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That question perplexes attorneys and law professors in the same way a similar question puzzled audiences during performances of “My Fair Lady” when Henry Higgins asked, “Why can’t a woman be more like a man?” For attorneys, theway that medical schools educate and train doctors has little or no relevancy to the task faced by law schools.
I was part of this “puzzled” group until the fall of 2003 when I arranged a visit to the University of Massachusetts Medical School in Worchester, Massachusetts, mostly as a rationale for spending less time with my Massachusetts in-laws. The Director of the Med School’s Standardized Patient Program permitted me to watch first- and second-year med students interviewing, examining and diagnosing actors pretending to be patients. Little did I anticipate that the visit would be my “fall on the road to Damascus.” The light bulb flashed on. I asked myself, “Why aren’t law schools providing law students with similar experiences?” Instead, we send out young graduates to “practice” their lawyering skills on their first clients. Except for those relatively few law school graduates who take Clinic, most have had no opportunity in law school to interview and counsel clients, negotiate and plea bargain with lawyers, or depose witnesses. What are we thinking?
I returned to the University of Dayton School of Law (UDSL) with the evangelical spirit burning brightly. I preached the gospel of a Standardized Client Program (SCP) to Dean Lisa Kloppenberg, and she was more than willing to support a pilot program to determine if the med school standardized patient curriculum could be adapted to the law school environment. Four years later I can report that not only has the transplant survived, but it has blossomed and grown.
The remainder of this article will describe the Standardized Client Program at the University of Dayton and how it has greatly enriched the educational experience of its law students.
Simulations And Intrasession Classes Prepare Students For The Real World
The schedule at UDSL facilitates incorporating simulated experiences into the curricula because every semester includes a one-week “Intrasession” when regular classes do not meet. During this interval students are able to enroll in a variety of one credit courses where they have the opportunity to engage in intensive simulated experiences. For example, during the spring semester Intrasesssion, all first year students are required to enroll in an interviewing class. The students are given some basic instruction during the first part of the week on how to conduct an initial interview with a client and then are literally thrown to the “clients,” who are played by actors.
In addition to the Intrasession courses that create simulated lawyering experiences for the students, professors teaching more traditional courses add simulations to their curricula. Courses like Family Law are ideal for using standardized clients. Lecturing about custody issues is tame fare compared to having students counsel actors/clients about obtaining custody of their children when those actors/clients are primed to turn up the emotional heat during the counseling session. Students have to be well-versed in the substantive law and skilled in their “desk-side” manners in order to be competent counselors.
A common theme in educational circles is that students often learn the most from their mistakes. One usually does not put one’s hand on a hot stove twice. The SCP allows law students to make mistakes for free with no bad consequences for clients. For example, the student who essentially ignored the wife when he spoke with a couple during an initial interview will never make that mistake again because during the subsequent critique session the actor/husband told the student in explicit terms how much this neglect of his wife “ticked him off.”
Using Actors And Practicing Attorneys Has Many Advantages
The use of actors1 for role playing is far superior to relying on fellow students to play clients or witnesses. Actors are trained to stay in character from the time they walk on the stage until the final curtain. Student role players often slide in and out of character: sometimes they are the client and at other times they revert to being just a fellow student, smiling and laughing when they should be teary-eyed. Actors can make counseling sessions so realistic that students forget they are just simulations.
One counseling simulation, involving one of the toughest challenges for a lawyer, was so charged with authentic emotion that the students came out of the session totally drained. The clients were a mother and father whose child was killed when he rode his bike into the street and was hit by a car. The driver of the car was clearly not negligent, and the child was not hurt very badly, but he did have a “bleeder.” A doctor happened to be on the scene and the parents pleaded with the doctor to help their child. The doctor refused and the child bled to death before the ambulance arrived. Who could help feeling sympathy for these parents and anger toward the doctor? The law, however, is clear. The doctor does not have to help. The assignment for the students was to tell the distraught parents that they didn’t have a case. To add to the emotional electricity in the room we created tension between the depressed, crushed mother and the hard-driving father who demanded “justice for Paul.” In the end, some of the students just could not bring themselves to tell the parents there was no legal cause-of-action for their claim. One student ended up saying, “You have a 50-50 chance of winning.” The dad, of course, said. “Good, let’s sue the bastard!”
In the feedback and critique session immediately following the simulation, the actors asked the students why they could not give the “bad news.” Most said that they felt so bad for the parents that they just could not bring themselves to say that there was no case and dash any hope the parents had to help mitigate their tragic loss. Again, this was a “free mistake”—a lesson that the students will never forget and it came at no cost to a real client. Yet it was etched in their professional consciousness that lawyers do clients no favors by not being completely truthful with them. Actions like this only defer pain and disappointment, not erase it.
Another advantage of using actors for the simulations is that they thoroughly know their roles and understand the characters they are playing, a critical factor in conducting successful simulations. For obvious reasons, the simulations cannot be scripted. The actors/clients have no idea how a particular student will approach an interview or a counseling session. Nor do they know in advance the questions that will be asked. Thus the actors must be ready to improvise without a pause in the dialogue. Such mental and verbal agility would be a big challenge for most people, but it is “just another day at the office” for an actor.2
Actors are also very quick studies for their roles in the simulations. They easily adopt suggestions on how the character or the dialogue could be improved. If you want a client to have a foreign accent or a speech defect, they can accommodate the request. An actor can also make immediate adjustments in the character. Furthermore, because actors have such a good sense of what makes a scene realistic, they provide excellent advice on how to improve simulations. A law professor may know the law, but an actor is a student of people and understands how ordinary people react when dealing with the vicissitudes of life.
When simulations require the use of practicing attorneys rather than actors, such as when studying negotiations, UDSL is fortunate to have a large number of lawyers who are eager to participate in the SCP. Anyone who has taught negotiations in a law school knows that negotiations between law students are less than realistic. Often, students do little actual bargaining, quickly disclose their bottom lines and get the exercise over with as soon as possible. That does not happen when a skilled negotiator is across the table from the law student. The students are loath to look bad in front of someone who may be a future employer or colleague.
Simulations Improve On Clinic Programs
In some ways, the SCP can be a better learning experience for law students than live client clinic programs. A clinic course is an invaluable opportunity for students to interact with real clients with real problems, and simulations cannot duplicate that. There are, however, some inherent weaknesses in clinic programs. A major challenge to the maintenance of quality clinics is the cost of running them, so that it is impracticable for most law schools to require every law student to enroll in one. Consequently, the vast majority of law students graduate without having any kind of clinic experience. The SCP is much less expensive to operate than a live-client clinic,3 and is available to everyone.
Another difficulty with live-client clinics is that the quality and extent of a student’s learning is largely determined by the client who walks through the door. While a few clients may either have outsize personalities or show up with incredibly interesting and challenging cases, most are prosaic and have cases that may require no more than filing a batch of boilerplate documents. As a clinician there are a number of lawyering skills you might want all your students to learn, such as explaining to an angry client why he or she does not have a viable case,4 but, unless a clinic client happens to have such a case and attitude, the student will not have the opportunity to hone those client counseling skills. The SCP has the capability of matching the legal issues of the case and the characteristics of the client to the desired learning outcome. Thus, one can, for example, ensure that every student will have the same chance to convey the bad news to an anxious client.5
If one of the advantages of the SCP is that students learn from their mistakes at no cost, then it is essential that students be told about their mistakes when the revelation will have the most impact. Not surprisingly, an immediate critique is most effective; feedback delayed is feedback denied. In the SCP, feedback is immediately provided by the person who knows the most about a student’s performance—the actor/client who participated in the simulation. At the conclusion of the performance the actor takes about five minutes to reflect on the student’s performance and make some notes about what he or she has observed. Then the student returns to the simulation room for an in-depth review of the student’s performance. The assessment is guided by an evaluation form which lists the kind of lawyering skills the professor hopes will be displayed by the student. Not only is this feedback from the actor/client more efficient than having the professor review a video tape of the performance,6 it is more effective, too. Who knows better about the impression the student made on the client than the person playing the client? How would the professor know if the handshake was warm and welcoming or cold and off-putting? The client knows whether the student is building trust while someone watching a video-tape can only guess if trust is being established.7
Evaluating Students? Progress Is An Important Component
Although the SCP at the University of Dayton is a valuable methodology for teaching and practicing a variety of essential lawyering skills, the UDSL program takes the process one step further. Before a student can graduate from the University of Dayton, the student must demonstrate that he or she possesses a minimal competency(8) with respect to those skills.9 During an Intrasession in a student’s fifth or sixth semester, the student must participate in a battery of simulations designed to test those important skills. The student must receive a satisfactory evaluation for every skill area or will have to try again with a new simulation. The skills that the SCP presently tests are: 1) research and writing in the form of written memoranda; 2) interviewing the client; 3) counseling the client; and 4) negotiating.
The requirement that third year law students pass a battery of lawyering skill tests before they can graduate increases the importance of how their performances on the tests are assessed. The assessment must be fair and based on consistent, uniform criteria with a level playing field for all test takers. Those standards are easily met in the normal written exam situation. Every student takes the same exam and the exams are graded by the same person. With skill testing, however, the “test” may—and probably will—vary from student to student. First, it is highly likely that the actors/clients the students interview or counsel will be different people as it would be logistically impossible to have the same actor performing in 60-80 simulations. Mostly likely, at least ten different actors will be used during the course of the testing. Second, even if the actors were the same, the dynamics of each simulation are apt to be different because the approaches taken by the students and the questions they ask will likely differ considerably. Finally, the person assessing student performances will not be the same for all students. The actor/clients will make the initial evaluations only for those students who met with them, and the actors’ evaluations may be reviewed by several different faculty members. Some students may draw more challenging clients or evaluators who have different standards of what constitutes a “satisfactory demonstration of competency.”
In light of the above variables, how can assessment be fair and uniform? There are a number of ways to ensure fairness in the testing regime, but first it is important to remember that the skills testing in the SCP is not comparable to the “high stakes” testing required by medical licensing boards.10 The bar for earning a “pass” in the SCP testing is not set very high. One would not expect a newly-hired associate to display the skills of a seasoned attorney, but you would anticipate that the young associate would not be an embarrassment. Furthermore, the consequences of not getting a pass in the SCP testing are not draconian. A law student who does not get a “pass” in one of the simulations only has to try it again until he or she gets it “right.” It would be highly unlikely that the learning curve of any third-year law student would be so flat that he or she could not pass the second time around.
Fairness is also protected by the evaluation process. The first evaluator of student performance is the actor/client who participated in the simulation. Before participating in the testing simulations, the actors spend several hours rehearsing their roles and being trained in assessing performances. They are also provided with an extensive assessment checklist which tells them the kind of skills the students are expected to demonstrate. After conducting the simulation, the actors are given time to review the checklist and write a brief summary of their evaluation. Then the students return to the room and are critiqued on their performances by the actors. The students are not told at that time whether their performances were adequate. After the critique session, the actors’ evaluation forms are given to the supervising faculty member. If an actor indicates on the form that a student’s performance was satisfactory, the presumption is that the student has passed that portion of the test. The tapes of students who receive a satisfactory grade are not reviewed by a faculty member.11 If an actor suggests that a student’s performance was unsatisfactory, then a faculty member automatically reviews that student’s video tape along with the actor’s evaluation form and makes a final determination whether the performance was satisfactory.12
The assessment issue, and who does it, is probably the most contentious issues raised by faculty members. Some faculty members believe it is an improper delegation of faculty authority to allow non-faculty members who are not lawyers to decide whether a law student passes a class. The counter-argument, of course, is that there is no better person to assess whether an attorney has communicated effectively or established trust with the client than the client. The UD law faculty has resolved that debate for the moment. During the October 2007 Intersession skills-testing course at UDSL, all student performances will be reviewed by recently hired adjunct faculty.
Faculty And Staff Help Support The Program
It is clear that law schools will never be able to duplicate the Standardized Patient Programs adopted by medical schools. Their resources dwarf those of most law schools. Nevertheless, a law school can implement an effective Standardized Client Program on its more limited budget, as the University of Dayton has done. The Dayton SCP uses the facilities of the clinic to conduct the simulations. The clinic has several interview rooms with hidden cameras and DVD recorders. If more interview rooms are needed, faculty offices are used along with a large seminar room which is subdivided into office cubicles. Portable DVD cameras are installed to record all simulations. Thus, UDSL has the ability to run 10 or more simulations simultaneously.
As mentioned earlier, the SCP has a Director who is a faculty member. Being Director of the Program constitutes 1/6 of the faculty member’s teaching load. There is a part-time administrative assistant who doubles as a clinic administrative assistant during most of the year. A professional writer paid an hourly wage creates scripts and materials for the simulations. The acting coach/director and actors are also paid hourly rates. When a large number of simulations are scheduled, several student workers are hired to move students and actors in and out of rooms and operate the DVD cameras.13 The total cost for the SCP is far less than the tuition revenue generated by students enrolled in a one credit hour course.14
Students Value The Opportunity To Experience Being A Lawyer
As one might expect, students react positively, even enthusiastically, to the SCP when the simulations are incorporated as part of regular classes. They like experiential learning that attempts to capture the real life scenarios they are likely to face in the practice of law. As one student wrote, “It is the only practical/real life class I had in law school.”15
Students are slightly less enthusiastic about required one credit intrassession courses that focus on developing a specific skill, but still regard these courses highly. They do not, however, appreciate the skills-testing intrasession course, which is a graduation requirement. Students do not like being tested on things they think they have already learned. Of course, to accept that kind of reasoning would mean the end of bar exams and would make law schools a “test free” zone. Skills-testing, like bar exams, is meant to protect future clients from incompetent lawyers.
As it turns out, Henry Higgins’ question is not so unreasonable. Law schools can be more like med schools by transplanting the Standardized Patient Programs into their curricula and growing Standardized Client Programs. The implementation of a SCP would address a major weakness in law school education and it can be done at a reasonable cost. Medical schools have already done most of the spadework. They have demonstrated in numerous studies the effectiveness of their Standardized Patient Programs and the value of using standardized patients as part of the medical licensing requirement. We should thank the medical profession for showing us the light.
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FOOTNOTES
1. Dayton is fortunate to have a host of amateur theater companies in the area, so there is a substantial pool of talent to draw on. The actors are paid $15 an hour for rehearsals and performances. The Law School also employs an acting coach at an hourly rate who has directed and produced dozens of plays. In fact, the Standardized Client Program may be one of the biggest employers of actors in Dayton.
2. The opportunity to hone their improvisation skills is one of the reason’s actors enjoy being part of the Standardized Client Program.
3. The University of Dayton’s Law Clinic is probably typical. It consists of three faculty members supervising 12 students per semester, plus an office administrator. That means that out of a graduating class of 150 students, only 24 will have taken the clinic course. In contrast, the SCP operates with only one part time faculty member and an administrative assistant, periodically helped by several paid student workers, and every graduate will have been through at least half a dozen simulations.
4. Another example might be raising certain ethical and professional issues.
5. Combining a SCP with a clinic experience would give students the best of both worlds, the challenge and thrill of dealing with real clients and realistic simulations that forces students to hone a broad array of lawyering skills. The UDSL Law Clinic often incorporates a number of SCP simulations at the beginning of the semester to expose all the students to important legal, ethical and professional issues.
6. All simulations are recorded on DVD for review by the professor and the student.
7. The radical idea that a person who is not a lawyer or law professor, an actor no less, can adequately critique a student’s performance in a simulation is probably the most difficult concept for a law professor to accept. We like to believe we are the font of all knowledge in a law school and consequently we must strictly limit any non-lawyers who think they have anything constructive to add to the education of lawyers.
8. Minimal competency is defined as that level of skill that should be possessed by a first year associate in a law firm.
9. At this point in time, UDSL may be the only law school in the United States that has such a requirement for graduation. Georgia State School of Law and the Glasgow Graduate School of Law are also rapidly progressing down the Standardized Client path. See: Barton, Cunningham, Todd Jones, Maharg, Valuing What Clients Think: Standardized Clients and the Assessment of Communicative Competence, 13 Clinical Law Review 1 (2006).
10. Many states now require graduating medical students to demonstrate satisfactory “doctoring skills” in a series of encounters with simulated patients as part of the licensing process.
11. In order to insure consistency of evaluation and that students are not receiving “easy” passes from the actors, a random sampling of videotapes will be reviewed by a faculty member.
12. Medical schools have run extensive studies that demonstrate evaluations of med student performances by the actors/patients and reviewing doctors are essentially the same. See: William R. Gilliland et al., Standardized Versus Real Hospitalized Patients to Teach History-Taking and Physical Examination Skills, 18 Teaching & Learning Med. 188, 188-195 (2006); John Norcini & John Boulet, Methodological Issues in the use of Standardized Patients for Assessment, 15 Teaching & Learning in Med. 293, 293 (2003); Michael K. Turner et al., Web-Based Learning Versus Standardized Patients for Teaching Clinical Diagnosis: A Randomized, Controlled, Crossover Trail, 18 Teaching & Learning Med. 208, 208-214 (2006).
Lawrence Grosberg at New York Law School has run similar studies and concluded that evaluations of law student performances by actors/clients and reviewing law professors are also very similar. Lawrence Grosberg, Standardized Clients: A Possible Improvement for the Bar Exam, 20 Georgia State University law Review 841 (2004).
13. If a Standardized Client Program has a sufficient number of rooms and enough actors, it is possible to conduct over a hundred simulations in one day. During one Intrasession when the entire first year class was required to participate in an Introduction to Interviewing class, UD Law School conducted 150 interviewing simulations, including feedback, on a Monday and then conducted another 150 simulations the next day. Thus, each member of the first year class participated in two interviewing simulations in two days.
14. For example, the Interviewing Intrasession generated $135,000 in revenue and costs were less than $45,000.
15. Apparently his fellow students were in agreement; on student evaluations the course was rated at 4, on a 4 point scale.
