A Week of Contradictions: Why I Sometimes Feel Despair About the Profession I LoveNSRLP
Last week I received this year’s Mundell Medal for Legal Writing – a co-recipient with with my colleague, Mr. Justice Todd Archibald – from the Attorney-General of Ontario.
This was a great honor, which was both genuinely gratifying – but also conflicting for me.
Because after more than 30 years of offering “loving critique” of the legal profession and the justice system, I now find myself in more despair than ever.
In the last few years, each time I attend a conference of lawyers, or a celebration of our profession, or an honoring of its most elevated members, I get the same feeling (I always hope I will not, because it is a very uncomfortable feeling, but I do).
I find myself looking around at so many good people who want to do good work and feeling perplexed and confused. I wonder: do they really understand just how remote and irrelevant the work of lawyers has become to large swaths of the public?
The chasm that divides us
I truly believe in the ideals of our profession. I believe in its advocacy for those who need a voice, and its amazing ability to effectively question – and what’s more, to change – how we frame the norms of our relationships as individuals and within our communities.
But I also recognize with shocking clarity the chasm that divides the profession and the public.
And I wonder – how will we ever bridge that chasm between lawyers and ordinary Canadians (regular folks, not banks, corporations, or government) if we cannot hear to what they say they want and need?
Are we so indoctrinated into a narrow rights-based view of our profession that that we can’t respond to what people are telling us they need and want from lawyers?
I hope not, because that would be a miscalculation with serious consequences.
It’s not the people in the legal profession who are the problem.
It’s what the profession has become.
The following are facts:
Most ordinary Canadians can no longer afford lawyers. They are telling us – “we cannot afford you” and “please change, please help us but do it differently”. But – we don’t seem to really care that much. No one talks about it at gala dinners. Instead the talk is of beating back moves to expand family legal services to (more affordable) paralegals.
Most ordinary Canadians do not understand why lawyers should be paid $360 an hour, and pro rata every fraction of an hour for every single task (Canadian Lawyer magazine’s average Going Rate 2015). Many doubt that what they will gain from consulting a lawyer will be “worth” that expenditure. Yet many family lawyers think that Ontarians should not have access to paralegals to assist them with family law issues (when more than half are without counsel) because “lawyers are worth it, and paralegals are not.”
With my client hat on
Twenty-four hours after receiving the Mundell medal, I was sitting in a conference room in an upscale law firm in the City of London.
I was there to meet with senior litigators representing the Anglican church and its insurer, Ecclesiastical Insurance Group, to pursue the second stage of my settlement agreement made last month to end my lawsuit against a priest for a year of sexual assaults that took place when I was a teenager.
My settlement agreement requires the development of a new claims protocol for those bringing sexual assault claims against the church. My goal is to accommodate some of the realities of survivors of sexual abuse within a revised investigation, evaluation and settlement process; to avoid the re-traumatization of survivors who bring claims forward.
I meet with those who manage and direct these files as a peer. On a technical level, I understand their work very well. I speak their language. I understand the constraints and pressures on them. I know how they think – strategize, rationalize, wager – when they defend claims.
Yet what I realized, five hours later, was that they could not hear my voice (as a former litigant, albeit a slightly unusual one) either.
- Many lawyers cannot hear their clients when they are questioned or challenged – they can only hear their own justification or rationalization (that is, if they give one – I probably know how to press harder for explanations than most clients).
- Many lawyers do not understand how their decisions – whether to plead in a particular way, to rebuff settlement openings, or simply to default to a routine pattern of action– can impact their clients’ emotions. Or if they do, they don’t think that it is really important – empathy is not part of their job description.
- Many lawyers do not see being “stuck” in a tautological justification – “we have to do it this way because every else does it this way” – as a moral choice (which it is).
Everyone at the meeting was considerate and polite to me – but they could not hear me in that plush conference room.
What chance does that give lawyers of hearing clients less cognizant than I am of the culture, the norms, the rules and the justifications of legal practice?
What can you do?
The legal profession is full of good people, at every level. Smart people. Many who entered the profession because they cared deeply about ordinary people, and at least in the beginning, really cared about understanding their needs.
But every lawyer gets battered and buffeted and ultimately reshaped by the norms of the profession that places privilege over public interest, righteousness over understanding, expertise over a journey of learning, and status above everything.
The bridge across the chasm separating the legal profession from ordinary Canadians is deep, courageous introspection.
The antidote to being stuck in old patterns is accepting that we need a new way of thinking about the work that we can do to enable us to truly relevant, effective, significant allies for those who need us.
The antidote to despair is action.