I’ve just finished teaching a new class this Fall. The class is simply called “Clients”.
It focuses on six “core” client skills – 1) empathy, 2) advocacy and commitment, 3) counselling, 4) collaboration, 5) “best interests” negotiation, and 6) recognizing the impact of power, gender and culture in the relationship.
We explored these six core or universal skills in relation to six client case studies. These were: family law clients; the “primarily self-represented”; corporate clients; victims of sexual violence; clients with addictions; and Muslim clients.
My game group of “guinea-pig” upper year law students and I, along with my amazing class guests (both lawyers and clients, including a full day with Windsor alum and Assistant Crown Attorney Brady Donohue) discovered that we had a great deal to talk about.
Another new course?
It would be reasonable to ask why on earth would I still want to invent new classes after teaching law for 36 years, and having taught more than 20 different courses in that time.
For several years now I have been noticing, with growing disquiet, a recurring experience as a researcher, (I often interview lawyers and clients) and as an ally and activist working alongside lawyers and their clients.
Many lawyers are technically competent. Some are brilliant. Some of those I have worked with over the years are veterans in their field of practice with stellar reputations among their colleagues. They are good people, committed to their clients – or at least, to their clients’ cases.
Is that different? I would argue that yes it is, and it’s a very important difference.
Recognizing the difference between understanding the case and understanding the client is critical to being an effective lawyer.
The case/client disconnect
What do I mean by a disconnect between case and client, and how does this happen?
The problem begins, of course, at law school. As I have written in the past, clients are practically invisible in legal education[1], outside of clinical programs. They are the names in the case report headnote, not real people. They are a case.
Clients provide our raw material – their conflicts (devoid of any personal details) are the petri dish in which lawyers develop their brilliant legal arguments.
We don’t talk about them as people with lives, aspirations, and goals.
As a client memorably pointed out to me in an interview more than ten years ago,
“Well, you know, let’s face it, what in law school teaches a lawyer how to read the needs of the client? Nothing.”
Having been socialized to believe that clients are “what gets in the way of you doing real work”, or worse, “the enemy”, it is not surprising that few new lawyers are prepared for the deluge of personal information that they will face, no matter which area of law they choose to practice (our guest Linda Bertoldi of Borden Ladner Gervais LLP was quick to point out that empathy is a critical skill for corporate lawyers just as it is for family lawyers or human rights lawyers).
Bottom line: practising law with minimal skills in talking to people is not going to go well. But minimal skills are exactly what we turn law grads out with, and occasionally a splash of arrogance. This isn’t their fault, it’s an institutional failure. We are not serving our students, their future clients, or our legal system well, and it’s high time to do something about it.
But for the lawyers and clients who came and spoke in my “Clients” class, learning how to relate to clients as people and not just as cases is a no-brainer.
Why this class is important
Last winter, having easily persuaded my (very supportive) Dean, Chris Waters that Windsor Law should offer this new class, I began to develop teaching plans and materials.
I admit to some moments of wondering why I had just created another big task for myself. And then I had my latest experience of case/client disconnect.
In this particular case, the client had a very competent lawyer with years of experience in their field. But each time the lawyer talked to the client, he became distressed. He told me privately that he felt put down, patronized, and pressured to accept the lawyer’s ideas. There was no unkindness on the lawyer’s part, just a clear example of case/client disconnect. What doctors might call a lack of bedside manner.
Little-by-little, the client began to try to explain to his lawyer what wasn’t working for him. The lawyer felt unappreciated and became defensive. I tried to counsel both of them about how to best understand where they were each coming from. The relationship continues but now with some constrained expectations (about support, empathy, collaboration, joint problem-solving) on the client’s part.
This class is important because it is a fragment of what we need to do differently when preparing students for legal practice. It is just a tiny step toward what really needs to be a systemic and cultural reorientation to what legal practice and legal education should be all about.
The other reason that facing the case/client disconnect is important is that clients recognize it. Clients can spot the difference – often intuitively, but unerringly – between lawyers who relates genuinely to them as people and those who are “a brain on a stick” (one of my favourite quotes from a lawyer in one of my research studies)[2]. No matter the competence of their legal representation, a disconnect between case and client disappoints clients and damages their legal experience.
As we move further and further away from the 20th century consumer, whose mindset was simply do what your lawyer says no questions asked, you can expect to hear more about this. This disconnect is a problem that 21st century clients are becoming increasingly willing to speak up about.
I am happy to share my course materials with anyone who would like to see them.
[1] Julie Macfarlane, “What Does the Changing Culture of Legal Practice Mean for Legal Education?” 20 WINDSOR Y.B. ACCESS JUST. 191 (2001) 183.
[2] The New Lawyer: How Clients Are Transforming the Practice of Law UBC Press 2nd edition 2017
I agree with this story,, however, there are some issues to be made,,, one is that not all lawyers are knowledgeable,, when the dna industry first came on the scene,, no one knew how to examine anything,, if you said it was wrong,, they treated you like you had lost your mind After all, they are science,, and absolutely correct. lately we have been starting to see in some old cases how wrong they were. The damage done is horrific. Lawyers,, and judges,, would not listen, No one seemed to understand a lack of ethics.. It is being seen now. And how about women who are being abused,,, how many lawyers understand and can see, PTSD. No,, they will call you crazy,, trauma is not crazy.. Trauma is Trauma. How about if you have a case, and you do nothing for months,, yet expect your client to just sit on the sidelines until you have time for their issue. How much time are they supposed to sit quietly by?? How about the smiling faces of people getting away with lying and abusing children? Can lawyers understand and hear when their clients are telling them they are wrong. ? It has been my experience that lawyers and judges do not listen to anyone saying they are wrong. And if the evidence suggests something else,,, they refuse to look at it,, or even to order a review and disclosure of the evidence to determine the errors. Instead as we have seen,,, you will be summary judgemented, out of court,, and fined excessive amounts for saying what you know to be true. It seems that the courts and all their players,, do not want to hear the truth,,, they want to hear what they WANT to be the truth. For the public,, or client,, this is frustrating,, confusing and infuriating No trust can be established in this environment. when is this likely to be a course,, how not to only hear what you want,, instead of how to hear.