Don’t Leave Me, Please Help Me, But Do it Differently: A Plea to the Bar

Don’t Leave Me, Please Help Me, But Do it Differently: A Plea to the Bar

This month we have been focusing (Action Step #3) on examining ways that the private Bar might respond to the SRL Phenomenon. In my final blog this month on this issue, I want to pull back the veil on what SRLs and others are saying about what they would like from lawyers.  The central message from both my own  research which focused on SRLs, and from other studies looking at the concerns of the general public, is highly consistent.  Respondents want lawyers to help them, but many can neither afford them nor are they excited by the “I’ll take care of that for you” style in which services presently offered.

In other words, people say repeatedly that they want lawyers (and 86% in my study actually used or sought legal advice). However they are much less enthusiastic about the most common financial model (the traditional retainer agreement with billable hours) and the type of services (full representation, lawyer-in-charge) that most lawyers presently offer.

A curious – although consistent – finding from the Ontario Civil Legal Needs Study (2010) is that 1 in 3 Ontarians facing a legal problem would “prefer” to resolve it “on their own with legal advice, but not necessarily from a legal professional.”

Whaaaaat? They want “legal advice” but not from a lawyer?

That’s right – because they fear that it is too costly and because they worry that they will lose control. But they still want help – “legal advice”.

Don’t Leave Me, Please Help Me, But Do it Differently  

Similarly, people continue to turn to the courts with their conflicts, but frequently experience court processes and procedures as impossibly complex, mysteriously arcane and even downright unfair.

One interpretation of this apparent schizophrenia is that the public doesn’t really have many good alternatives to using the courts or consulting lawyers. The justice system still has a pretty solid monopoly on dispute resolution, despite the efforts of mediation programming (which face the problem that if you think you are right, you want to find someone who will (naturally) agree with you. For most people that still means (1) a lawyer and (2) a judge).

As a business opportunity, this statement has its challenges. But if it is the reality (and many studies coalesce around this point), and assuming that it does represent a genuine marketing opportunity, how can the Bar respond?

#1 By listening, and not immediately justifying the status quo.

Sometimes the instinctive response to calls for change is to move directly to justifying the status quo. Lawyers are very effective zealous advocates on their own behalf, and come out swinging when they feel challenged to defend/ justify/ rationalize their practices. After all, we do spend three years of very expensive education training them to do this.

Which is a shame, because the resulting ruckus often means that this complex message – Don’t Leave Me, Help Me, But Please Change – does not get analyzed as carefully as it deserves. Can we listen to this carefully without delivering a lecture about how important it is to keep doing things the way they are?

Listening was a big part of the reason we ran SRL for a Day last week in two Toronto courthouses  (https://representingyourselfcanada.com/2014/04/20/srl-for-a-day-has-legal-profession-leaders-walking-a-mile-in-their-shoes-a-3-point-manifesto-for-the-bar/) – and a big part of participant feedback (“We need to listen– really listen– to what SRLs are saying…” “We need to acknowledge the frustration of SRLs…” “We to need to listen more…”)

#2 By understanding what types of help the public wants from lawyers 

In every detailed accounting of how a SRL went about helping themselves, we have worked to understand what they got stuck on, what was the hardest part, and what they really wished they could have had help with.

What we hear in these accounts challenges many of our assumptions about what prospective clients mean by “legal advice”. First, it is noticeable that case research is one aspect of self-representation that a number of the (admittedly better educated) SRLs find relatively straightforward and rewarding. They know where to go (Can Lii) and they read a lot. They dip their toes into the muddy puddle of legal precedent and usually, they come up with something. They often miss a lot too. But help with finding precedents is only rarely what SRLs say they want help with (although some would like the results of their research evaluated by a lawyer).

SRLs talk far more about wanting assistance with legal procedure – figuring out which rules apply to what application, filing, hearing, or other event. The rules of procedure are extraordinarily complex and they preoccupy and frequently confound (and trip up) SRLs. They also frequently talk about wanting help with preparing documentation (and/or checking their own work, as above). Some SRLs may think of this as “legal advice” – in fact it may be “legal information” that they could obtain from a non-lawyer (although an experienced lawyer might be able to do a much better job, others are beginning to offer this type of assistance – see for example http://vancouver.en.craigslist.ca/van/lgs/4421099634.html and take a look at your local Craig’s List).

SRLs also want help with what they have to do to follow those rules and bring their matter before a judicial officer. Once they get to court, how do they present their matter? What arguments should they make and how and when? If you sit and watch SRLs presenting in court, even the very best prepared frequently stumble on just when they can speak to the merits of their case, rather than explaining how or whether they have met procedural requirements). At NSRLP, we have heard so many stories about this need that we developed a special resource, Coping with the Courtroom (https://representingyourselfcanada.com/coping-with-the-courtroom/). It does not come close to the coaching that a lawyer could provide, but SRLs tell us that they have a very hard time finding a lawyer who will help them with practical preparation for court.

And then there are the desperate, heart-wrenching pleas for emotional support – a friendly face, a listening ear, someone to tell them they are not a complete loser  now that they find themselves in a world in which they are treated at best with condescension and at worst with hostility. For those of us who have not had this experience, it is important that we try to understand just how intimidating and lonely it feels to appear on a family matter with everything at stake, a strong sense of our limited understanding and no one in our corner?

We are not about to start training lawyers to be social workers or therapists, but we could do a far, far better job of inculcating kindness and empathy (and talking about  and interacting with clients as real human beings at law school).

#3 By explaining how lawyers could help them – and why they might want to

A depressing number of the people we ask to get specific about the type of help they might want from a lawyer can’t really answer the question– their answers are a kind of hopeless shrug.

Don’t Leave Me, Please Help Me, But Do it Differently 

This group is clear about what they don’t want (to spend a lot of money, to feel excluded from decision-making and talked down to) and less clear about what a lawyer might do to really help them now.

How can lawyers help/ bring value to their clients? In many ways: by helping them develop creative solutions to their problems, by strategizing with them and assessing options, by explaining the shadow of the law and likely legal outcomes, by managing their expectations if they are looking at litigation, by being in their corner, by offering them emotional support (and setting careful boundaries). And more.

We need to recognize that the answer to this question is not obvious to many outside the profession. And proceeding as if the legal profession does not need to explain itself to the public is a symptom of the outmoded assumption that our clients should just “trust us”.

We know from change theory that consumers are attracted by the values and motives behind the product or service. In other words, they are buying not just the “what” but the “why”. (“Sell the sizzle, not the steak.”) This theory is often used to explain the enormous success of Apple, which has positioned itself as a company that symbolizes good taste and “cool”.

A proper public relations campaign that actually explains in concrete terms what they can get from buying legal services would be a good start. It would be even better if a public relations campaign could explain the profession’s values and motivations to the consuming public. A large swath of the public believes that the only motivation for offering legal services is to make money off them. They do not see lawyers as being genuinely motivated by an idea of client service. But I know that many lawyers are motivated in their practice – indeed to go to law school in the first place (www.whyIwenttolawschool.ca) – by a desire to serve people and to offer access to justice.

Don’t Leave Me, Please Help Me, But Do it Differently 

One way that the public will begin to see lawyers as having values other than profit is if we can show that we take this plea seriously, and that we are committed to the hard work necessary to listen to what it means.

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