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Embedding employability inassessment: searching for thebalance between academiclearning and skills developmentin law: a case studyDavid Rigga

a Manchester Law School, Manchester MetropolitanUniversity, Manchester, UKPublished online: 28 Nov 2013.

To cite this article: David Rigg (2013) Embedding employability in assessment: searchingfor the balance between academic learning and skills development in law: a case study,The Law Teacher, 47:3, 404-420, DOI: 10.1080/03069400.2013.851337

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Embedding employability in assessment: searching for thebalance between academic learning and skills development in

law: a case study

David Rigg*

Senior Lecturer in Law, Manchester Law School, Manchester Metropolitan University,Manchester, UK

Employability related indicators and measurements are now a fact of life forUK law schools. Despite the omnipresent spectre of the employabilityagenda, there has been relatively little consideration given to the relation-ship between assessment and employability. The traditional teachingmethod used at law schools relies heavily on participatory small groupteaching. This lends itself to developing oral communication skills. Surveysof employers show oral communication to be one of the most highlyvalued employability skills. Research, however, suggests that law studentsdo not feel that oral communication skills are given enough emphasis onlaw programmes. Using the example of a new approach to assessment ofthe European Law module at the University of Bolton, which adopts an oralassessment alongside a traditional written exam, consideration is given tothe benefits and practicalities of embedding employability in assessment.The extent to which this approach can be reconciled to liberal ideals isconsidered alongside pedagogical rationales for the assessment. In the finalsection, the article goes on to analyse student feedback on their perceptionof different assessment methods and employability. The article concludesby suggesting that, by focusing on pre-existing features of a liberal legaleducation, employability can be successfully embedded in assessment.

Introduction

Law schools can now be directly compared for statistics on a wide range ofinformation about their graduates, such as average salary six months aftercompleting the course, average salary 40 months after completing the course,and whether the graduate is now employed in a professional or managerialposition.1 The prominence of employability and earnings related indicators incontemporary higher education discourse places new pressures on law schools.The age of the employability agenda has necessitated a rethinking of howteaching, learning and assessment activities are organised to satisfy the dual

*Email: d.rigg@mmu.ac.uk1See http://unistats.direct.gov.uk/Compare-Courses and http://university.which.co.uk/compare(accessed 17 June 2013).

The Law Teacher, 2013Vol. 47, No. 3, 404–420, http://dx.doi.org/10.1080/03069400.2013.851337

© 2013 The Association of Law Teachers

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function of providing a liberal legal education while facilitating student andexternal expectations of employability. Universities adopt many differentapproaches to employability provision. These can range from optional andoften ad hoc activities at university level, to highly organised credit bearingcompulsory activities at programme level. Law schools generally reflect thisheterogeneous approach, with many now taking an increasingly creativeapproach towards embedding skills within their programmes.

A number of studies have indicated the high value which employers attachto oral communication skills in graduates.2 Teaching and learning activities onLLB courses already lend themselves to the development of oral communica-tion skills. The small group tutorial which encourages extended discussionbetween students and tutors is a mainstay of undergraduate law degreeseven in these straitened times. Yet, despite the prominence of oral commu-nication as a teaching and learning method, written activities still tend todominate the assessment regime. This is partly due to professional bodies’requirements. It is also recognised by the Quality Assurance Agency SubjectBenchmark for Law which states that:

Law students are expected to be good at both written and oral communication.Whereas written communication is assessed heavily by formal examinations, oralcommunication is demonstrated by a variety of compulsory and voluntary activ-ities, e.g. tutorial performance or mooting.3

This is a missed opportunity to seamlessly integrate employability and skillsinto the degree course as well as being pedagogically unsound due to theresulting dissonance between teaching and learning activities and assessmentactivities.

In 2012 the assessment of the European Law module on the LLB degreeat the University of Bolton, my previous institution, was changed to include a10-minute oral assessment alongside a two-hour written exam. The change wasmotivated by three primary factors: to embed aspects of employability withinthe assessment regime; to diversify the assessment regime; and to achievegreater alignment between teaching, learning and assessment activities. Thechange raises questions about the relationship between liberal education andemployability which is discussed in further detail below. Is it possible, or even

2See, for example, W. Archer and J. Davison, Graduate Employability: What Do Employers Think andWant? (London, The Council for Industry and Higher Education, 2008) available at http://www.cihe.co.uk/category/skills/ (accessed 17 June 2013) and K. Lowden, S. Hall, D. Elliot and J. Lewin,Employers’ Perceptions of the Employability Skills of New Graduates (London, Edge Foundation,2011) available at http://www.edge.co.uk/media/63412/employability_skills_as_pdf_-_final_online_version.pdf (accessed 17 June 2013).3Subject Benchmark Statement: Law (Gloucester, Quality Assurance Agency for Higher Education,2007) available at http://www.qaa.ac.uk/Publications/InformationAndGuidance/Pages/Subject-benchmark-satatement-Law-2007.aspx (accessed 17 June 2013) at p. 10.

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desirable, for modules to be delivered, in the words of Harvey, through a“holistic approach that embeds employability as part of academic learning”?4

Students were invited to participate in a small-scale survey to providefeedback for an action research project. In particular, the students were askedabout their view on the link, if any, between employability and assessmentactivities. These results are analysed below and provide empirical evidence onstudent perceptions of the role of employability in assessment.

Employability and the law degree

The concept of employability is open to many different interpretations. Yorkedefines employability as “a set of achievements – skills, understandings andpersonal attributes – that makes graduates more likely to gain employmentand be successful in their chosen occupations, which benefits themselves, theworkforce, the community and the economy”.5 He accepts that the definitioncan be problematic and that it does not take into account the various extra-neous socio-economic variables which determine whether employability canbe converted into employment. The extent to which a degree can or, indeed,should develop those “skills, understandings and personal attributes” is open toconsiderable debate. Harvey criticises what he terms the “magic bullet” modelof measuring employability in higher education where “there is a presupposedcausal link between the employability-development opportunities and the indivi-dual employability of the graduate”.6 This arguably crude and simplistic measureof employability is reflected in league tables which commonly measure HigherEducation Institutes (HEIs) against the number of their graduates employed ingraduate jobs. League tables, however, fail to take into account those myriadfactors which are critical to employability but which are beyond the control ofthe individual university, such as personal attributes and characteristics, institu-tional reputation and regional economies. They also tend to prejudice thoseHEIs which attract an atypical student body who might find it harder to gaingraduate employment due to long-standing social inequalities. This can resultin a self-perpetuating cycle which leaves the, usually, newer, widening partici-pation universities marooned at the wrong end of league tables.

The Higher Education Student Employability Profile for Law consists of anon-prescriptive list of 20 abilities which a graduate with an Honours Bachelor’sdegree in Law should be able to demonstrate.7 These range from abilitieswhich could be said to be unique to a law graduate, such as the ability to

4L. Harvey, “Embedding and Integrating Employability” (2005) 128 New Directions for InstitutionalResearch 13 at p. 15.5M. Yorke, Employability in Higher Education: What It Is – What It Is Not, Learning and EmployabilitySeries (York, Higher Education Academy, 2006) at p. 8.6L. Harvey, “Defining and Measuring Employability” (2001) 7(2) Quality in Higher Education 97 atp. 101.7C. Rees, P. Forbes and B. Kubler, Student Employability Profiles (York, Higher Education Academy,2007) at p. 97.

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“demonstrate an understanding of the principal features of the legal system(s)studied”, to the more general and unspecific ability to “reflect on own learningand proactively seek and make use of feedback”. Some of the abilities arecouched in rather outmoded terms such as “use the world wide web andemail”. In the increasingly complex and fragmented legal services market, theremight also be a case made for further additions to the list, such as commercialawareness. There is at least one surprising entry on the Employability Profile:“produce word-processed essays and text and to present such work in anappropriate form”. Aside from the rather obsolete inclusion of “word-processed” (how many law teachers have received a handwritten piece ofcoursework recently?) and the emphasis on “essays” (how many employersrequire students to produce essays on a regular basis?), this entry is surprisingin that there is no corresponding entry to recognise the ability of a lawgraduate to communicate orally. Indeed, the 20-strong list is completely silenton oral communication skills.

In so far as the Employability Profile can be divided into intellectual skillsand practical skills, there is no place for oral communication but there is a placefor, inter alia, “work in groups as a participant who contributes effectively to thegroup’s task” and “identify and retrieve up-to-date legal information, usingpaper and electronic sources”. The omission is entirely at odds with researchsuggesting that employers highly value oral communication skills in graduates.Any argument that such skills are better developed on vocational coursesignores the fact that students expect to be equipped with transferable skillsregardless of whether they go on to the vocational stage.

Development of communication skills on the undergraduate law degree

A number of studies have considered which skills are most highly prizedby employers. Archer and Davison found that communication skills wereranked as the most important of 10 generic skills when recruiting newgraduates.8 Law teachers might be depressed to hear that the same studyranked literacy (good writing skills) as eighth and analytical skills as theleast important. In Hardee’s detailed 2012 study of the career expectationsof law students, respondents were asked to rate how much emphasis hadbeen placed on 13 elements of their legal education.9 Students reportedthat the most emphasis had been placed on knowledge and understandingof the law, followed by independent learning (second) and problem-solvingskills (third). Interestingly, general oral communication skills was placed at11 out of 13 in front of only career planning (12th) and legal practice skills(13th). When the participants were then asked how much emphasis should

8Archer and Davison, supra n. 2 at p. 7.9M. Hardee, Career Expectations of Students on Qualifying Law Degrees in England and Wales (HardeeConsulting, Higher Education Academy, 2012) available at http://www.heacademy.ac.uk/assets/documents/disciplines/law/Hardee-Report-2012.pdf (accessed 17 June 2013) at p. 77.

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be placed on the same 13 elements of legal education, general oralcommunication skills was ranked number 5.10 The participants were thenasked how much emphasis should be placed on the same 13 elements oflegal education if students had to pay tuition fees of at least £7500. Themajority of respondents regarded all elements except use of informationtechnology and other as requiring substantially more emphasis.11 In rank-ing order, respondents considered that legal practice skills (first), generaloral communication skills (second) and career planning (third) were the topthree requiring greater emphasis if tuition fees of £7500 became payable.Sixty-eight per cent of respondents thought that general oral communica-tion skills required greater emphasis if students were asked to pay £7500tuition fees.

The results of Hardee’s study may come as a considerable surprise to manylaw teachers. The most common method of delivering teaching and learningon a law degree remains the large group lecture which is then followed by amore participatory small group session in which students are expected todiscuss the subject matter in greater detail. It is sobering to think that we aslaw teachers spend so much time trying to encourage interaction in seminarsand tutorials and that this might be regarded as insufficient by students. Knighthas written that employability provision in the curriculum is often about mak-ing the tacit explicit.12 Given the importance attached to communication skillsby employers and students alike, it is surprising that assessment in law is stilloverwhelmingly in the form of written exams and assignments. Although thereare many examples of individual modules in law schools being examined byway of mooting or presentations, these are still the exceptions to the rule. Byincreasing the opportunities for oral assessments it is possible that students willperceive a greater emphasis on the development of oral communication skillsby virtue of their inclusion in assessment.

The liberal law degree

At a time in which teaching and learning activities are increasingly participatoryand learner-centred, modes of assessment on undergraduate law degreesremain overwhelmingly traditional. Bradney has recognised that “an importantelement of the signature of the systems of university law schools that exist inthe United Kingdom is the fact that, in the main, they pursue a liberal educa-tion. This is a long-standing feature of United Kingdom legal education distin-guishing it from those jurisdictions where law schools are seen as primarily

10Hardee, supra n. 9 at p. 79.11Hardee, supra n. 9 at p. 83.12P. Knight and ESECT Colleagues, Briefings on Employability 3: The Contribution of Learning,Teaching, Assessment and Other Curriculum Projects to Student Employability (York, LTSN GenericCentre, 2003) at p. 3.

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vocational in nature”.13 Precisely what a liberal legal education is has been thesubject of extensive analysis which it is not proposed to rehearse at lengthhere. Burridge and Webb suggest that “the mission of the liberal law school isthe preparation of ‘good citizens’ or ‘better persons’ rather than (simply) goodlawyers”.14 Cownie has observed that “the notion of a liberal legal education isstill broadly conceived and has not yet been analysed in terms of the educa-tional model to which it should aspire”.15 In the tradition of John HenryNewman’s The Idea of a University, the liberal legal education is associated forthe purpose of this article with the concept of knowledge as an end in itselfand the rejection of a purely instrumental approach to education.16 In thewords of Pue:

the values of liberal education derive from the value commitments of the liberalstate. Organized around principles such as respect for civil rights, individualautonomy, freedom of speech, thought, movement and religion, such statesadopt a permissive or encouraging attitude toward associational life outside ofthe state’s control.17

The two-tier nature of legal education in the UK, with an academic stage and avocational stage, can give rise to a stultifying effect on innovations in under-graduate legal education. There is an understandable temptation when pre-paring undergraduate teaching, learning and assessment activities to assumethat certain skills are more properly developed at the vocational stage. Theobvious examples are advocacy, interviewing, negotiation and the drafting oflegal documents. With students being encouraged to express increasinglyconsumeristic tendencies in the higher education marketplace aided by theavailability of league tables and specialist comparison websites such as the KeyInformation Set data, they are faced with a vast amount of literature to helpgauge their prospects if they were to study at University x as opposed toUniversity y.18 Students are able to compare graduate earnings at the click ofa button and research is being undertaken to consider the possibility ofmapping graduate earnings against student loan repayment histories with aview to applying different interest rates dependent on the university attendedand course studied.19 The QAA website itself introduces the employabilitysection in the following way:

13A. Bradney, “Elite Values in Twenty-First Century, United Kingdom Law Schools” (2008) 42(3) TheLaw Teacher 291 at p. 291.14R. Burridge and J. Webb, “The Values of Common Law Legal Education: Rethinking Rules,Responsibilities, Relationships and Roles in the Law School” (2007) 10(1) Legal Ethics 72 at p.74.15F. Cownie, “The Importance of Theory in Law Teaching” (2000) 7 International Journal of the LegalProfession 225 at p. 237.16J.H. Newman, The Idea of a University (Notre Dame, IN, University of Notre Dame Press, 1982 [1873]).17W. Pue, “Legal Education’s Mission” (2008) 42(3) The Law Teacher 270 at p. 270.18Supra n. 1.19See http://www.guardian.co.uk/higher-education-network/blog/2013/jun/17/rothschild-report-student-loans-risks (accessed 17 June 2013).

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With an increasing tendency to see higher education as a product with a pricetag, there is understandably growing interest in the extent to which academicprogrammes of study promote students’ employability and earning power.20

The availability of employability related data in higher education might havechanged forever the way in which students choose between universities andcourses. These changes may well provide an existential challenge for someinstitutions. With this in mind, law schools are becoming far more creative intheir delivery of skills teaching and increasingly recognising that employabilityand skills development need not necessarily stop at the door of the examroom.

To ignore the greater focus on employability as an integral part of a degreecourse is a luxury few but the most elite universities can afford. Yet it would becondescending in the extreme to assume that students should only concernthemselves with a liberal undergraduate education. It would also ignore harsheconomic reality; as Pue notes, “casual disregard for the long-term balance ofcosts and financial benefit is attainable only by the most unworldly or the mostwealthy”.21 It is a challenge for all academic stage lecturers to find the balancebetween providing a liberal legal education and providing a broader groundingin vocational or employability related skills. The real difficulty lies in charting acourse between the liberal ideal and the vocational reality which upholds theintegrity of the subject matter and forecloses any potential “dumbing down”criticism.

Most academic stage lecturers would agree that oral communicationskills should be developed on the undergraduate degree but many may beless inclined to accept they should be assessed there. As noted above, theclear distinction between academic and vocational stages in UK legal educa-tion can encourage territorialism. There are also very valid arguments thatacademic stage lecturers may feel they do not have the resources to overseeoral assessments for a large undergraduate cohort. However, by developingoral assessments there is an opportunity to maintain academic rigour andpreserve the hallmarks of a liberal education, whilst developing key employ-ability skills as a benign by-product. The embedding of employability as apart of academic learning can also avoid the consequence, identified byCarrington, that:

the isolation of skills training in special courses which separates skill from legalcontent may risk the unintended consequence of reinforcing the tendency ofsome students and lawyers to think cynically of their craft, to regard it as themastery of the arts of interpersonal manipulations. To the extent that this is aconsequence, contemporary humanistic skills training may be at risk of backfiring,

20http://www.qaa.ac.uk/AssuringStandardsAndQuality/Pages/employability.aspx (accessed 17 June2013).21Pue, supra n. 17 at p. 280.

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and contributing to the very self-aggrandizing tendencies of lawyers whichgive to the desire to deprofessionalize.22

Embedding employability in assessment

Studies show assessment methods to be one of the main concerns of studentswhen approaching learning: “assessment drives learning… and what we assessaffects what students find important”.23 Students are similarly motivated byhow we assess them. They perceive certain methods of assessment to be morerelevant to their development than others. As Ramsden observes, the assess-ment is the curriculum as far as students are concerned.24 Written examinationsremain the dominant form of assessment on law programmes. This is driven bythe professional bodies’ regulations which stipulate that LLB foundation sub-jects must be assessed in some part by a summative written examination. TheQuality Assurance Agency Subject Benchmark Statement for Law implicitlyrecognises that oral communication is likely to be demonstrated in morediverse contexts than the formal examination.25

The curious consequence of the Benchmark Statement is that law gradu-ates are expected to be good at written and oral communication, but are onlycertain to be formally examined on their written communication skills. Thetypical teaching model at law schools involves the expository lecture followedup by the more participatory small group tutorial. During tutorials a greatamount of time is spent developing students’ oral reasoning and communica-tion skills. Despite the prominence of oral communication as a teaching andlearning method on law degrees, the Benchmark implicitly recognises thatformal assessment activities are more likely to assess written communication.This results in a startling dissonance between teaching and learning activitiesand assessment activities. Biggs’ principle of constructive alignment holds thatlearning outcomes, activities and assessment should all be mutually reinfor-cing.26 It seems curious that so much time is spent developing oral commu-nication skills in law but without necessarily assessing them. Many law schoolsare now using oral assessment methods in certain modules but the writtenexamination and/or written coursework remain by far the most commonassessment methods.

When the decision was taken to use oral assessments at the University ofBolton, it was recognised that the teaching and learning methods must be

22P. Carrington, “Civil Procedure and Alternative Dispute Resolution” (1984) 34 Journal of LegalEducation 298 at p. 300.23K. Hinett and A. Bone, “Diversifying Assessment and Developing Judgement in Legal Education”,Ch. 3 in R. Burridge, K. Hinett, A. Paliwala and T. Varnava (eds), Effective Learning and Teaching in Law(London, Kogan Page, 2002) at p. 54.24P. Ramsden, Learning to Teach in Higher Education (London, Routledge, 1992).25Quality Assurance Agency for Higher Education, supra n. 3.26See J. Biggs, Teaching for Quality Learning at University (Buckingham, Open University Press/Societyfor Research into Higher Education, 2003).

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closely aligned to the new assessment. Given the amount of time already spentdeveloping communication skills in tutorials, this was not an onerous task. Ashort time was spent each week discussing effective presentation and oralcommunication skills. In this way the new assessment method became a part ofthe teaching and learning strategy but without compromising any of the coreknowledge and understanding of the subject.

Each week students had to prepare work which mirrored the format of thesummative presentation with different students being chosen to take part in aformative oral assessment in front of their peers in the tutorial. This allowed forformative assessment to be integrated into the teaching and learning activities.The students were explicitly instructed that tutorial work should be viewed asformative assessment.27 Research by Fuchs and Fuchs has shown that strength-ening the practice of formative assessment can produce significant, and some-times substantial, learning gains.28 It is the experience of the author thatattendance at tutorials increased and students came better prepared.Wolstencroft and Van Zwanenburg highlight that the very fact of assessmentfocuses the mind and improves both attendance and motivation.29 This mightbe because the students could see greater alignment between formative andsummative assessment and thus viewed the tutorials as more relevant to theirlearning. Students were able to receive immediate feedback on their tutorialperformance from tutors and peers. By providing feedback throughout thesemester and in front of the whole tutorial group, students were able to benefitfrom ongoing feedback which was directly aimed at maximising their finalsummative assessment performance.

Diversification of assessment in action

Alongside embedding employability and aligning teaching, learning andassessment methods, a further major motivation when devising the newassessment was to diversify the assessment regime. Hitherto, assessment onthe LLB had been largely traditional with most subjects being assessed by amixture of exam and written coursework, or solely by written coursework. Thecoursework was sometimes accompanied by a requirement that the studentcomplete a personal development plan, or PDP, for a reasonably small percen-tage of the available marks. PDPs can take many forms but are intended to be areflective tool helping the student to review developments to date, identifynew learning needs and make plans to meet identified needs.30 All LLB

27See, for example, P. Black and D. Wiliam, “Assessment and Classroom Learning” (1998) 5(1)Assessment in Education: Principles, Policy & Practice 7–74.28L. Fuchs and D. Fuchs, “Effects of Systematic Formative Evaluation: A Meta-Analysis” (1986) 53Exceptional Children 199–208.29T. Wolstencroft and N. Van Zwanenburg (1989) Broadening the Curriculum: A Case-Study of Non-Law Subjects in Law Degrees (Development Services Briefing 19, CNAA, London, 1989).30P. Knight and M. Yorke, Assessment, Learning and Employability (Maidenhead, Open UniversityPress, 2003) at p. 155.

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students already had experience of one oral assessment on the first year “LegalSkills” module which was in the form of a moot. An assessment regime whichrelies upon only a few methods of assessment is likely to benefit some studentsat the expense of others. Put simply, we are not all good at writing exams.Knight has observed the power inherent in the assessment system:

What we choose to assess and how shows quite starkly what we value …Assessment systems advantage some learners and disadvantage others.31

European Law had previously been delivered as a 20-credit third year moduleand assessed by way of a written assignment of 2000 words for 40% of the finalmark, and a three-hour exam for 60% of the final mark. Following reaccredita-tion of the LLB in 2012, European Law was moved into the second year and theassessment changed to a 10-minute oral assessment for 30% of the mark and atwo-hour exam for 70% of the mark. The rationale for moving the module tothe second year was to reduce the number of foundation LLB subjects in thefinal year and allow for more option modules. In Semester 1 (2012/2013),European Law was delivered separately to both the second year (new assess-ment regime) and third year cohort (old assessment regime). This provided theopportunity to survey students on their perceptions of employability andassessment.

The choice of an oral assessment was explicitly made to diversify assess-ment and to further embed employability skills in the LLB assessment regime,in this case verbal reasoning and communication. It was decided not to use apresentation structure because this can tend to favour declarative knowledgeover understanding and also carries with it the danger of valuing style oversubstance.32 We were also keen to minimise the opportunity for students toheavily rely on notes or a script. Instead the students were given around fourweeks to research and analyse a statement (“Since the Treaty of Lisbon thedemocratic deficit is no longer a concern in the European Union”). On the dayof the presentation they were invited into the exam room in pairs and advisedwhich student was to argue in favour of or against the statement. Each studentwas then given 10 minutes to present their argument.

The students were encouraged to make an opening statement for up to fiveminutes before the two assessors began to ask questions designed to testknowledge and understanding. Students were questioned rigorously and chall-enged to justify their arguments. As this was not in the form of a moot, thesecond student was not specifically required to respond to the first student’spoints, or vice versa. Students who initially adopted a narrative or descriptiveapproach were challenged by questioning to take a more analytical approach.It is the view of the writer that the structure of the assessment created an

31P. Knight (ed.), Assessment for Learning in Higher Education (London, Kogan Page, 1995) at p. 14.32Knight and Yorke, supra n. 30 at p. 79.

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environment which supported deep approaches to learning and minimisedsurface-learning approaches:

Students adopting a surface approach tend to focus on the reproduction ofinformation in a manner largely driven by assessment requirements. They treatfacts and concepts unreflectively and fail to distinguish the underlying principlesof the task. Deep learning, by contrast, involves the student in attempting tomake sense of the learning experience by integrating and applying knowledgerather than simply repeating it.33

To develop skills in legal drafting and avoid any suggestion of a memory test,students were permitted to prepare a brief skeleton argument which wasunassessed. Those who slavishly clung to their skeleton were challenged to“think on their feet” and questioned about other aspects of their argumentrather than allowed to simply stick to a plan. In most cases, after the initial stagefright and insecurity, students began to think creatively about the subject matterand moved away from overly narrative or factual responses. This enabled theassessors to pick students up on some points which appeared to be misunder-stood and also to probe the students on the depth of their understanding byraising other issues and debates in the area. Indeed, in some cases, a thought-provoking dialogue ensued between assessor and student which could happilyhave continued far beyond the 10-minute assessment duration.

The majority of students responded well to the challenge but some falteredunder the pressure and were unable to formulate responses without reviewingtheir notes. With these students we asked simple questions which weredesigned to build their confidence and encourage them to think on theirfeet. One student was very upset and left the room in tears but then composedthemself and came back in and performed well.

The questions asked by the assessors were unstructured in so much as theydid not follow a prepared format. Although unstructured questioning can beviewed as less reliable, it enabled the assessors to adapt the questioning to theindividual student and also created an element of surprise, lest rumours shouldcirculate amongst other students about the questions being asked. For exam-ple, if a concern arose that a student had a serious lack of knowledge orunderstanding, closed factual questions could be used to test this.Meanwhile, the stronger students were pushed with more open questioningrequiring skills of analysis and evaluation. When asking questions we ensuredthat students were given sufficient “waiting time” to answer before we inter-vened. Rowe has found that by increasing “waiting time”, student responsestend to be longer and more confident.34

33R. Grimes, “The Theory and Practice of Clinical Legal Education”, Ch. 5 in J. Webb and C. Maughan(eds) Teaching Lawyers’ Skills (London, Butterworths, 1996) at p. 145.34M. Rowe, “Wait Time and Rewards as Instructional Variables: Their Influence on Language, Logic,Fate and Control” (1974) 11(2) Journal of Research in Science Teaching 81–94.

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The grading of skills in an undergraduate assessment is problematic. Thereis an arguable case that the more appropriate place to deliver a discrete verdicton competence in skills is at the vocational stage where students receivespecialist instruction from practitioners. To introduce discrete assessment oforal communication skills on the LLB may negatively affect confidence.35

However, to ignore the element of competency altogether would be to reducethe oral element of the assessment to merely symbolic status. It might alsodiscourage students from focusing upon the development of the skill itself. Forthis reason, 10% of the marks available were for communication skills.

An advantage of the assessment was that detailed verbal feedback wasprovided quickly after the assessment. The two assessors individually consid-ered their notes after each pair had left the room and a generic feedback formwas then completed. The second assessor provided immediate moderation.Each student was invited individually back into the assessment room andprovided with detailed verbal feedback and a provisional mark. The studentswere also provided with a provisional written feedback form. Each student wassound recorded for external moderation. It took around 40 minutes to assess,internally moderate and provide feedback to each pair of students. With acohort of 54 students, this equated to two full working days with minimalbreaks. The institutional arrangements in larger law schools might make theorganisation of such an assessment considerably more onerous. It is the view ofboth myself and the other internal assessor that, as well as being an ultimatelyworthwhile and rewarding exercise, it was also a daunting task to organise andvery tiring to execute.

Research methods and findings

In March 2013, a piece of small-scale research was carried out to explorestudent perspectives on the link between the assessment methods inEuropean Law and employability. The study was undertaken as part of anaction research project intended to implement a change in assessment meth-ods on the law degree. Action research is defined by Kemmis and McTaggart as:

a form of collective self-reflective enquiry undertaken by participants in socialsituations in order to improve the rationality and justice of their own social oreducational practices, as well as their understanding of these practices and thesituations in which these practices are carried out. 36

It is often characterised as a cyclical process whereby a focus for research is firstidentified. Next, following theoretical research and fact finding, a suitable action

35A. Boon , “Skills in the Initial Stage of Legal Education: Theory and Practice for Transformation”, Ch.4 in Webb and Maughan, supra n. 33, p. 126.36S. Kemmis and R. McTaggart, The Action Research Planner (Geelong, Deakin University Press, 1988)at p. 1.

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is planned and implemented. The efficacy of the intervention is evaluated andthis might then inform a revision of the initial action and iteration of the cycle.This could be repeated a number of times as new problems or opportunitiesare perceived.

The data was collected from students studying the European Law 20-creditmodule in the second year and third year. The sample size for the questionnairewas 84 (54 second year and 30 third year students). The questionnaire wascompleted by 28 students in total (16 second year and 12 third year) whichamounted to a 33.33% completion rate (29.62% of eligible second year stu-dents and 40% of eligible third year students). Participation increased amongstthird year students. This in itself is of interest and may suggest that final yearstudents are more confident in expressing their views or are more engagedwith their studies as they reach a critical point in their university careers.37

The questionnaires were handed out during the break of a lecture in thefollowing semester and collected at the end of the lecture. Students wereadvised that the purpose of the research was to consider their views on thelink between assessment and employability. To aid the students, they wereprovided with Yorke’s definition of employability.38 The questions wereintended to, first, provide a general overview of why students preferred certainmethods of assessment over others by asking students to pick their preferredmethod and explain their choice (written examination, oral assessment, writtenassignment, PDP). Then students were asked to explain how, if at all, each ofthe four methods of assessment addresses employability skills. In light ofpedagogical research on assessment diversification, students were also askedfor their views on whether assessment should be by one or more methods andto explain their reasoning. To enhance the opportunity for students to explaintheir responses in detail, I decided against using the Likert scale. It is recognisedthat it was a small cohort and a relatively low response rate. Students wereadvised of the voluntary nature of their participation. Although the third yearcohort were being assessed on the “old” regime, they did have experience of asimilar oral assessment which takes place on the compulsory first year “LegalSkills” module.

What is your preferred method of assessment? Please circle one choice.Explain the reason for your choice

The explanations given were particularly illuminating. When asked toexplain the reason for their choice, 13 (76.47%) of those students who chose

37A. Tymon, “The Student Perspective on Employability” (2011) Studies in Higher Education,doi:10.1080/03075079.2011.604408 1–16.38Yorke, supra n. 5.

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(c) Written assignment mentioned that this method allows more time toresearch and is a less stressful method.

I find it much easier and less stressful than exams.

I feel you are under less pressure as there is time to plan and prepare your essayalbeit within a specified time period.

It gives you more time to demonstrate your abilities; there isn’t a short time limitlike in exams therefore you’re likely to demonstrate a wider range of knowledge.

I have a poor memory and tend to write as I think so I get time to reorganise essaystructure as I write.

The remaining students were more conscious of the skills developed throughassignments:

Develops analytical and written skills needed for employment and how to presentan argument in written form.

Shows research skills and how to form an argument.

A further student noted that:

Get feedback fairly quickly on assignments so you know what you’ve done welland what you need to work on in the future.

Some responses focused more on how a written assignment differs from anexam and highlighted that a written exam is more of a memory test and isremoved from how you might be expected to work in a “real life” situation:

There is a vast amount of information to take in when studying a module; anexam is more of a memory test. In practice you will have access to books, etc., asyou do with assignments.

Table 1. What is your preferred method of assessment? Please circle one choice.

2nd year (as a% of 2nd yearresponses)

3rd year (as a %of 3rd yearresponses)

Total number ofresponses (as a % ofthe total number)

(a) Written exam 4 (25%) 3 (25%) 7 (25%)(b) Oral assessment 3 (18.75%) 1 (8.33%) 4 (14.2%)(c) Written assignment 9 (56.25%) 8 (66.66%) 17 (60.71%)(d) Personal development

plan/diary PDP0 0 0

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Examinations are not a true test of students’ understanding. Personal circum-stance, environment, health and other factors influence or make results.

By contrast, the 25% of students who preferred (a) Written exam were largelydriven by the notion that exams are a more accurate assessment of knowledgeand application:

Exams show if a person has studied the topics and I believe are more rewarding;in presentations people tend to get nervous and can’t show their full ability.

Exams are the best way to show your knowledge as people get nervous inpresentations and may not perform as well even if they have the knowledge.

Helps to actually assess what has been studied for so long.

A good way of testing knowledge.

Your understanding is tested and you must understand the module clearly.

However, two of the students who preferred exams took a more instrumentalapproach:

I perform better in exams than I do in any other assessment.

Under pressure I work better.

The four students who chose (b) Oral assessment appeared to be influenced bytheir perception of the method as more closely aligned to “real life” situationsand valuable as a skill in itself:

Get the best results. More applicable to real life situations.

In a presentation you can justify what you’ve said and cover uncertainties oncequestions are posed. Also it enhances your confidence to speak and is essential inenhancing advocacy skills.

Shows a true understanding of the subject matter. Also under cross-examinationshows what you don’t know and if you are wrong about a part or aspect of law.

Presentations force students to not only learn certain information but also tocommunicate it to others which is the most desirable skill in the legal profession.

How do you think the specific methods of assessment address employabilityskills, if at all? Please address each method in turn

All the respondents considered that oral assessments address employabilityskills. Further, 21.42% of responses specifically mentioned that this methodhelps develop communication skills. The responses to this question alsosuggested that students felt that the oral assessment addresses employ-ability skills by more closely mirroring “real life” employment situations andwas “similar to an interview situation in terms of question/answer and

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qualify your answer”; “quite relevant to employability within law as you willbe required to present within your career” and helps “explaining to clients”.Ten respondents (35.71%) specifically commented on their increased con-fidence in public speaking: “builds up confidence speaking to others”;“gives you confidence to put your point across”. Interestingly one respon-dent noted an incidental benefit that “cheating is almost not possible”.Whilst all students recognised the employability benefits of the oral assess-ment, few ranked it as their preferred method of assessment. This could bedue to a number of reasons including the unfamiliarity of the method, thestress and pressure associated with speaking in public, and the rigorousnature of the assessment which leaves “nowhere to hide”.

PDPs were heavily criticised by respondents. Eight respondents (28.57%)when asked to explain the employability benefits developed through PDPssimply left the space blank or replied “none”:

In theory it is a good idea to self-reflect, but within the courses at university itdoes not work well as it is often not accurate.

Pointless: cannot see how one can be assessed accurately.

Not productive.

Would you prefer to be assessed by one assessment method or a combinationof assessment methods? Please explain your answer

Seventy-nine per cent of respondents felt that modules should be assessedusing a combination of assessments rather than just one single method. Ofthese, 27% explicitly mentioned that they would prefer a combinationinvolving both a written and an oral element (however, it was a shortcomingof the questionnaire that it did not provide respondents with the opportu-nity to pick or state their preferred combination: it would be interesting tosee how many students were content with the exam/written assignmentorthodoxy).

As I find written assignments and oral assessments most relevant to help improveemployability skills I would like a combination of both.

I think it shows the 2 most important features assessed when applying for a legalcareer.

A combination is better as it allows you to show a variety of skills.

Of those remaining 21% of respondents who thought that only one method ofassessment should be used, they were unanimous in finding it should bewritten coursework. One respondent concisely summarised the theoreticalargument in favour of assessment diversification:

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I would prefer more than one. If I am not good at one assessment I may be betterat another method.

Conclusion

Employability does not require the whole-scale rewriting of academic pro-grammes. As Knight has noted, employability can be about making the tacitexplicit.39 On the undergraduate law degree it can provide the opportunity torefocus on the pre-existing strengths and characteristics of a liberal legaleducation. The long tradition in UK law schools of participatory small grouptutorial teaching lends itself to the development of oral communication skills.Employers highly value communication skills but Hardee’s study indicates thatlaw students consider that far more emphasis should be placed on developingoral communication skills on law degrees.40 There is great potential to enhanceemployability coverage on the academic curriculum by embedding skills inassessment. This also serves sound pedagogical principles such as the desir-ability of aligning teaching and learning activities with assessment activities, theenhancement of formative assessment provision, and the diversification ofassessment to accommodate learner heterogeneity.

Changing an assessment method is no simple task and the various valida-tion and quality procedures can provide a considerable disincentive and resultin the proliferation of “those assessment arrangements which are least likely tojolt the passage of traditional, well-oiled teaching and learning juggernauts”.41

A strategic approach is required within the law school when deciding in whichmodules the oral assessments should be placed to ensure all students have theopportunity to experience them and the responsibilities are spread fairlyamongst staff.

From a personal viewpoint, the new assessment was challenging to orga-nise but ultimately a rewarding experience. There was a marked increase intutorial attendance and participation, and the students approached the assess-ment task in a variety of innovative ways. Many students commented in thequestionnaire and in person about their increased confidence in public speak-ing as a consequence. The example provided here is just one of many ways inwhich law schools are innovating assessment methodologies. Employabilityand skills development does not need to stop at the door of the exam room.By instigating a modest change to the assessment of one module it waspossible to explicitly develop a much valued employability skill. In this wayemployability can be embedded within the core curriculum without compro-mising the delivery of the academic subject matter.

39Knight, supra n. 12.40Hardee, supra n. 9.41Knight, supra n. 31 at p. 4.

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