Simulated Clients (SCs) - PowerPoint Presentation

Slide1

Simulated Clients (SCs)in legal education

Professor Paul MahargSlide2

What is the SCI, and what are SCs?Current usesTraining

Why would we want to do this?Slide3

Simulated Client Initiative (SCI):our hypothesisWith proper training and carefully designed assessment procedures, Standardised or Simulated Clients (SCs) can assess important aspects of client interviewing with validity and reliability comparable to assessment by law teachers.Slide4

aimsdevelop 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…Is our current system of teaching and assessing interviewing skills sufficiently

reliable

and

valid

?

Can the Simulated

Patient

method be translated successfully to the legal domain?

Is the method of

Simulated Client

training and assessment more reliable, valid and cost-effective than the current system?Slide5

results from Strathclyde University pilot

QuestionsResults1

Is our current system of teaching and assessing interviewing skills sufficiently

1. reliable?

2. valid?

No

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

reliable,

valid

cost-effective

than the current system?

Yes

Yes

YesSlide6

discussion…We make what the client thinks important in the most salient way for the student: an assessment where most of the grade is given by the clientWe do not

conclude that all aspects of client interviewing can be assessed by SCsWe focus the assessment on aspects we believe can be accurately evaluated by non-lawyersWe focus the assessment on initial interview (which has been extended at Northumbria U to an advice-giving interview)

This has changed the way we enable students, trainees and lawyers to learn interviewing & client-facing ethical behaviourSlide7

current status of SCICurrent SC initiatives in:

Project was funded by:Clark Foundation for Legal Education, ScotlandCollege of Law, England and WalesBurge Foundation, Georgia State U., USA

Strathclyde

University Law School

WS

Society (Edinburgh)

University of New Hampshire

The Australian National University College of Law

Northumbria U Law School

Kwansei

Gakuin

U Law School (Osaka)

SRA

– Qualifying Lawyer

)

Law Society of Ireland

Hong

Kong University Faculty of Law

Adelaide

University Law School

The Chinese University of Hong Kong

Law School

National Centre

for Skills in Social Care, LondonSlide8

training of SCs ‘The best way to learn how to do standardized patients is to do it along side of someone who has already done it before. It’s [the] apprenticeship system.’

Wallace, P. (1997) Following the threads of an innovation: the history of standardized patients in medical education, Caduceus, A Humanities Journal for Medicine and the Health Sciences, Department of Medical Humanities, Southern Illinois University School of Medicine, 13, 2, 5-28. Slide9

SC training 1: script conference read script as groupdiscuss your role

discuss your feelings, reactions clear up ambiguities re role of lawyeruse feedback to modify the scenarioSlide10

SC training 2: practising the role There’s a need for the SCs

to calibrate:Body languageTone of voiceAttitudinal swingsDealing with the lawyer’s open questions…

Improvising on the lawyer’s closed questions…

Performance analysis: ‘What prompted you to say…?’ ‘How did you feel…?’

And to:

Be aware of your orientation towards lawyer at first sight

Respond congruently to the lawyer

Consult your internal ‘invigilator’…Slide11

SC training 3: assessing lawyersWe discuss the marking system, and form a common understanding of itSCs view and mark videos, comparing to ‘standard’

SCs view each other’s ‘live’ performances and mark themProcess repeated until everyone has role-played at least once

Comment on performance

Marks are collated in the room (suspense factor…)Slide12

key activitiesBe aware of:Your self: Body languageEye contactActing

vs enactingHow you respond to questions and how you improvise:Relaying informationStaying in neutralCongruence with own feelings

Your ‘three-level thinking’:

Get the important facts right

Improvise

Assess according to criteria Slide13

after initial training?SCs role-play clients with students, real lawyers and other professionalsSCs are given refresher training on the scenario

If they are trained on a new scenario they will have the same pattern of trainingThey should form a community of practice with two core members of staff – ideally, admin + academic to:improve practicesuggest ways they may be used inside or outside the law schoolSlide14

2000 Research Study Law Society of England & Wales

Interviewed 44 clients of 21 different solicitors in the north of England.50% said that they had previously used a solicitor whom they did not like. The most common complaint was lack of respect, followed by a lack of interest in the client, and then poor communication.

Hillary

Sommerlad

& David Wall: Legally Aided Clients and Their Solicitors: Qualitative Perspectives on Quality and Legal

Aid, 2-6 (Research Study No. 34 The Law Society 2000)

Study

1Slide15

2000 Research Study Law Society of England & Wales

Study

1

Clients talking about their solicitors:

‘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

’. Slide16

2000 Research Study Law Society of England & Wales

Study

1

‘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’.

[continued]Slide17

2000 Research Study Law Society of England & Wales

Study

1

‘I like my current solicitor because I can have a chat with her, I trust her ... ... The other solicitor — I was just a file for him, but for [her current solicitor] I’m a real person and that comes across in court’.

‘I wanted the law to be explained. ... The way the solicitor views the client is important. He has to be interested in our views’.

‘They must be able to give you time. If solicitors haven’t got enough time, they can’t get enough out of you. You have to have time to be able to tell your story’.

‘I never liked him. ... we couldn’t have had a solicitor like him for this [matter]; I think he was perfectly competent, but there was no sympathy’.Slide18

summary: clients and their solicitorsFor many clients, their engagement with the law was not simply about achieving a result.

Their responses indicated that the process itself was important.Empathy and respect were not luxury items: they were fundamental to the service.Slide19

summary: what do clients dislike?InaccessibilityLack of communication

Lack of empathy and understandingLack of respect Slide20

summary: what do clients most care about?Three things, in descending order:

the process, ie having their problems or disputes settled in a way that they view as fair

achieving a fair settlement

the number of assets they end up winning.

Tyler, T. (1988

) Client

perceptions of litigation. What counts: process or result?

Trial

Magazine,

7, 40-47Slide21

competence in client communicationStudy by Sherr:143 actual 1

st interviews24 % trainee solicitors76% experienced solicitors 70% at least 6 years23% more than 11 yearsHigh percentages of ineffective interviews

Experienced solicitors generally no better than trainee solicitors

Paterson, Alan and Moorhead, R. and

Sherr

, A. (2003) What clients know: client perspectives and legal competenc

e. International Journal of the Legal Profession,

10 (1). pp. 5-35

Study

2Slide22

Study

2

51%

failed to get client agreement

to advice or plan of action

76%

failed to confirm with client

the solicitor’s understanding of the facts

85%

failed to ask before ending whether there was anything else the client wanted to discuss

competence in client communicationSlide23

competence in client communicationStudy

2

Experienced solicitors:

Used less legalese

Better at “filling in the gaps”

Rated their own interview performance higher than did trainee solicitors

But the clients saw

no difference in performance between trainees and experienced solicitorsSlide24

Study

2

‘Being ‘‘client centred,’’ … is about paying attention to the practical and emotional needs of the client, not necessarily agreeing with the client’s motives, policy or philosophy and not necessarily doing what the client says they want. The client centred lawyer will listen to the client in order to advise on all options, as well as showing what they think is best for the client’.

Paterson, Alan and Moorhead, R. and Sherr, A. (2003) What clients know: client perspectives and legal competence

. International Journal of the Legal Profession,

10 (1). pp. 5-35, 12.

See also Felstiner, W.L.F., Pettit, B. (2002) Paternalism, power and respect in lawyer-client relations, in Sanders, J., Hamilton, V.L., eds,

Handbook of Justice Research in Law

, Kluwer Academic Publishers, New York, 135-154.

summary: competence in client communicationSlide25

SCs: people as co-producers, co-designersThe SC approach challenges:Curriculum methods

Ethics of the client encounterThe cognitive poverty of conventional law school assessmentLaw school as a self-regarding, monolithic construct

Law school categories of employment

The curricular isolation of clinic within law schools

Hollowed-out skills rhetoric

Conventional forms of regulation by regulatory bodies

The role of regulator, as encourager of innovation & radical reform…?

Disciplinary boundaries – what about a SC Unit that’s interdisciplinary?

Local jurisdictional practices: how might such a project work globally?Slide26

more information…Websites: these slides @ http://paulmaharg.comBarton, 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.Maharg, P. (2007). Transforming Legal Education: Learning and Teaching the Law in the Early Twenty-first Century. Aldershot, Ashgate Publishing, chapter 2, 64-67.

Garvey, J.B. (2010). New Hampshire’s performance-based variant of the Bar Examination,

http://www.ncbex.org/uploads/user_docrepos/790210_Garvey.pdf

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. Aldershot, Ashgate Publishing.