A critique of the assessment of professional skills

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VIII Conclusion

Both Bond and Adelaide have developed skills programmes which allow the learning of substantive law to be placed in a practical context. At Bond this is done by embedding particular skills exercises in individual substantive courses. At Adelaide the skills courses are taught in conjunction with the substantive courses of Civil and Criminal Procedure and Introduction to Evidence and require demonstration of the substantive knowledge developed in those courses, as well as a general understanding of other areas of law relevant to the mock-trial scenario.

The professional skills programme at Bond, where professional skills are taught as components within substantive law subjects, creates an assessment environment in which professional skills are intimately linked to substantive law. However, the model of assessing different professional skills in isolation (or perhaps, one or two skills together, but others individually) restricts opportunities for the development of an ongoing ‘realistic’ professional environment. While each component assessment in legal skills may be representative of one part of professional practise, the maintenance of an ongoing realistic environment allows for the development of additional professional skills, such as strategic thinking and decision making. Without an ongoing role play or other exercise, it is difficult to see how such long term skills can be developed.

The teaching and assessment methods employed by both Adelaide and Bond arguably suffer in terms of reliability and practicality. Multiple assessments, marked by multiple academics (and, in the case of Adelaide, volunteers from various arms of the legal profession) necessarily means assessment is less reliable. In both Adelaide and Bond various initiatives aimed at achieving consistent marking have been implemented to address this problem. The number of assessments, and forms of assessment, also mean the skills courses are administratively burdensome and require large amounts of marking time. At Adelaide the portfolio assessment is particularly problematic in this regard. Each portfolio is often extremely bulky, as it provides students opportunity to present evidence in order to justify their decisions in the management of a ‘mock trial’. While this assessment has been chosen for reasons of validity (as one of the only assessment methods which will allow students to demonstrate deeper levels of understanding), it is arguably deficient in terms of reliability and practicality.

While the teaching and assessment methods employed at Adelaide and Bond are different, each seems to have its own strengths and weaknesses. Adelaide is arguably stronger in terms of the integration of professional skills teaching and assessment in a ‘realistic’ professional environment, in assessing deeper levels of understanding through portfolio assessment. However, Bond’s multiple assessments may improve reliability, and assist in developing cyclical learning patterns where students can use feedback from previous assessment to further develop their skills.

Both teaching and assessment regimes appear to be a compromise between various ideals which cannot entirely be reconciled, tempered by the practical realities of funding and teaching resources. It appears probable that the assessment criteria discussed in this paper cannot be reconciled to everyone’s satisfaction. If we assess any model of professional skills assessment based on its validity, reliability, alignment, integration and practicality, something will always be lacking. As stated by Chambers and Glassman ‘[a]lthough all…characteristics are desirable they cannot be simultaneously maximised – trade-offs are unavoidable’.42 This may also be true of substantive law subjects, but additional problems arise in the context of skills teaching because of the enormous range of professional skills, the difficulty of designing effective assessment methods for each of them, and the problems of creating assessments which will also give students the opportunity to demonstrate deeper skills. A consequence of these problems is that the teaching of professional skills is often expensive. Additional resources may permit some of the practical problems limiting the assessment of professional skills to be overcome, and also permit improvements in reliability (by funding academic assessment, or permitting a greater number of progressive assessments) and validity (by funding the marking of more time consuming and subjective assessments such as portfolios which may demonstrate deeper student understanding).

While I am unable to propose an ‘ideal’ assessment model for skills, the most significant issue appears to be that of practicality. I suggest that the preferred skills assessment regime is one in which students are able to receive regular feedback on their performance relevant to strict criteria from academics with specific training and experience in skills assessment. The assessments which students undertake should be explicitly related to the skills they are required to demonstrate. Where the appropriate assessment for a particular skill is one with an identifiable weakness (whether in terms of validity, reliability, alignment or integration), resources should focus on addressing that weakness. For example, if subjectivity and reliability are an issue in the assessment of oral presentations, resources should be provided to record the presentation. This would facilitate collaboration between markers and objective comparative assessment, and address some of the concerns.

Because skills learning must be about ‘doing’ the particular skill, the challenges of designing appropriate assessments which are affordable and practical are significant. Despite these problems, it is important that those involved in the teaching and assessment of skills remember that even if we cannot design a perfect assessment scheme, we need to ensure that there are adequate resources available to make the best compromise scheme work.
 * Lecturer, Law School, The University of Adelaide. The author is indebted to Bobette Wolski, Bond University, for her assistance.

 1 Robert Linn, ‘Assessments and Accountability’ (2000) 29(2) Educational Researcher 4, 14.

 2 Discussion of the importance of assessment in skills teaching can be found in Bobette Wolski, ‘Why, How and What to Practice: Integrating Skills Teaching and Learning in the Undergraduate Law Curriculum’ (2002) 52 Journal of Legal Education 287, 293.

 3 Sally Brown, ‘Assessing Practice’ in Sally Brown and Angela Glasner (eds) Assessment in Higher Education: Choosing and Using Diverse Approaches (1999) 95.

 4 John Biggs, ‘A Qualitative Approach to Grading Students’ (1992) 14(3) HERSDA News 3.

 5 Wolski above n 2, 289.

 6 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, AGPS (1999), 22 (recommendation 2) at 2 November 2007.

 7 Robert Canon and David Newble, Handbook for Teachers in Universities and Colleges (4th ed, 2003) 19.

 8 Marlene Le Brun and Richard Johnstone, The Quiet (R)evolution: Improving Student Learning in Law (1994); John Goldring, Charles Stamford and Ralph Simmonds (eds), New Foundations in Legal Education (1998); Christine Parker and Andrew Goldsmith, ‘“Failed Sociologists” in the Market Place: Law Schools in Australia’ (1998) 25 Journal of Law and Society 33, 48.

 9 Barbara De la Harpe and Alex Radloff, ‘Learning to be Strategic About Helping Staff to Increase Graduate Employability’ in Chris Rust (ed), Improving Learning Strategically (2001) 220, 223. See also Anna Reid, Vijaya Nagarajan and Emma Dortins, ‘The Experience of Becoming a Legal Professional’ (2006) 25 Higher Education Research and Development Journal 85.

10 Graham Gibbs, ‘Using Assessment Strategically to Change the Way Students Learn’ in Sally Brown and Angela Glasner (eds) Assessment in Higher Education: Choosing and Using Diverse Approaches (1999) 41; S. Alan Cohen, ‘Instructional Alignment: Searching for a Magic Bullet’ (1987) 16(8) Educational Researcher 16.

11 Wolski, above n 2.

12 Interview with Bobette Wolski, Bond University (telephone interview, 15 January 2007).

13 See eg, the United Kingdom Quality Assurance Agency for Higher Education (UKQAA) recommended that assessment practices should be valid, reliable, transparent, fair, timely, incremental, demanding and efficient: United Kingdom Quality Assurance Agency for Higher Education, Code of practice for the assurance of academic quality and standards in higher education, Section 6: Assessment of students — September 2006 (2nd ed) available from www.qaa.ac.uk at 9 October 2007.

14 Those criteria are validity, reliability, alignment with learning objectives, integration, and practicality. These criteria have been chosen because of their importance to both substantive and skills assessment, and because they are broadly recognised in the literature as extremely important.

15 Terry Crooks, Michael Kane and S. Alan Cohen, ‘Threats to the Valid Use of Assessment’ (1996) 3 Assessment in Education 265; Canon and Newble, above n 7, 168.

16 Canon and Newble, above n 7, 169; Wolski, above n 2, 293.

17 Wendy Harris and Melinda Shirley, ‘Assuring Quality in the Assessment of Negotiation Skills – A Case Study in the Teaching of Trusts’ (2002) 9(3) Murdoch University Electronic Journal of Law 1, 12.

18 Cees P.M. Van Der Vleuten, ‘The Assessment of Professional Competence: Developments, Research and Practical Implications’ (1996) 1 Advances in Health Sciences Education 41, 51.

19 Peter Knight and Mantz Yorke, Assessment, Learning and Employability (2003) 18–20.

20 Katherine Boursicot, ‘Setting the Standards in a Higher Education course: Defining the Concept of the Minimally Competent Student in Performance-based Assessment at the Level of Graduation from Medical School’ (2006) 60 Higher Education Quarterly 74, 79.

21 David Gijbels, Gerard van de Watering and Filip Dochy, ‘Integrating Assessment Tasks in a Problem-based Learning Environment’ (2005) 30 Assessment and Evaluation in Higher Education 73.

22 Karen Hinnet and Alison Bone, ‘Diversifying Assessment, Developing Judgement’ in Roger Burridge, Karen Hinett, Abdul Paliwala and Tracey Varnava (eds) Effective Learning and Teaching in Law (2002) 52, 55

23 Howard R. Sacks, ‘Student Fieldwork as a Technique in Educating Law Students in Professional Responsibility’ (1968) 20 Journal of Legal Education 291, 294.

24 Mark A. Baron and Floyd Boschee, Authentic Assessment: The Key to Unlocking Student Success (1st ed., 1995); Grant Wiggins, Educative Assessment: Designing Assessments to Inform and Improve Student Performance (1st ed, 1998).

25 Canon and Newble, above n 7, 171.

26 Knight and Yorke, above n 19, 108.

27 Ranald Macdonald and Maggie Savin-Baden, A Briefing on Assessment in Problem-based Learning (LTSN Generic Centre Assessment Series No 13, 2004) 13 at 2 November 2007.

28 Wolski, above n 2.

29 Wolski, above n 12.

30 Ibid.

31 Macdonald and Savin-Baden, above n 27.

32 Derek Rowntree, Assessing Students (1977).

33 Terry Carlson et al., ‘Implementing Criterion-referenced Assessment within a Multi-disciplinary University Department’ (2000) 19 Higher Education Research and Development 103, 110.

34 Wolski, above n 2, 298.

35 Wolski, above n 12.

36 Ibid.

37 Harris and Shirley, above n 17, 12.

38 Wolski, above n 2, 296.

39 Email from Bobette Wolski to Anne Hewitt, 19 January 2007.

40 Harris and Shirley, above n 17, 6.

41 Ibid 2.

42 David W. Chambers and Paul Glassman, ‘A Primer on Competency-based Education’ (1997) 5 Dental Education 651, 659.

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