Digital and Simulation in the Teaching of Law : Emerging from the Shadows

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Paul Maharg, Professor Australian National University College of Law and Director of PEARL (Profession, Education and Regulation in Law)

In a recent post on this blog Gina Alexandris outlines the approaches taken by Ryerson University in its Legal Practice Program.  It is an ambitious program, based on simulation methods of learning, teaching and assessment, and it brings together a focus on learning the law through doing law and communicating with clients, lawyers and others, in legal transactions.  However, there are no references to prior work or research in her post, so it might be helpful to recall the recent history of digital simulation in legal education.  For the sake of readability and brevity I’ve collected references on a public Zotero page, where you’ll also find full-texts as appropriate.

So when did digital sims in legal education begin?  Best place to track the heuristic is the systematic review of the literature undertaken by Maharg & Nicol (2014).  There, the authors trace the history and genealogy of sims, technology and legal education in over 40 years (1970-2012), and over a dataset of 123 items (included in the chapter).  They adopt Lisa Gitelman’s useful two-level model of media where ‘a medium is a technology that enables communication’ but which is also ‘a set of associated “protocols” or social and cultural practices that have grown up around that technology’ (Gitelman 2006). They also cite Jenkins’ observations that a medium’s content shifts according to the delivery technology (he gives the example of television displacing radio as a storytelling medium – Jenkins 2008).

We can see these movements at work in early sims.  Those examples, from the 1970s & 80s, involved computer-aided instruction and embedded AI programs; in the 1990s they tended to be replaced by interactive video (eg laserdisks) and sims that made use of early video conferencing applications as well as electronic casebooks that provided interactivity as well as extensive digital resources.  A significant shift in delivery platforms occurred around 2000 with the development of more powerful desktop computing that allowed for the creation and representation of multi-user online environments such as Second Life, virtual offices and case management systems (SIMPLE), and other custom-made interactive environments (Cassidy 2009).

With the change in medium came a shift in educational approach.  By the 2000s there is less instructivist emphasis, and more of a constructivist approach to simulation in law.  Abdul Paliwala at Warwick, Maharg and colleagues at Strathclyde, the Dutch projects of RechtenOnline and others elsewhere all worked with varieties of role play and simulation, in online or blended programmes, which were to a greater or lesser extent immersive, and which engaged students in what was for many of them a welcome change to a diet of lectures, tutorials and exams.  They also collaborated with each other in virtual firms and in a variety of online forums.

Our work at Strathclyde University really started in the mid-1990s at Glasgow Caledonian University in Glasgow where Karen Barton, Patricia McKellar and myself met and discussed ideas and practices, tried out mini-pilots.  But it was really the founding of the joint Glasgow Graduate School of Law by Glasgow University and Strathclyde University in 1999 and the merging of a single professional programme, the Diploma in Legal Practice, that shifted the needle.  Faced with the necessity of choosing either a Strathclyde approach or a Glasgow approach to the programme, I took neither: with my colleagues, we began to construct our own synthetic pedagogy, and our own practices in learning, teaching and assessing (Barton and Maharg 2006).  We drew upon others’ ideas, acknowledging them and adapting them – the shining example of John Dewey for instance in philosophy of education, the Realist movement in legal education in the US, the progressive education movement in England, the inspirational work by Sherry Turkle on MUDs and MOOs, by Lucy Suchmann on situated learning, Will Wright on SimCity and The Sims, and many others.  We learned from kindergartens and primary schools, from medical education, sports training, and the best of what law firms were doing in professional development.  Above all, ethical formation was essential: our aim was to prepare students for their future, but to assist society achieve its best future, too, through our students.

In 2006-8 we won over £200,000 to develop a simulation engine, called SIMPLE, Simulated Professional Legal Education, in which we developed a basic case management system linked to virtual firms and a map of a fictional town, Ardcalloch, which together with other functionality enabled the creation of realia for complex transactions.  Following Dewey and constructivist educators, we developed the concept of transactional learning, which we defined in our internal papers and publications as comprising the following seven traits –

active learning

through performance in authentic transactions

involving reflection in and on learning

deep collaborative learning, and

holistic or process learning,

with relevant professional assessment

that includes ethical standards.  (Maharg 2007)

Our project partners included the Departments of Architecture and Management Science at Strathclyde as well as the Law School; and the Law Schools of Warwick, University of South Wales, Northumbria and Stirling.  We were thus interdisciplinary, working across jurisdictions in the UK.  But we were international, too.  We collaborated with the Cyberdam project in the Netherlands, constructing an international simulation between the students at the universities of Utrecht and Strathclyde.  Throughout there was a commitment to Open practices – open-source code (www.simplecommunity.org), Open Educational Resources (OER – see the Simshare project, detailed at Priddle et al, 2010), and Open Research.  SIMPLE’s code was open source, and our publications published as far possible on open platforms.

All this and much more was documented in our 90-page SIMPLE Project Report (Gould et al 2008), numerous presentations, publications, and analyses of the learning gains achieved by students.  Karen Counsel in the University of South Wales, for instance, recorded a 10% improvement in the Torts examination results of her first year LLB students, when the only significant new factor was the replacement of an essay with a simulation (Counsell 2014, 153).   It suggested that simulation enabled students to better understand Torts as a conceptual domain, and to transfer that learning to an academic examination.

We used the sim engine to explore new understandings of how it affected learning, and how it changed our roles.  We became designers of education and our roles as academics gradually turned into something strange and exciting.  What about the simulations themselves – were they really ‘authentic’?  What did ‘authentic’ meant in the context of transactional learning (Barton, McKellar, Maharg 2006)?  Above all, we investigated how students learned in their virtual firms.  The outstanding work of Karen Barton and Fiona Westwood, for instance, analysed how student learning, trust, ethics and professionalism could fuse to help develop professional, ethical identities.  Here is their learning/trust matrix, created as a result of their qualitative analysis of the reflective reports produced by students upon the experience of working in their virtual firms.  Student achievement is mapped across four quadrants, measured by quality of learning and quality of trust:Barton & Westwood 2006, Learning/Trust Matrix.

In their second research article (Barton & Westwood 2011) they described in detail how they re-aligned teaching practices in key modules to ensure that more students occupied the high-learning high-trust quadrant of Learning Communities.  And having produced this research they used it with students to show them the benefits of aiming to be in the top-right quadrant, and how to achieve that.  The result, as they demonstrated, helped to transform our practices and student achievement.

Simulation is a marvellous way of learning law because it can be used in so many ways.  Other law schools are using sims to significant effect, globally.  In Hong Kong University’s Faculty of Law, Wilson Chow and Michael Ng have adapted SIMPLE as SMILE, and are achieving good results (Chow & Ng 2016).  In ANU, SIMPLE has been adapted as VOS, the Virtual Office System, and used simulation to great effect on their professional programme, the GDLP.  The research that has arisen from the use of simulation is rich and comprehensive, taking in student and professional wellbeing, curriculum design, professionalism, identity and much else (Ferguson 2015; Ferguson & Seul-gi Lee 2015).

In another direction, face-to-face simulations such as that used in Simulated Client projects are also having a significant effect.  Adapted from medical education, this approach to client-based learning in legal education was proved by a correlational study carried out in the Glasgow Graduate School of Law (Barton et al.  The approach has been adapted in OSCEs by the Solicitors Regulation Authority, and by many other law schools.  An independent study of its use in a two-year Bar exemption programme by, inter alia, two of the authors of the influential US Carnegie Report, Educating Tomorrow’s Lawyers, William Sullivan and Lloyd Bond, concluded that the exemption programme prepared students better than those students who continued with normal JD educational paths.  Using standardized simulated client interviews, students on the exemption programme outperformed lawyers admitted to practice within the last two years; and statistically, the only significant predictor of performance was participation in the programme (Gerkman et al, 2015).

How can we support student learning for such complex sims?  Consider a couple of short webcasts, say 10 mins each.  Imagine that the cases, legislation, ancillary documents, graphics, self-testing questions with branching feedback, commentary are available, clustered around the central figure of you, speaking to students, televisually.  Time-shifting, replaying, re-thinking, reading, discussing, all at the students’ pace, is possible.  Students can leave questions under their own names or anonymously, which will be answered by you or a tutor, the answers available to all.  Dialogue is possible there, as is coaching.  So is interactivity, amongst students, between students and staff, that we simply don’t have before: likes, dislikes, tags, shares, dubs, redubs, extractors, mashups, response-videos, comments on videos by students as per YouTube, splicing text with video, saving resources to exam questions, structuring, restructuring Open textbooks that have video embedded in them.  And these resources are sited only a few clicks away from the simulation environment.  All this functionality exists out there on the web.  We were doing early versions of it at Strathclyde back in 2004 (see Maharg 2007, chapter 9).  But we legal educators still use little of it in our courses: as William Gibson famously said, the future is already with us, it’s just not very evenly distributed (Gladstone 1999).

One future for simulation is to use vast datasets in our sim design and our communications design.  Kris Greaves’ article (Greaves 2016) is a recent and substantial analysis of how we could use data-rich environments to enable our students to learn.  For yet more evidence of big data’s reach, and how it can be used for the good, see this article from Wired.  The potential dovetailing of criminology and education is very powerful.  Imagine our students studying this as a case study, prior to a simulation: Big Data + (Becoming a Man + Ethical Practice + intensive tutoring).  It’s pure Dewey.  Or better still, imagine our students being educated to use Big Data in order to research and identify change moments for themselves, and thereby helping to dismantle, conceptually, the idea of Higher Education as a common good, as our liberal cultures have it, maybe seeing it as a privileged, gamed system that actually perpetuates inequality, and then beginning to do something about that.  And we haven’t even begun to discuss the immense potentials of virtual reality, augmented reality, gamification or workplace learning in the future of sim learning.

As we can see, all the functional elements of Ryerson’s LPP sims have been out there for at least 16 years, some of them probably much longer.  It’s not unique.  And in terms of the theory behind it, there’s at least a century of work on approaches to active learning that it embodies, since the publication of Dewey’s Democracy and Education, exactly a century ago.  But like all extensive use of sims in legal education, the LPP is still innovative, still disruptive, and it is so because, in Gitelman’s terms, its simulation environment is both a medium and the set of social and cultural practices that grows up around the medium. It is, in the words of Lee Shulman (another author of the Carnegie Report), a shadow pedagogy, one that challenges the hegemony of dominant or signature pedagogies, with their embedded social and cultural practices.  The simulation curriculum of the LPP is having that effect on Canadian professional legal education, as it does everywhere.  It’s time for simulation to emerge from the shadows.

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