The gentle rebuke

by Paul Maharg on 17/11/2017

Yesterday I presented to faculty and students at Osgoode on the Simulated Client Initiative (SCI).  Slides at the usual place, at the Slides tab above and on Slideshare.  Lots of fascinating discussion afterwards.  To demonstrate the eight global criteria we developed at Strathclyde, and how they were used with SCs, I took the second criterion as an example, which was about listening to the client, and the behavioural items associated with it.  Like all the criteria, it’s addressed to the SC.[1]

So is listening that important that it should appear as one of only eight assessment criteria on which students are assessed in interviewing?  I think so, and here’s a story that illustrates the resonances.

Another lifetime ago I used to play the guitar in bars and restaurants in Glasgow, playing with a brilliant traditional musician, Jimmy McGuire. Sometimes after the Saturday gig we’d still want to play more, so we’d head off to an informal session at the Tron Bar, into the wee hours.  One night, in one set my accompaniment was becoming a bit too elaborate for the fiddle tune.  And a regular listener at the session, a lithographer if I remember right, leaned across and touched my arm.  The touch was a shock, brought me back to myself and the musical dialogue that I was getting wrong.  Listen, it said.  Come out of your own space.  It’s good to play music that surprises, leads us into new harmonic spaces, breaks rhythms.  But don’t get above yourself: forget yourself.

I’ve never forgotten that gentle rebuke, delivered by someone else earning his living from the arts, and when I began teaching law it seemed to me to have as much applicability to legal education as to musical performance.  If we doubted that listening in dialogue was important in lawyer-client relations, we only have to look at the research, some of which I showed in the session, and which was first presented in a similar session by my colleague on the SCI, Clark Cunningham, one of the original founders and funders of the SCI.  It’s a study by Hilary Sommerlad and David Wall for the Law Society of England and Wales.[2]  The researchers interviewed 44 clients of 21 solicitors, half of whom said they had previously used a solicitor they did not like – common complaints were lack of interest or respect, and poor communications.  Comments from clients included the following:

‘I sent my former solicitor packing because she wouldn’t listen.  That is absolutely fundamental; this was my case, only I knew the full circumstances’.

‘I went to [my current solicitor] because of her reputation and expertise…  She is a part-time Registrar and has a big reputation as a specialist in this area but she just doesn’t listen’. She listens for part of what I have to say, and then interrupts, saying something like “OK, I’ve got the picture, what we’ll do is …” and she hasn’t really got the picture, she’s only got half the facts. I think it’s partly because she so busy and also because she’s simply not used to giving clients a voice. What’s more she has actually made me frightened of expressing my views.  I am about to change to another solicitor’.

This surely goes beyond good manners or courtesy: it’s an ethical matter.  It was for me playing in the Tron Bar those many years ago, and I remember it because I still smart from it, a fall from grace.  In the same way, it should be a moral issue for students who are learning the complex dialogue of law and clients, and developing their own voices, which is why listening is up there as one of our eight criteria in interviewing skills.  Civility and a welcoming hospitality for the stranger are profoundly ethical, the beginnings of right knowledge of each other, and listening is an integral part of that.  But it is also an art, and we seldom if ever approach it as such in legal education.  It’s as important for us as legal educators to help our students find their voices and use them, as it is for lawyers to help their clients find their voices, and for musicians to find their voices, too; and art and art’s methods can surely play many parts in that.

We could, for example, explore with our students how musicians develop expertise, how they learn to read and remember, how they develop a sense of propriety in performance.  We can help our students develop practice routines as musicians do, explore what being professional about music means for a performer, and what being professional about law means for a lawyer.  We can design physical and temporal spaces in the curriculum for them to practise and improve.  SCs can play the role of experts (using their own experience as trained clients) to give valuable feedback on performance (and for evidence of how valuable it can be, see this small study from ANU, an evaluation by CEIST of the use of SCs with students from the  professional programme, the Graduate Diploma in Legal Practice).  We can also advise on the art by using art itself, as the Scots poet W.S. Graham shows us in his great poem of music, language and the ethics of art, where the eighteenth century flautist and composer Johann Joachim Quantz is talking to his student, Karl:

Do not intrude too much
Into the message you carry and put out.

and he ends the final stanza, where he says farewell to Karl, with words that surely apply to any art and indeed any professional relationship:

One last thing, Karl, remember when you enter
The joy of those quick high archipelagoes,
To make to keep your finger-stops as light
As feathers but definite. What can I say more?
Do not be sentimental or in your Art.
I will miss you. Do not expect applause.[3]

‘To make to keep your finger-stops as light’ – isn’t that a great line, with the lilt and repetition of the syntax like a flautist’s finger-stops.  And the structure of the final two lines – the second-last surprising us with its elision of ‘in your life’ and the word ‘or’ that throws us back on the command; and the last, moving in its simplicity in the first half of the line, ‘I will miss you’ and then, carrying out his own instructions about sentimentality in the previous line, the brief advice to modesty and humility.  Even in this brief extract there’s a remarkable fusion of practice and ethics that’s applicable to musicians, poets, lawyers, law students.

And also, to complete the circle, to legal educators.  As the title of the session suggested (‘The simulated client initiative: a portrait of the outsider as teacher’) it is precisely because they are outsiders that the experiences of SCs in the interviews help us to find our roles and voices as educators, and help us, too, to find a way to bridge between critical research on the profession, and our students’ developing skills of listening and speaking.

 

  1. [1]In training SCs we discuss cultural biases such as those around gaze, and the values associated with it.  And of course the training includes sensitivity as to physical disability, too.
  2. [2]Hilary Sommerlad & David Wall (2000).  Legally aided clients and their solicitors: qualitative perspectives on quality and legal aid, 2-6.  Research Study No. 34 The Law Society.
  3. [3]W.S. Graham Collected Poems 1942-77.  London, Faber.  ‘Johann Joachim Quantz’s Five Lessons’.

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