese University of Hong Kong
Law School
National Skills Centre for Social Care,
London 24
25. QLTS assessment regime
Assessment consists of:
• The Multiple Choice Test (MCT)
• The Objective Structured Clinical Examination
(OSCE)
• The Technical Legal Skills Test (TLST)
25
26. OSCE
Tests the oral skills of interviewing and advocacy/oral presentation together
with the three content areas of:
– Business
– Civil and criminal litigation
– Property and probate
Components of the OSCE
Each candidate completes three stations in each content area:
• Station 1: Client interview and completion of attendance note
• Station 2: Client interview and completion of attendance note
• Station 3: Advocacy/oral presentation
26
27. test quality of simulated clients?
27
‘Overall the test quality is remarkably good for such a new set of assessment
procedures and challenging targets for a new high stakes assessment have
largely been met.’
Eileen Fry , Jenny Crewe & Richard Wakeford (2012) The Qualified Lawyers Transfer Scheme: innovative assessment
methodology and practice in a high stakes professional exam, The Law Teacher, 46:2, 132-145, p.144.
28. is it a valid & reliable assessment?
‘Assessment by standardised clients proved to be very reliable, with the six
standardised client assessments conducted for each candidate by a total of
45 different actors having an alpha coefficient of 0.81 and SEm of 5.07% in
OSCE #2.’
Eileen Fry , Jenny Crewe & Richard Wakeford (2012) The Qualified Lawyers Transfer Scheme: innovative
assessment methodology and practice in a high stakes professional exam, The Law Teacher, 46:2, 132-145,
p.144.
28
29. SCs: people as co-producers, co-
designers
The SC approach challenges:
1. Curriculum methods
2. Ethics of the client encounter
3. The cognitive poverty of conventional law school assessment
4. Law school as a self-regarding, monolithic construct
5. Law school categories of employment
6. The curricular isolation of clinic within law schools
7. Hollowed-out skills rhetoric
8. Conventional forms of regulation by regulatory bodies
9. The role of regulator, as encourager of innovation & radical reform…?
10. Disciplinary boundaries – what about a SC Unit that’s interdisciplinary?
11. Local jurisdictional practices: how might such a project work globally?
29
30. 5. Learning from other jurisdictions –
the future of digital sim
assessment
31. Transactional Learning
active learning
through performance in authentic transactions
involving reflection in & on learning,
deep collaborative learning, and
holistic or process learning,
with relevant professional assessment
that includes ethical standards
31
32. what are we assessing in simulation?
• Professionalism and ethical performance
• Skilled performance to benchmarked levels
• Substantive knowledge of law
• Procedural knowledge
• Many other categories of assessable experience
• Purpose of assessment:
– Formative (feedback and feedforward)
– Summative
Think of a social space where both workspace, learning space & assessment space co-exist,
eg, between master & apprentice.
32
33. how are we assessing in sims?
1. Discrete tasks, eg drafting, letter-writing, research
(Estate Planning transaction)
2. Whole file + performative skill (Personal Injury transaction)
3. Tasks + whole file (Property or Planning transaction)
4. Tasks + file + performative skill (Litigation transaction)
33
34. • Set context (or not: let student figure that out – the clearing in the
forest…)
• Set task (but in how much detail? Supported with templates?
Guidelines? Commented examples?)
• Design feedforward (but don’t do the task for students)
• Deadline a task (bearing all contextual factors in mind)
• Task completed (and sent by students to staff in role)
• Feedback on task (by staff in role)
• Debrief (either in role or out of role)
1. discrete tasks
34
35. • Holistic assessment of document chain
• Bodies of evidence generally, but can embed critical points of
assessment, eg report to client, speech plan, etc
• Preparation for performative skill, including overlap with
other skills – eg relation of legal research to professional
negotiation.
2. whole file + performative skill
35
36. • Specific tasks are the foreground, eg draft the completion
certificate…
• … but students must also complete entire file process. No
completion, no competence.
• Tasks may shadow tutorial work or precede tutorial work or
neither
• Quaere: How many attempts at each task?
3. tasks + whole file
36
37. • Most complex, most authentic and most demanding
• Potentially 1-3 plus more – eg performative skill can
be assessed in role.
4. tasks + whole file + performative skill
37
39. feasibility? cost? impact?
Feasible…?
• Yes: following the SIMPLE project, ANU Legal Workshop created a Virtual Office
Space (VOS) and other environments, and now runs an online Professional Practice
Course for over 1,000 students.
Cost…?
• Development of environment + sims; learning support for students
• Staff costs; training costs.
Impact…?
• Big: on students, on ethical performance, practice of skills within professional value
contexts; formative and high-stakes assessment; transactional learning; learning by
doing (Dewey)
39
41. new programme designs
• Eg p/g JD or LLB + PBL + online + lifelong learning:
– New 3 year curriculum: 1+2 (qualifying subjects) + 3 (Masters
options).
– Integration into clusters of traditionally separate subjects
– Focus on collaborative problem-solving using a PBL methodology
– Learning intellectual structures through problem immersion
– Fusing learning and immersive, integrative assessment
– Healing the academic / professional divide, in design and in new forms
of employment (adjuncts as trained PBL facilitators)
– Opening up choice of career pathways
– Possibility of global partnerships with other innovative PBL centres.
41
42. assessment?
Integrative assessments are essential:
•Exams that embed course elements
•Skills that fuse with knowledge items
•Integration of SCs and Transactional Learning
•Evaluation where formative becomes the new summative
•Ethics & social justice are threaded through an entire programme, via
problems & assessments
•Use of predictive data & analytics
•Use of blockchain technologies
42