HKU Conference Slides

Paul Maharg
Conference on Experiential Learning and
Innovation in Legal Education
HKU Faculty of Law
http://paulmaharg.com/slides
‘Complicitous and contestatory’: The
hermeneutics of legal education

preview
1. The hermeneutic base to legal education
2. Case study 1: The Enlightenment shift in Scots legal education
3. Case study 2: The theoretical shifts in digital education within
legal education:
a. Transactional learning
b. Extended CHAT theory
c. Diegetic learning
4. Case study 3: The interdisciplinary shift – Simulated Clients
5. Implications for future law school educational practices
Slides available at: http://paulmaharg.com/slides 1
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

2
Edinburgh University online teaching manifesto
https://onlineteachingmanifesto.wordpress.com/

The hermeneutic base to legal education
‘Aesthetics matter: interface design shapes learning’
Edinburgh University School of Education,

hermeneutics?
• ‘our understanding of the nature of texts and how we interpret
and use them’ (Jasper 2004, 1)
• Eg ‘it is pretty clear that the author of Matthew’s Gospel is
reading and interpreting the Gospel of Mark and adapting it for
his own theological purposes’ (ibid, 2)
• Eg more widely, how writers interpret each other. Yeats’ relation
to Shelley, and Heaney’s relation to Yeats’ political poetry, and
use of ancient & contemporary Irish history. Complicitous?
Contestatory? Or take a clinamen, a creative swerve around the
powerful predecessor (Harold Bloom)?
• Hermeneutics ‘is about the most fundamental ways in which we
perceive the world, think and understand […] and legitimate the
claims we make to know the truth’ (Jasper 2004, 3)
• There are no innocent readings: all are motivated, replete with
intentionalities, memories, expectations, desires.
• It is a set of practices and understandings that are bound by
cultural and historical context.
4

what are the hermeneutics of legal
education?
• How we read our educations, how we understand different
traditions of legal education against each other
• How in a degree curriculum, a syllabus, a
lecture/seminar/workshop we read the parts up to the whole
and the whole down to the parts
• How academic degree learnings integrate or not with
professional learnings
• How we compose in report genres for regulatory bodies; how we
REF-write our legal education research, how we disorganize it for
ourselves and others
• How we interpret affect, body, rationality, gender, spirit,
indigeneity, the meaning of land and species, cultural narratives,
sociolegal, anthropological, historiographical research in our
constructions of justice, law & learning
5

eg the hermeneutics of assessment
‘Assessment is an act of interpretation, not just
measurement’
6

Technical model of learning Professional model of learning
The only learning worth evaluating can be seen as
behavioural changes.
Worthwhile learning is often personal, obscure and private.
Only some learnings appear as behavioural changes.
Everything that exists, exists in some quantity, and therefore
can be counted and measured.
Many things that exist are not externally verifiable.
The teacher-selected goals are the important ones, therefore
the evaluated ones.
Both teacher- and student-selected goals are important, as is
learning attained without goals.
Comparing behaviours to some objectively held criteria or
comparing to the progress of other students determines how
well something is learned.
Educative learning cannot be rated on a scale. Most learning
cannot be compared either to some "objectively" conceived
criteria or to the progress of other students.
The teacher-student relationship is hierarchical and the
teachers assign and rank students by how well they have met
specific objectives.
The teacher-student relationship is egalitarian. Learning
requires less of a process of trusting grades and more to
exploration among expert and novice learners, and thrives on
constructive criticism.
The quality of rigour of a course can be determined by how
well it helps its students meet the discipline requirements as
reflected by test scores, attainment of behavioural objectives,
and accreditation requirements, since these reflect the
agreed-upon discipline content.
well it helps students collect paradigm experiences, develop
insights, see patterns, find meanings in ideas and experiences,
explore creative modes of enquiry, examine assumptions,
form values and ethics in keeping with the moral ideal of the
caring scholar-clinician, respond to social needs, live fully and
advance the profession.
Bevis, E.O., Watson, J. (1990) Towards a Caring Curriculum: A New Pedagogy for Nursing, National League for Nursing, New York;
cited Maharg, P., Owen, M. (2007). Simulations, learning and the metaverse: changing cultures in legal education, Journal of
Information, Law, Technology. Special Issue on Law, Education, Technology, 1,
http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2007_1/maharg_owen

Technical model of learning Phenomenological model of learning
The only learning worth evaluating can be seen as
behavioural changes.
Worthwhile learning is often personal, obscure and private.
Only some learnings appear as behavioural changes.
Everything that exists, exists in some quantity, and therefore
can be counted and measured.
Many things that exist are not externally verifiable.
The teacher-selected goals are the important ones, therefore
the evaluated ones.
Both teacher- and student-selected goals are important, as is
learning attained without goals.
Comparing behaviours to some objectively held criteria or
comparing to the progress of other students determines how
well something is learned.
Educative learning cannot be rated on a scale. Most learning
cannot be compared either to some "objectively" conceived
criteria or to the progress of other students.
The teacher-student relationship is hierarchical and the
teachers assign and rank students by how well they have met
specific objectives.
The teacher-student relationship is egalitarian. Learning
requires less of a process of trusting grades and more to
exploration among expert and novice learners, and thrives on
constructive criticism.
well it helps its students meet the discipline requirements as
reflected by test scores, attainment of behavioural objectives,
and accreditation requirements, since these reflect the
agreed-upon discipline content.
well it helps students collect paradigm experiences, develop
insights, see patterns, find meanings in ideas and experiences,
explore creative modes of enquiry, examine assumptions,
form values and ethics in keeping with the moral ideal of the
caring scholar-clinician, respond to social needs, live fully and
advance the profession.
Bevis, E.O., Watson, J. (1990) Towards a Caring Curriculum: A New Pedagogy for Nursing, National League for Nursing, New York;
cited Maharg, P., Owen, M. (2007). Simulations, learning and the metaverse: changing cultures in legal education, Journal of
Information, Law, Technology. Special Issue on Law, Education, Technology, 1,
http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2007_1/maharg_owen

causation & context in 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 critical knowledge
5 sits in strongly contested
relations between practice &
academy
problematic, because content & forms of academic
assessments can’t transfer well to professional
learning and formation of identity

are law schools complicitous?
contestatory?
‘Of particular interest to [sociolinguists] is Gidden's insistence that
alongside political, economic and legal institutions there are
linguistic and rhetorical rules and resources which are also
institutions. Among these he instances ‘symbolic orders, or modes of
discourse, and patterns of communication’. […] My attempt to
address some of the wider issues […is…] both complicitous and
contestatory’.
Swales, John M. (1993). Genre and engagement. Revue Belge de Philologie et
D’Histoire, 71: 687-698. Available at: https://core.ac.uk/download/pdf/3146180.pdf
• We can support neoliberalist tendencies in legal education or we
can educate ethically and transformationally. But we do both.
• We can suppress student agency or liberate it. We do both.
• We can ignore / suppress traditions, cultures, or enhance &
(re-)use them. Do we do both?
10

Case study 1:
Scots legal education – the Enlightenment shift
‘Online teaching need not be complicit with the
instrumentalization of education’

signature pedagogies
(Lee Shulman 2005)
Surface
structure
• Observable,
behavioural
features
Tacit structure
• Values and
dispositions that
the behaviour
implicitly models
Deep structure
• Underlying
intentions,
rationale or
theory that the
behaviour models
Shadow
structure
• The absent
pedagogy that is,
or is only weakly,
engaged
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

Scots Renaissance > Enlightenment
• Earlier seventeenth century educational practices
tended to be highly prescriptive, and emphasised note
taking, rote learning and memorization of principle
and case.
• These were derived in part from scholastic models
stemming from Renaissance interpretation of classical
rhetorical models. (Cairns 1991)
• In the eighteenth century enlightenment, however,
educators drew upon new models of rhetoric and
education. Adam Smith (Lectures on Jurisprudence),
Lord Kames (Introduction to the Art of Thinking), John
Millar, Francis Hutcheson and others focused on
reasoning, and moral and ethical analysis.
13

• Smith’s Lectures on Rhetoric and Belles Lettres took a modern
turn, for example, eschewing the conventional approach to
rhetoric as comprising forms of persuasion, and defining it as
communication in most of its contemporary social forms (Smith
1762-63/1985, i.133).
• He also followed the precepts of Henry Hume, Lord Kames, an
unjustly neglected figure in the history of legal education in these
isles. Kames’ emphasis on reasoning in one text (Home, 1764)
was balanced in another that focused on the development of
'sensibility’ in legal education, a unique approach that remains to
this day still a subaltern focus of study in legal education (Home,
1781).
14

hermeneutic lessons…
• Modernising the law school, then as now, is
less of an ever-present participle
• It’s more of a series of highly local responses
to both local and broader shifts in social,
intellectual and cultural conditions around law
and the activity of learning the law.
• These responses are saturated in history and
culture.
15

Case study 2:
The theoretical shifts in digital education within
legal education
‘We should attend to the materialities of digital education.
The social isn’t the whole story’

1. 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
(Maharg 2007)
SIMulated Professional Learning Environment (SIMPLE) enables
students to engage in online simulations of professional practice. Its
special pedagogy is based on transactional learning.
17

2. extended CHAT framework
(Engeström)
18
Barton, McKellar, Maharg 2007.

3. diegetic learning
• Diegesis: narrative or plot in literature; used in
film studies to depict the world inside the film
• Also describes the story or immersive world of
a game or sim, and focuses on:
– Presentation of objects & environments
– Levels of immersion, fidelity, liminality,
interactivity, pacing, fore/background, POV,
use of time, landscape, sound, objects.
19

diegetic learning – by disruption
20

21https://tldr.legal/home.html

22

23

Case study 3:
The interdisciplinary shift – Simulated Clients
‘Online courses are prone to cultures of surveillance. Visibility
is a pedagogic and ethical issue ’

our hypothesis back in 2005
With proper training and carefully designed assessment
procedures, Standardised or Simulated Clients (SCs)
could assess important aspects of client interviewing
with validity and reliability comparable to assessment
by law teachers.

aims
• develop a practical and cost-effective method to
assess the effectiveness of lawyer-client
communication which correlates assessment with
the degree of client satisfaction & confidence.
• ie answer the following questions…
1.Is our current system of teaching and assessing
interviewing skills sufficiently reliable and valid?
2.Can the Simulated Patient method be translated
successfully to the legal domain?
3.Is the method of Simulated Client training and
assessment more reliable, valid and cost-effective
than the current system at the Glasgow Graduate
School of Law (GGSL)?

results from the GGSL pilot
Questions Results
1 Is our current system of teaching and assessing interviewing skills
sufficiently
1. reliable?
2. valid?
1. No
2. No
2 Can the Simulated Patient method be translated successfully to
the legal domain? Yes
3 Is the method of Simulated Client training and assessment more
1. reliable,
2. valid
3. cost-effective
than the current system?
1. Yes
2. Yes
3. Yes

independent studies…
• ‘In focus groups, members of the profession
and alumni said they believe that students
who graduate from the program [at UNH]
are a step ahead of new law school graduates;
• When evaluated based on simulated client interviews,
students in the program outperformed lawyers who had been
admitted to practice within the last two years; and
• The only significant predictor of simulated client interview
performance was whether or not the interviewer participated
in the Daniel Webster Scholar Honors Program. Neither LSAT
scores nor class rank was significantly predictive of
interview performance’ (my emphasis) 28

what changed for us…?
• We made what the client thinks important in the most
salient way for the student: an 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 focus the assessment on aspects we believe can be
accurately evaluated by non-lawyers
– We focus the assessment on initial interview (which has
been extended at one centre to an advice-giving second
interview)
• This has changed the way we enable students, trainees and
lawyers to learn interviewing & client-facing ethical
behaviour

eg assessment criterion 2 of eight
2. I felt the student lawyer listened to me.
This item is designed to assess the degree to which the lawyer can listen
carefully to you. These criteria focus especially on the early part of the
meeting when the client should be encouraged to tell their story and
concerns in their own words. This entails active listening – where it is
necessary for the interview structure or the lawyer’s understanding of
your narrative. The lawyer will not interrupt, cut you off, talk over you or
rush you in conversation. The lawyer reacts to your responses
appropriately. The lawyer may take notes where appropriate, but if the
lawyer does so, the lawyer should not lose much eye contact with you. To
some extent in this item we are concerned with what the lawyer does not
do that facilitates the interview.
30

1 2 3 4 5
Lawyer prevents
you from talking
by interrupting,
cutting off, talking
over, rushing you.
Takes over the
conversation
prematurely as if
the lawyer
already knows all
the answers.
Lawyer limits
your opportunity
to talk by
interrupting,
cutting you off,
etc.
You are allowed
to answer specific
questions but are
not allowed to
expand on topics.
Lawyer rarely
interrupts or cuts
off or rushes you.
The lawyer reacts
to your responses
appropriately in
order to allow
you to tell your
story. More
interested in
notes taken than
in eye-contact
with you.
The lawyer is
clearly listening
closely to you.
If the lawyer
interrupts, it is
only to assist you
in telling the
story more
effectively.
Lawyer provides
opportunities for
you to lead the
discussion where
appropriate.
Good eye contact
and non-verbal
clues.
The lawyer is an
excellent listener
and speaks only
when it is clearly
helpful to you
telling your story.
Lawyer uses
silence and other
non-verbal
facilitators to give
you an
opportunity to
expand.
Excellent eye
contact and non-
verbal cues.
31

1 2 3 4 5
Lawyer prevents
you from talking
by interrupting,
cutting off, talking
over, rushing you.
Takes over the
conversation
prematurely as if
the lawyer
already knows all
the answers.
Lawyer limits
your opportunity
to talk by
interrupting,
cutting you off,
etc.
You are allowed
to answer
specific questions
but are not
allowed to
expand on topics.
Lawyer rarely
interrupts or cuts
off or rushes you.
The lawyer reacts
to your
responses
appropriately in
order to allow
you to tell your
story. More
interested in
notes taken than
in eye-contact
with you.
The lawyer is
clearly listening
closely to you.
If the lawyer
interrupts, it is
only to assist you
in telling the
story more
effectively.
Lawyer provides
opportunities for
you to lead the
discussion where
appropriate.
Good eye contact
and non-verbal
clues.
The lawyer is an
excellent listener
and speaks only
when it is clearly
helpful to your
telling your story.
Lawyer uses
silence and other
non-verbal
facilitators to
give you an
opportunity to
expand.
Excellent eye
contact and non-
verbal cues.
32

33

current status of SCI
University of Strathclyde Law School WS (Writers to the Signet) Society,
Edinburgh
University of New Hampshire Law School The Australian National University
College of Law
Northumbria University Law School Kwansei Gakuin University Law School
(Osaka)
SRA – Qualifying Lawyer Transfer
Scheme
Law Society of Ireland
Hong Kong University Faculty of Law Flinders University Law School
The Chinese University of Hong Kong
Faculty of Law
National Centre for Skills in Social Care,
London
Nottingham Trent University Law School Osgoode Hall Law School

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?
12. F2f sims + digital platform + AR: a new sim design.

SCs @ Osgoode
• Last year, SCs were recruited, trained
and used with 290 students in Shelley
Kierstead’s first year course, Legal Method
• Excellent interim feedback:
– 92.6% thought the interview experience authentic or very authentic.
– 95.5% thought the clients realistic or very realistic in conveying their
concerns.
– 93.5% thought the experience useful or very useful in preparing them
for real client interviews.
– 97.6% thought that the use of simulated clients was more beneficial to
their learning than practising only with other students

representative comments…
In your judgment was this a worthwhile learning opportunity?
• One of my favourite and most worthwhile opportunities all year
• Great opportunity! […] good low stress experience
• Yes! I loved the feedback that the simulated client gave me. She was
honest (but also very kind). I haven’t viewed my video yet , but I’m sure
it will be extremely useful to go back and review my
questions/demeanour/etc.
• Helpful feedback
• I would love to get more opportunities to do this
• Yes, I feel better prepared and the feedback I got was very reassuring
• I really enjoyed this experience and would recommend that it be
implemented into the legal process course curriculum
• The feedback was splendid I see where I need to improve and at the
same time I was made aware of my strengths that I need to hone
• I feel like it was a worthwhile and that that we should have more
opportunities to participate in similar activities
37

more information…
1. Websites:
1. See Simulated Client Initiative, http://zeugma.typepad.com/sci
2. these slides @ http://paulmaharg.com.
2. Barton, K., Cunningham, C.D., Jones, G.T., Maharg, P. (2006). Valuing what
clients think: standardized clients and the assessment of communicative
competence. Clinical Law Review, 13, 1, 1-65.
3. Maharg, P. (2007). Transforming Legal Education: Learning and Teaching
the Law in the Early Twenty-first Century. Aldershot, Ashgate Publishing,
chapter 2, 64-67.
4. Daniel Webster Scholar Honors Program:
https://law.unh.edu/sites/default/files/media/dwsonepager2016update.p
df
5. Barton, K., Garvey, J.B., Maharg (2013). ‘You are here’: learning law,
practice and professionalism in the academy. In Bankowski, Z., Maharg, P.
del Mar, M., editors, The Arts and the Legal Academy. Beyond Text in
Legal Education, vol 1. Routledge.

5. Implications for future law school
educational practices
‘Aesthetics matter: interface design shapes learning’

1. Organisation to create weak boundaries, strong
presence through resource-based, integrated
learning networks, with open access (open
courseware initiatives, etc)
2. Focus not on transmissive static content but in part
on web-based, aggregated content in part created by
students and re-usable as open educational resources
(OERs)
3. Learning as integrated understanding & capturable
conversation, just-in-time learning
4. Assessment of situated learning
5. Developing student agency
Changing the hermeneutic focus …

… & by working with regulators

references
Barton, K., McKellar, P., Maharg, P. (2007). Authentic fictions: simulation, professionalism and legal learning,
Clinical Law Review, 14, 1, 143-93
Cairns, J. (1991). Rhetoric, language, and Roman law: Legal education and improvement in eighteenth- century
Scotland. Law and History Review, 9(1), 31–58.
Cairns, J. (1992). The Influence of Smith’s Jurisprudence on Legal Education in Scotland. In P. Jones & A. S. Skinner
(Eds.), Adam Smith Reviewed (pp. 168–189). Edinburgh: Edinburgh University Press.
Engeström, Y. Centre for Research on Activity, Learning & Development.
https://www.helsinki.fi/en/researchgroups/center-for-research-on-activity-development-and-learning
Home, H., Lord Kames. (1764). Introduction to the Art of Thinking. Enlarged with Additional Maxims and
Illustrations. Edinburgh.
Home, H., Lord Kames. (1781). Loose Hints upon Education, Chiefly Concerning the Culture of the Heart. Edinburgh.
McKellar, P., Maharg, P. (2005). Virtual learning environments: the alternative to the box under the bed, The Law
Teacher, ‘Special Edition on ICT’, 39, 1, 43-56
Maharg, P. (2007). Transforming Legal Education: Learning and Teaching the Law in the Early Twenty-first Century.
Ashgate Publishing, Farnham, Surrey. See chapter nine: ‘Multimedia and the docuverse of law: learning
and the representation of knowledge’.
de Freitas, S., Maharg, P., eds (2011). Digital Games and Learning. Bloomsbury, London.
Maharg, P. (2014). Convergence and fragmentation: legal research, legal informatics and legal education.
European Journal of Law and Technology, 5, 3. Available at: http://ejlt.org/index.php/ejlt/.
Maharg, P. (2016). Webcasts and podcasts: digital designs and learning. Faculty seminar, Chinese University of
Hong Kong, June 2016. Available at: http://paulmaharg.com/slides
Maharg P. (2017). Multimedia learning, 2002-2018: A case study across a century of digital learning. Faculty
seminar, Osgoode Hall Law School, April 2018. Available at: http://paulmaharg.com/slides
Shulman, L. S. (2005). Signature pedagogies in the professions. Daedalus, 134(3), 52–59
Smith, A. (1762). Lectures on Rhetoric and Belles Lettres. (J. C. Bryce, Ed.) (New Ed edition). Indianapolis: Liberty
Fund Inc.
42

two series to remember, if you’re publishing…
43
Emerging Legal Education
Meera Deo
Beth Mertz

44
Digital Games, Simulations and Learning
Sara de Freitas

also upcoming…
16.6.17 Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
45
Maharg, P., Mertz, E., Taylor, A. (2021, contracted).
Handbook on Legal Education. Routledge. Authors being
contracted…
Assessment and Legal Education: Critical Perspectives on
the Scholarship of Learning and Assessment in Law
(2019-22), five volumes, first volume published on
England (Bone & Maharg). Four more on USA, Canada,
Australia, and smaller jurisdictions: Singapore, Hong
Kong, Ireland. Edited by jurisdictional editors and series
editorial team.

Email:pmaharg@osgoode.yorku.ca
Web: paulmaharg.com
Slides: paulmaharg.com/slides

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