Everything You (Lawyer/Prospective Lawyer) Ever Wanted to Know About SRLs, But Were Afraid to Ask: A Proposed SRL Curriculum

“Law school offers students and faculty an alternative reality to practice. The actual work and changing tasks of lawyers are either not discussed at all, or are presented as a misleading picture of constant trial work and heroic fights against oppression and wrongdoers. Few, if any, law school classes allude to the realities of the changes in legal practice described in this book…”

I wrote this in 2008 in the final chapter of The New Lawyer. Six years later, it remains true and graphically underlined by a new reality – the presence of large and growing numbers of self-represented litigants in the justice system.

Writing in 2008, I was focusing on the changes in legal practice produced by a growing emphasis on settlement before trial. As significant a culture change as that is – and one that the legal profession still struggles with adapting to – I now believe it to be dwarfed by the scale of the SRL revolution in our courts. The fact that litigants without counsel now outnumber those with counsel in many of our family courts (and amount to up to 40% of those using the civil courts) must be the most significant change in the reality of legal practice that has occurred in the last 150 years.

Even those lawyers who have never had a client who became a SRL, or who have never faced a SRL on the other side of a case – even lawyers who do not fall into either of these categories, still find the expectations and the climate of their practice changed by the enormous upswing in self-representation, a culture of self-help and value-for money (or more-for-less, as Susskind calls it), and virtually universal access to legal information on the World Wide Web.

So what are we doing about this in legal education? The answer, it seems, is not very much.

What are We Teaching Law Students and Lawyers about the SRL Phenomenon?

This month at the NSRLP we are focusing on the challenges of integrating what we are learning about SRLs into legal education. We have reached out to provincial law societies/ continuing legal education providers, and to law professors and other legal educators via listservs and Twitter.

Our question is a simple one – what are you doing, or do you plan to do, to integrate new knowledge about self-represented litigants and requisite skills into the training of (future) lawyers?

So far, we have received only a few snippets of information (of course there may be others hiding out there – please get in touch!).

Here is what we know so far.

• Professor Richard Devlin at Dalhousie Law School includes a class on SRLs as part of an upper year Professional Responsibility program (which also uses a video made with the collaboration of NSRLP featuring some SRLs talking about their experiences).
• The Law Society of Upper Canada is planning to offer a program called “Dealing with the Self-Represented” as part of their new on-line learning initiative http://ecom.lsuc.on.ca/ecourses (thanks to Nicole Nightingale for this information).
• Dom Bautista at the Law Courts Centre in Vancouver (http://lawcourtscenter.camp7.org) writes that they are systematically integrating the SRL phenomenon into their courses and that “we emphasize how to work with SRLs instead of dealing with them. It is about adopting the right tone, the right mindset.”

I can add to this list Windsor Law’s SRL Coaching Clinic (https://representingyourselfcanada.com/2014/01/21/were-getting-started-are-you-coming-with-us-a-first-legal-coaching-experiment/), a class in Access to Justice on the SRL phenomenon, and this semester, a problem-based learning exercise for the first year class that features a plaintiff who is a family SRL who has been terminated by her employer after missing time at work..

While hoping that further responses to our requests for information on SRL related teaching will yet arrive, I am going to use today’s blog to begin to map out a possible SRL Curriculum for legal education (sub-titled, Everything You Ever wanted to Know About SRLs, but Were Afraid To Ask). Of course, each legal educator will have different students and different needs, so please treat this as a general list just to get us started.

A SRL Curriculum

(1)     Knowledge goals

Law students and lawyers need to know and to understand:

• What is the present volume of self-represented litigants (SRLs) in family and civil (and criminal) court in Canada;
• How this phenomenon impacts legal practice, the courts, and individuals;
• What are some of the complex web of reasons – both individual and systemic – why this number has risen so precipitously over the past decade;
• The significance of affordability in accessing legal services and contributing to the rise of self-representation;
• What types of services and programs are available to SRLs via (i) court services (ii) public legal assistance (iii) the community;
• What are the professional obligations of a lawyer in interacting with a SRL (i) in court (ii) in written communications (iii) in negotiation/ mediation (iv) in informal conversations;
• What types of legal services can be offered by lawyers to SRLs who cannot afford or are unwilling to accept a traditional retainer full-representation model (including, limited scope representation, legal coaching, summary advice, fixed fee bundles);
• What types of legal services can be offered by those without a licence to practice law to SRLs who cannot afford or are unwilling to accept a traditional retainer full-representation model (including, legal information and orientation, emotional support, a McKenzie friend, court accompaniment)

(2)     Skills and attitudes goals

Law students and lawyers should be equipped to:

• Interact professionally, courteously and effectively with a SRL whom they encounter in any context (“mindset”);
• Explain to their own client the ways in which working with a SRL on the other side might affect that clients’ own experience and how it relates to their own professional obligations;
• Explain to a prospective client who is concerned about the cost of legal services and/or unable to pay for traditional legal services the value of their services and expertise;
• Explain and draft a limited scope retainer agreement or other alternative business arrangement;
• Continuously balance their clients’ interests with the necessity of working with a SRL, providing clear information to their client throughout.

How might these goals be achieved?

Information to answer the questions identified in the “knowledge goals” above is now widely available, with more resources appearing all the time. A good starting place to look would be NSRLP’s annotated bibliography (https://representingyourselfcanada.com/annotated-bibliography : a third version is coming shortly).

The “skills and attitudes goals” would be best achieved using hands-on exercises (for example, how would you discuss the pros and cons of a limited scope retainer with a client?) discussions (for example, how should the legal profession be responding to the SRL phenomenon?) and best of all, clinical experiences (for example, working as a “coach” with a SRL to walk them through a procedure such as filing documents, preparing them for a hearing or for mediation, or simply offering a listening ear, depending of course on whether legal advice, or only legal information, can be offered).

We hope to generate a conversation about how law school programming can pay better attention to the needs of the “invisible client” (https://representingyourselfcanada.com/2014/10/14/we-need-to-bring-the-srl-phenomenon-into-legal-education-but-first-we-have-to-bring-working-with-clients-into-the-law-school-curriculum/) as well as the challenges of working with SRLs. As well, we would like to stimulate more discussion and sharing over expanding continuing legal education offerings in this area.

Our goal is for this preliminary SRL curriculum to be considered and then added to – including being argued over? – by legal educators. If you have a response to the list of topics and goals above, or if you have an initiative to share, please get in touch.