Designing a semester-long assessment in law

Designing a semester-long assessment in law

Semester-long assessment tasks centred on a single transaction sound challenging to plan. But it can provide an opportunity for the development of practical skills. It can also build an experience that will be immediately applicable to graduates’ needs in the workplace. This style of assessment might appear at first blush to only be relevant to some units. But designing a semester-long assessment in law that is authentic and practical can be applied to many subjects.

Why?

Research in the United States has found that the most commonly reported criticism of courses is that they are taught in such a way that there is no clear connection to ‘the real world’. For such a vocationally-oriented area of study, there are too few opportunities to be engaged in practical learning experiences. Practical learning experiences have been the subject of more recent discussion in Australia as well.

I set out to design practical activities and assessments in a compulsory unit; civil procedure. The objective was to allow law students to demonstrate that they have achieved the expectations of graduates in the Australian legal education curriculum in as realistic a setting as possible.

How does it work?

At the beginning of semester, a scenario was made available in the form of a ‘case file’. It set out the factual background to a civil dispute.

The case file included statements and instructions from the client(s), other witness statements and supporting documents. They were as authentic and plausible as possible. As far as possible the case file used real locations as the setting for the events with real ‘things’ described and even photographed. While I made parts of the case available to both groups, certain material was only available initially to the plaintiff or the defendant. 

I assigned students to play the role of the lawyer for the plaintiff or the lawyer for the defendant. I also paired them so that students communicated with a real person – the student representing the other side.

Assessment tasks

The assessment tasks were similar but their content depended on for whom the student acted. In addition to submitting the assessment the student also served a copy of their task on the student acting for the other side.

The assessment tasks focused on specific events within the civil litigation process. I based all the events on the original ‘case file’.

  • Memorandum and letter: The memorandum is a research task. It provides the opportunity for students to think through their client’s claim or defence and the applicable law. The memorandum included a letter to go to the other side as pre-litigation negotiation.
  • Pleadings: This is a formal step in litigation requiring the preparation of specific documents setting out the claim or the defence.
  • Interlocutory application or response: Preparing applications in proceedings (interlocutory) is a common task for junior lawyers. This assessment task also included the preparation of affidavits. Including affidavits also provides the opportunity to review some of the law of evidence.
  • Interlocutory hearing: Students either presented or responded to the interlocutory application in ‘open court’.
Preparing for assessment tasks

In order to scaffold the tasks, I designed lectures to demonstrate the skills necessary to complete each task.

I designed each tutorial to focus on a specific step. For example, that might be a problem that requires a short hearing and an opportunity for oral advocacy. Alternatively, it might be an explicit demonstration of a drafting exercise.

Some tutorials were ‘plaintiff only’ or ‘defendant only’ to allow those specific groups of students to discuss among themselves how to go about the assessment tasks without being concerned that they are sharing confidential information.

A special note on late submissions

Just as in real life, students had to serve all assessment tasks on the other party. This was crucial to the assessment. And, if omitted in real life, may result in a client’s claim or defence being struck out. In the context of assessment, late submission is also a difficulty for the student acting for the other party. All students were told that if they are going to be late in submitting an assessment task, as a matter of professional courtesy they should also let the pre-admission lawyer acting for the other party know.

In order to support this, I included a very early discussion about professional obligations and courtesy in litigation. In tutorials, we also discussed our commitments to one another – both between convenor and students and among themselves.

So how did it go?

In practice, the assessment process demonstrated a number of strengths – both expected and unexpected.

Problem-solving and advocacy

Students found the practical application of technical knowledge they gathered in the early years of their degree valuable. The design of the assessment means that students have to draw on units from across their studies including legal research and writing, torts, contract, evidence, alternative dispute resolution and professional conduct.

As a learning exercise, the assessment also has some ‘stretch’ goals on that knowledge outside the scope of the unit. The application of the technical rules is only the first step. Students have to engage with questions about the strategic management of information. It is one thing to have a technical answer to a question but another to identify how that problem might be resolved practically.

In terms of advocacy, there is explicit modelling and opportunities to practise persuasive advocacy. It was a revelation to one student that ‘the problems is much or more about the presentation of the facts than the law’.

Attention to detail and critical thinking

The design of the ‘case file’ and the opportunity to work with/opposite another pre-admission lawyer encouraged many students to engage critically with the materials. Information in the file may be missing, incomplete or badly worded. Consequently, in-class discussions about the content often demonstrated critical and inquisitorial skills such as ‘what if…’, ‘can we get…’ or ‘could I get from the other side…’.

Integrity and plagiarism

One of the unintended benefits of the assessment was it is almost impossible for any piece of assessment to be a replica of another. The division of the pre-admission lawyers into groups meant no two proceedings are absolutely identical.

It’s not all smooth sailing…

I continue to tweak the design in light of experience. However, there are some issues in designing a semester-long assessment in law that you need to be aware of.

It has to be done at the right time

The scenario assumes that all students enrolled in the core units in the recommended order. It allows them to apply their understanding of the law in an authentic context. However, this has and continues to present some obstacles.

Despite recommendations on the order students should complete units, some ‘short circuit’ their studies by enrolling in units at the earliest point in their studies. Secondly, students seem to assume that each unit is a ‘standalone’ body of knowledge they can forget once that unit is complete. Feedback from students continues to insist that there should be some form of recap.

Time commitment

Creating the assessment task is a significant amount of work. I have to create several items to provide the necessary authenticity. They have to be internally consistent and consistent with one another. At the same time, planned inconsistencies need to be maintained throughout the materials.

Resilience

The unit exposes students to new skills often for the first time. It is not uncommon for students to express dissatisfaction with the assessment because (in the words of one pre-admission lawyer) ‘I can’t just write a [damned] essay’ – a skill in which they excel. There is a limit to the scaffolding that can be provided in the semester but I provide as many opportunities for consultations and discussions outside class to support them.

Secondly, some high performing students struggle when confronted with new tasks other than essays. Substantial scaffolding and feedback are provided throughout the process. However, there is often one or two students lawyers who consider I have treated them unfairly.

While concerning, opportunities to test and develop resilience in pre-admission lawyers are invaluable. They usually provide incredibly important teaching moments. At the same time, it also makes some of the processes associated with scaffolding and marking more time consuming than they might be with a standard essay/quiz/exam assessment task.

Abbreviated timeframes

Designing a semester-long assessment in law has to be as authentic as possible. But the 13 week semester means that there are some processes I have to unrealistically abbreviate or omit entirely.

For example, the process of making offers to settle is restricted to a ‘one off’ attempt. In reality, that process can be lengthy and sometimes assisted by a third party. That cannot physically happen in the time available.

The assessment process can only pick up some of the steps in litigation, not all. For example, there is just not enough time to go through the process of discovery.

Summary

Although still far from perfect, designing a semester-long assessment in law provides the opportunity for pre-admission lawyers to not only ‘know’ what the relevant rules are but also to ‘do’ the tasks associated with them. It allows them to see how their broader knowledge base applies in practice as well as expanding what they already know into a new context.

About Andrew Henderson

I am a law school teacher in Canberra and a PhD candidate at the Australian National University, researching the 'hidden' or informal curriculum of law school. I am passionate about developing engaging and authentic educational experiences for law students.

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