Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 6 37 states: "Effectively, the Law Society of BC would be compromising what has been called a 'gold standard' of Can- adian legal skills training programs with an expensive and educationally inferior online testing model." The other dissenting voice in the debate comes from the Council of Cana- dian Law Deans. President Daniel Jutras, dean of McGill University's law school, has written to the federation request- ing clarification, saying: "It is unclear to us what precise issue or problem this proposal is designed to answer. Is it a failure of articling and the [Law Practice Program] to assess skills adequately? Is it something else? This proposal advan- ces an elaborate and expensive system of examinations and testing centres. It is important that that system be adapt- ed to a mischief (that) has been clearly identified and assessed. Otherwise, one risks both a mismatch of problem and response, and an undirected expansion of the mission." Like the LSBC, the law deans have expressed concern over how the scheme will relate to the continuum of edu- cation and, in particular, the type of testing proposed. While the propos- al clearly states: "Candidates will not be directly tested on those knowledge competencies . . . . that are also includ- ed in the common law degree national requirement," the CCLD states that the use of multiple choice for half of the examinations would appear to be adapt- ed to the testing of knowledge rather than skills. Jutras asks: "If indeed the purpose of the exams is to test skills, is the form of the assessment adapted to the purpose? . . . Cost and efficiency are certainly legitimate concerns, but one nevertheless needs to ask whether, in the proposed system, one would be getting what one was paying for." The push toward multiple choice for testing the first two phases is rais- ing eyebrows even in jurisdictions sup- portive of the project, but no one is wholly dismissive of it. Schonhoffer says: "Being old school, it concerns me, but the people who are experts at this say it's amazing what you can test, and very objectively, with multiple choice. I defer to the experts." Thompson has monitored developments around the world and in other professions and finds a growing acceptance of mulitiple- choice testing. "After taking professional advice, our assessment is that it is quite amazing the things they can accomplish through short-answer testing and mul- tiple choice. That psychometric advice is borne out by the experience in other professions. There has to be ongoing sophistication in how you approach it. The challenge is to apply current stan- dards that are psychometrically sound. To up your game is a very expensive procedure." There is also great uneasiness over the proposal to have principals assessing their articling students in phase three, given that it is widely understood that articling, being difficult to submit to quality control, can vary wildly in qual- ity. B.C.'s position is that evaluation by articling principals opens the process up to bias, unfairness, and inconsistency. Its report deplores "the inadequate assess- ment of the highest priority skills (e.g. advocacy, interviewing) by relegating them to online testing and to articling principals, who are not professional legal educators and where there would be no assurance of quality standards or psychometric defensibility. . . ." Another contentious aspect of the proposal is that the national assess- ments would not include provincial law and procedure. Some suggest a local exam could be added on to the national assessment if desired. Thomp- son is among those who are not too concerned. "The great thing about skills is that they are non-jurisdiction specif- ic. They are transportable, nationally and internationally. Frankly, they are the same skills in Nunavut, Alberta, or even Brisbane, Australia. This is one reason why there is a long tradition of sharing skills across Canada — which B.C. started with the first skills training course — and around the world." The LSBC, however, differs in its assessment. It asks, for example, how could a national assessment adequate- ly assess students who practise in a Torrens land registration system, or in wills and estates where the procedures and laws vary throughout Canada? The law deans believe that one merit of the existing law schools regime and through articling/LPP is that appropri- ate attention to variation among juris- dictions is already built into the system. The law deans also raise the question of governance of the system given that the FLSC's governance mechanisms are currently under review. The deans' council notes two themes in that review are whether there is sufficient participa- tion and oversight by the law societies and insufficient co-ordination among the federation's members. It notes: "This proposal envisages the establishment of another 'independent and skills based' governance body and (perhaps a separ- ate?) 'independent assessment agency.' How will the control and co-ordination of this initiative with other elements of the system be assured?" The LSBC report calls for the opportunity to propose options out- side the three-phase assessment model advanced by the steering committee. It suggests accrediting provincial and territorial bar admission programs on the basis of the national competencies, asking law societies to commit each in their own way to implementing the national competencies in their training and testing programs, or permitting law societies to opt in or out of components of the national assessments. Given the LSBC has come out so strongly against the proposed model, the federation is looking at whether other options need to be considered. "We've heard what some of the B.C. suggestions are," says Hirsch. "We need to decide if it's the council's desire to direct the steer- ing committee to explore other potential options before we proceed." The goal has been to have the first phase of the assessment ready for imple- mentation by 2018, but that is already looking ambitious. However, Thomp- son and Hirsch remain certain of the need for standardizing admissions and optimistic about its completion. "Noth- ing is cast in stone," states Thompson. "It's incumbent to maintain an open mind, open eyes and ears. There is lots of room for discussion." Hirsch agrees. "By necessity, although the law societies love their programs, they need to com- promise a bit to get a national approach, as they have successfully done in the past."

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