Standardized Client Training

Legal Interviewing and Standardized Clients Professor Paul Maharg University of Northumbria

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 Study 1

2000 Research Study Law Society of England & Wales ‘ 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’. Study 1

2000 Research Study Law Society of England & Wales ‘ 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 ’. Study 1

2000 Research Study Law Society of England & Wales ‘ 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] Study 1

2000 Research Study Law Society of England & Wales ‘ 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’. Study 1

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 service.

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

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

competence in client communication Study by Prof. Avrom Sherr (U of London) 143 actual 1 st interviews 24 % trainee solicitors 76% experienced solicitors 70% at least 6 years 23% more than 11 years High percentages of ineffective interviews Experienced solicitors generally no better than trainee solicitors Sherr, A. (2003) What clients know: client perspectives and legal competence, International Journal of the Legal Profession, 1, 5-31 Study 2

51% failed to get the client’s 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 Study 2 competence in client communication

competence in client communication 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 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’. Sherr, A. (2003) What clients know: client perspectives and legal competence, International Journal of the Legal Profession, 1, 5-31, 12 Study 2 summary: competence in client communication

Standardised Client Project SC project: Professor Clark Cunningham, Georgia State University Dr Jean Ker, Clinical Skills Unit, Medical Faculty, University of Dundee Professor Paul Maharg, Karen Barton, Glasgow Graduate School of Law (Strathclyde) Funded by: Clark Foundation for Legal Education, Scotland College of Law, England and Wales Burge Foundation, Georgia State U., USA

SCI: our hypothesis With proper training and carefully designed assessment procedures, Standardised Clients (SCs) could assess important aspects of client interviewing with validity and reliability comparable to assessment by law teachers

aims develop a practical and cost-effective method to assess the effectiveness of lawyer-client communication which correlates assessment with the degree of client satisfaction. ie answer the following questions… Is our current system of teaching and assessing interviewing skills sufficiently reliable and valid ? Can the Standardised Patient method be translated successfully to the legal domain? Is the method of Standardised Client training and assessment more reliable, valid and cost-effective than the current system?

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.

conclusions Use of SCs as described in our study is as reliable and valid as tutor assessments We make what the client thinks important in the most salient way for the student: a marked exercise 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 focus the assessment on aspects we believe can be accurately evaluated by non-lawyers We focus the assessment on initial interview, which at Northumbria will be supplemented by an advice-giving interview This has changed the way we enable students, trainees and lawyers to learn interviewing

where else are SCs used? Strathclyde University Law School, Glasgow – law students and trainees Society of Writers to the Signet, Edinburgh – corporate and commercial lawyers Law Society of Ireland – solicitors on continuing professional development programmes Kwansei Gakuin University Law School, Osaka, Japan – law students Solicitors Regulation Authority – Qualifying Law Transfer Scheme University of New Hampshire Law School, USA – 2 nd & 3 rd year law students Later this year, Australian National University, Canberra, Australia.

SC training 1: script conference read script as group discuss the role discuss feelings, reactions clear up ambiguities re role of lawyer use 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 closed questions… Performance analysis: ‘What prompted you to say…?’ ‘How did you feel…?’ And to: Be aware of orientation towards lawyer at first sight Respond congruently to the lawyer Consult the internal ‘invigilator’…

SC training 3: assessing lawyers We shall discuss marking system, and form a common understanding of it SCs will viewed and mark videos, comparing to ‘standard’ SCs will view each others’ ‘live’ performances and mark them Process repeated until everyone has role-played once Comment on performance Marks will be collated in the room (suspense factor…)

key activities Be aware of your self: Body language Eye contact Acting vs enacting Responding to questions and improvisation Relaying information Staying in neutral Congruence with own feelings Three-level thinking: Get the important facts right Improvise Assess according to criteria

after this week? You will role-play clients with students. You may role-play with real lawyers and other professionals There will be refresher training on the scenario you are about to learn. If you are being trained on a new scenario you will have the same pattern of training More information: These slides will be posted up on http://paulmaharg.com For more information on SCs, see http://zeugma.typepad.com/sci

initial practice workshop Divide into pairs – interviewer & interviewee, then swap. Aim for interviewer: Make your partner feel comfortable Ask questions about him or her Remember the information – no notes! Feed back the information to the larger group afterwards to introduce your partner Aim for interviewee Choose the person you want to be (yourself or anyone else) Answer questions easily,and giving information (but don’t tell long stories…)

Standardized Client Training

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