Simulated Client workshop: Plenary wrap-up

by Paul Maharg on 16/08/2017

Final session…  I posed the last question set out in our programme: where to from here?  One participant answered it in an interestingly oblique way.  What about the model of the encounter, he said – is it all about an expert telling the student what he or she did wrong?  Surely there must be a negotiation and dialogue for there to be learning?  And isn’t it the case that the view that really matters is the view the students take of themselves and their performance?

Well, who could argue with that.  I recalled that our 2006 correlative study of simulated clients was a correlation not just between SCs and tutors and their assessments, but also of students and their self-assessment of their own performance.  And it was plain from the highly variable results that there was very little correlation between SC evaluation and student self-evaluation.  What this showed us was that while we had created a method of assessment that was new in legal education, and was a powerful way of embedding client experience in the assessment encounter, we still had a lot of work to do with students to align their self-assessment with the SCs’ evaluation of them.  Because of our success with training the SCs, we could dispense with tutor appraisals of student performance (except for fails and borderline cases).  But that third correlation, of student self-appraisal, was the one we really needed to crack.  Because if we can align student self-evaluations with SC evaluations, there’s less need for the SC, except as a calibration.  And sure, dialogue, negotiation, interior reflection, social discussions – these are all part of the learning experience, and there need to be spaces built around the method for them to flourish.

Another participant noted the that the SC method provided opportunities to practise across the years in a programme of study, and wondered about the effect that that might have on professional identity.  These were all good drivers for the method.  Even better drivers for the whole SCI would be money, in the form of grants.  When that was mentioned by a delegate there was universal agreement in the room.  Another delegate mentioned the need to have regulators with insight into the importance of the method, and how to enhance its use and its research; to which I would add that it’s our duty to educate our regulators on that issue.

We also need more educators involved (that’s probably you, dear reader).  And more SCs.  On that topic, a  delegate outlined a possible future where there was a company of SCs, SimClient Co, which provided interdisciplinary sim services to a whole range of disciplines.  Great idea.

Finally, AI entered our discursive field, an AI SC so human-like that it became indistinguishable from humans.  Why stop there?  What about AI lawyers?  I had a flashback: it reminded me of the Afterword to Transforming Legal Education, a decade old next month, with the second half given over to a Back in 2007 (internet time: 70 years ago…) I wrote the conclusion of Transforming Legal Education by drawing upon on Goethe’s resonant adaptation of the concept of elective affinities to describe the relationship between four critical educational concepts.  It was entitled, Afterword: Elective Affinities – Experience, Ethics, Technology, Collaboration, and ended with an attempt at futurology, a frankly hubristic description of legal education in 2047, then 40 years in the future.  There was a lot of sci-fi in it, with lengthy paratext in footnotes on how the future had come to be so wonderful (or awful, depending on your point of view).  I refer back to it occasionally in blog posts – this one from 2011, and this one from 2016.  The idea of an educative assistant is there, beyond the exo-cortices of augmented reality, and with human shape, one where there is, as Debra Nestel and Roger Kneebone point out of simulation approaches, reciprocal illumination, where roles are participative and mutually educative.

It was a good day – lots of discussion, fascinating insights and honest appraisals of the method.  My thanks to all speakers for their presentations.  All of them gave us inspiring examples to draw upon; and Debra Nestel’s keynote gave us legal educators a taste of the richness and sophistication of over half a century of healthcare literature on simulation.  By comparison with that, we are all at the start of the journey in our own discipline.

Slides and other resources will be up on the Simulated Client Initiative website.    I hope that after the third and final workshop in the series, to be held in Toronto next year, we can begin to pull together a publication which will mark the first 12 years or so of the SCI and the developing use of sims – the end of the beginning, as it were, and hopefully a springboard into the future development of simulated clients in legal education.

 

{ 2 comments… read them below or add one }

1 Anneka Ferguson August 18, 2017 at 00:42

Thank you for the wrap up of the day Paul. As I had to duck in and out I did miss some of the discussion opportunities. However, your reference to students ability to critique themselves accurately (whatever that means!) is an important skill to have. It reminds me of a powerful presentation by Margot Fenley a lecturer with the Victorian School of Performing Arts at the 2016 Symposium on Student Wellbeing Matters about the need to ensure that performing arts students are able to complete honest and accurate critiques of their own performances – and to own that critique – in order to guard against negative responses to bad/good reviews later on – i.e. the hypothesis being that if you can honestly critique your own performance and know you can do it, you can then decide whether the reviews you receive are fair or not and thus guards against experiencing negative consequences of these reviews (http://melbourne-cshe.unimelb.edu.au/research/research-projects/experience/enhancing-student-wellbeing/2016-symposium-student-wellbeing-matters) Whilst this example relates to performing arts, I see that there is a possible correlation here in relation to the practice of law. If you can critique your “performance” as a lawyer honestly and fairly, this can possibly guard against some of the inevitable negativity you will receive due to the nature of the job and/or provide opportunities for continuous improvement.

Secondly, I would make the observation that in some ways it would concern me greatly to see simulated clients professionalised and/or standardised, as my view is that the power of the simulated client is the authentic unpredictability. Accordingly it is a fine line to be drawn between an actor and a lay person who is encouraged to respond exactly how they would if faced with the kind of lawyer they are dealing with. Along this same line, it would concern me if such clients were utilised to assess the legal content as well as the client interview experience, as I think there is a real danger that by the ‘client’ knowing the law and the expected response they are to get from the scenario, the authenticity of the exercise is compromised in that the client may be tempted to ‘feed’ the information the student needs to them rather than to do what clients always do which is provide you with their story including all the non-legal bits that are important to them (and possibly withholding information unless explicitly asked).

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2 Paul Maharg August 18, 2017 at 13:22

Anneka – great comment, thanks for setting it out in detail. I love the analogy with the performing arts and entirely agree the point – so much so that it’s started another train of thought that will end up in another post, rather than clutter up this comment.

Your second point – ‘the power of the simulated client is the authentic unpredictability’ – is exactly right, too. Given that many of the law schools in the SCI use SCs to give feedback and also in high-stakes assessment, I think there’s a concern to ensure that unpredictability doesn’t skew the reliability and fairness of the SC performance. But you’re right: the power lies in the human unpredictability. When training SCs I try to address this by asking SCs to be congruent with their emotions, in Carl Rogers’ sense of the word, and we explore what that congruence might entail. So for example if the student lawyer is abrupt, talks over the client, seems arrogant, then the SC should not only note that for feedback or assessment, but should respond to it as they would in real life. Of course, there is a danger. SCs, like some of us (OK, me) in professional encounters, tend to have a certain distancing mask on our responses; and we might filter our responses. Some SCs may not naturally do that, and if robust responses come right back across the table, does that make the encounter less reliable as an assessment event? And what constitutes legitimate responses in these circumstances? How one might standardise that? I’d argue that first, standardisation isn’t possible in such circumstances; and second, that robust responses are going to be part of the holistic character of the SC as it is authentically presented in the room and therefore legitimate (as long as not abusive). The third point in this regard is more complex. We train the SCs to think on three levels: get the fundamental legal issues right (or else it skews the whole interview); second, use your ‘interior invigilator’ who should be a constant presence on the eight global assessment criteria; third, improvise by *enacting yourself*. I haven’t actually seen what I’m about to say in the literature, but it’s something I’ve always felt – namely, that if we train SCs into these ways of thinking, should we not also train our students to do something similar. It’s a form of professional mirroring. So their end of the table would entail getting the fundamental legal details right (ie listening, discriminating facts, identifying legally-relevant facts, and recalling the legal principles involved – a different form of remembering from that used by SCs, to be sure [unless we describe learning, in Plato’s lovely phrase, as a form of remembering]). It would mean using them using their ‘interior invigilator’ – am I client-centred, am I ensuring I’m not client-led, or being self-centred here, am I being courteous? and so on. And finally be your self – or perhaps, try to find your professional self who an act authentically and ethically in the circumstances of the interview.

On your final points, entirely agree. SCs should never be used to assess legal content. At most, they can be asked to remember if the student lawyer did something or omitted to do something, eg ask for client’s personal details, for specific documents, etc. Clients discuss the legal content of the interview, but are trained never to offer anything in the way of legal content that a lay person with no legal knowledge would know. On withholding legal information, I always train (and this is hard for SCs to do, time after time) SCs to enact the scenario as if it’s the first time they’ve told it, like in a conversation, with winding narrative trails, not obtuse or deliberately deceitful, but omitting details, looping back in time and place, the way we do in conversation.

Thanks for the comment Anneka. Really good points.

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