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Simulated Client: A Portrait of the
Ethics Tutor as Outsider
Paul Maharg
Osgoode Hall Law School
http://paulmaharg.com/slides
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1.What are SCs, and what is the Simulated Client
Initiative (SCI)?
2.SC training practices
3.Client communications research
4.Summary of some ethical issues
http://paulmaharg.com/slides
https://www.slideshare.net/paulmaharg
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 1

1. What are SCs, and what is the Simulated
Client Initiative (SCI)?

Simulated Client Initiative (SCI):
our hypothesis back in 2005
With 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.
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

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 & 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?

results from Strathclyde University pilot
Questions Results
1 Was our current system of teaching and assessing interviewing skills
sufficiently
1. reliable?
2. valid?
1. No
2. No
2 Could 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

what changed…?
• 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 client
• We do not conclude that all aspects of client interviewing can
be assessed by SCs
– We focused the assessment on aspects we believe can be
accurately evaluated by non-lawyers
– We focused the assessment on initial interview (which
was extended at one centre to an advice-giving interview)
• This has changed the way we enable students, trainees and
lawyers to learn interviewing & client-facing ethical
behaviour

eg assessment criterion 2
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.
7 Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

I felt the student lawyer listened to me
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.

I felt the student lawyer listened to me
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.

current status of SCI
University of Strathclyde Law School
(Glasgow, Scotland)
WS (Writers to the Signet) Society
(Edinburgh, Scotland)
University of New Hampshire Law School
(Concord, NH, USA)
The Australian National University College of Law
(Canberra, Australia)
Northumbria University Law School
(Newcastle, England)
Kwansei Gakuin University Law School
(Osaka, Japan)
Solicitors Regulation Authority -
Qualifying Lawyer Transfer Scheme (QLTS)
(London, England)
Law Society of Ireland -
Continuing Professional Development of Solicitors
(Dublin, Ireland)
Hong Kong University Faculty of Law
(Hong Kong)
National Centre for Skills in Social Care
(London, England)
The Chinese University of Hong Kong Faculty
of Law
(Hong Kong)
Flinders Law School
(Adelaide, South Australia)
Nottingham Trent University Law School,
(Nottingham, England)
Osgoode Hall Law School + OPD
(Toronto, ON, Canada)
International SCI projects
Canadian Centre for Professional Legal
Education (AB, MB, SK + NS)

independent studies…
Gerkman, A., Harman, E., Bond, L., Sullivan, .M. (2015). Ahead of the
Curve: Turning Law Students into Lawyers. A Study of the Daniel
Webster Honors Program. IAALS, Denver.
• In focus groups, members of the profession
and alumni said they believe that students
who graduate from the program are a step
ahead of new law school graduates;
• When evaluated based on standardized 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 standardized
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. (p.1, my
emphasis)

SCs @ Osgoode
• In 2018 SCs were recruited, trained and used
with 290 students in Shelley Kierstead’s
1L 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

• One of my favourite and most worthwhile opportunities all year
• Great opportunity! […] Good low stress experience
• 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
Some comments

Collaborations with professional
bodies

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.

SC training 1: script conference
• read script as group
• discuss their roles
• discuss their feelings, reactions
• clear up ambiguities re role of lawyer
• facilitator uses SC feedback to modify the
scenario

SC training 2:
practising the role
There’s a need for the SCs to calibrate:
• Body language
• Tone of voice
• Attitudinal swings
• Dealing with the lawyer’s open questions…
• Improvising on the lawyer’s closed questions…
• Performance analysis on video review: ‘What prompted you to
say…?’ ‘How did you feel…?’
And to:
• Be aware of their orientation towards lawyer at first sight
• Respond congruently to the lawyer
• Consult their internal ‘invigilator’…

SC training 3: assessing lawyers
• We discuss the marking system, and form a common
understanding of it
• SCs view and mark videos, comparing to ‘standard’
• SCs view each other’s ‘live’ performances and mark
them
• Process repeated until everyone has role-played at
least once
• Comment on performance
• Marks are collated in the room and analysed

SC training 4: Giving feedback
How to:
• Do it effectively and with empathy
• Focus on behaviour, not the person
• Talk to key aspects of the criteria
• Not confuse the learner
• Help learners improve

after initial training?
• SCs role-play clients with students, real lawyers and
other professionals
• SCs are given refresher training on the scenario
• If they are trained on a new scenario they will have the
same pattern of training
• They form a community of practice with two core
members of staff – ideally, admin + faculty to:
– improve practice
– suggest ways they may be used inside or outside
the law school

3. Client communications research
Thanks to Clark Cunningham

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)

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’.
2000 Research Study

‘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’.
2000 Research Study

• ‘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’.
2000 Research Study

summary: clients and their solicitors
• For 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 role and the service.

summary: what do clients dislike?
• Inaccessibility
• Lack of communication
• Lack of empathy and understanding
• Lack of respect

competence in client communication
• Study by Sherr:
• 143 actual first interviews
– 24 % trainee solicitors
– 76% experienced solicitors, of which:
• 70% at least 6 years
• 23% more than 11 years
• High 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 competence. International Journal of the Legal
Profession, 10 (1). pp. 5-35

• 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

• 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 solicitors

‘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.

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 monolithic construct
5. Law school categories of employment
6. The curricular isolation of clinic within many (not all) law schools
7. Hollowed-out skills rhetoric
8. Conventional forms of legal education regulation by regulatory bodies
9. The role of regulator: to be an 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?

4. Summary of some ethical issues

• Authenticity is not a mimesis of reality but a reconstruction of
aspects of that lived reality, so:
– Scenarios are validated by lawyers & faculty
– SCs discuss & alter them during training
– Ethical ‘issues’ can be embedded in the scenario; but the
best ethical education arises from lawyer interaction with
client
ethical design: scenarios

• Interview SCs for diversity issues
• Key principles:
– Enacting rather than acting
– Congruence with own feelings
– Remember the evidence
– Feedback on the core eight assessment criteria
– Talk to lawyer’s performance, not to lawyer’s person
ethical design: SC training

• Standardisation, sure, but for both lawyer & client…
– An awareness of client feelings and their powerlessness
– Existential awareness of power relations
– Who is ‘instructing’ whom?
– Body and language, use of silence
– Who controls interview structure and how; and what’s the
effect of that control on both parties
ethical design: SC training

• Awareness of medical literature on SPs and debates on
standardisation, eg limits of standardisation
• Training of SCs is mirrored in the training of trainers – same
principles
• Ethos is not merely instrumental (eg improving the quality of
client comms) – its aim is improved ethical awareness
ethical design: training the trainer sessions

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. Garvey, J.B. (2010). A performance-based approach to licensing lawyers: The New
Hampshire ‘Two-Year Bar Examination’.
http://www.teachinglegalethics.org/sites/default/files/conference/NH-
Conference.pdf
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.
6. Gerkman, A., Harman, E., Bond, L., Sullivan, W.M. (2015). Ahead of the Curve:
Turning Law Students into Lawyers. A Study of the Daviel Webster Scholar Honors
Program at the University of New Hampshire School of Law. IAALS, University of
Denver, http://bit.ly/2PVcNSS .

40
Email: pmaharg@osgoode.yorku.ca
Osgoode: https//works.bepress.com/paul-maharg
Web: paulmaharg.com
Slides: paulmaharg.com/slides
16.6.17 Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

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