“I think I would tell them this is a system that has worked for 200 years and I believe that it is the best system that we could have.”
At a provincial bar association conference last summer, I challenged a group of lawyers about how might we talk to the public about the access to justice crisis.
The discussion did not go so well. The statement above was (almost) the entirety of the audience’s response.
I had introduced this discussion – following my presentation of the National SRL Study results to a mostly attentive and interested audience – by distributing copies to the audience of Alan Shanoff’s blistering column from the Toronto Sun (“Self-Representation Dilemma: those who attempt to litigate for themselves face obstacles in our court system”, June 8 2013 http://www.torontosun.com/2013/06/07/self-representation-dilemma), published shortly after the release of the Final Report. In it, Shanoff describes my study as “searing criticism of judges and lawyers.”
I asked the audience to read the (short) column and then posed this question:
“Imagine you are at a backyard BBQ and a neighbor tells you that they have just read Shanoff’s column. They ask you – as a lawyer but also as their neighbor – for your thoughts? How will you respond?”
An Uncomfortable Silence
The first suggestion to break the silence that came from a small group of (younger) lawyers, who somewhat timidly suggested that they might acknowledge that lawyers were sometimes “ a bit expensive”. This brought jeers from the other side of the room.
After another long and uncomfortable silence, I asked again, what problem with access to legal services might they acknowledge to their neighbor?
The next suggestion – which brought the discussion to an end – was the assertion quoted at the top of this blog (as close to verbatim as I could recall immediately after the session).
Trying but Still Missing
Undaunted, (or possibly just naïve and foolish) I tried this exercise again more recently. I have seen that discussion around the SRL Study results and their implications for changes in private practice and public legal services is becoming increasingly constructive, open, and serious – and the group I addressed last weekend at another provincial bar association conference was no exception, very engaged in these ideas. So, I thought, why not give it another go?
This time when I handed out copies of the Shanoff column, I warned the audience that it might singe their eyelashes to read it. That it might make them angry and they might feel that it was unfair. But that they still needed to think about how to respond.
This time there was a real effort at engagement with the Toronto Sun reading neighbor (seasonally adjusted, s/he was now encountered shoveling the driveway). But then I noticed how our legal training baggage infuses our attempts at engagement, perhaps especially when that engagement feels difficult, awkward and unnatural.
When I asked what questions they might ask their neighbor in order to better understand their point-of-view, the suggestions sounded rather like a cross-examination: “Have you read the full Report?” (nb: this probably would not make the neighbor feel all that much better) and “Could you describe a specific problem that you have had with a lawyer?”
I’m sorry but we need to drop this style – which sounds adversarial and defensive – if we are to have a successful conversation with the public. More fundamentally, we need to think more about what kind of conversation we need to have if we are to understand the perspective(s) of the public.
I could not help noticing that in a room that a few minutes earlier had been animated and open to exploring questions about how legal practice could be more responsive to SRLs, that uncomfortable, seat-wriggling, silence had taken over again.
Lawyer-Bashing, or the Unpleasant Reality?
That Shanoff’s column was written with an agenda – Alan Shanoff is a former lawyer and his readership encourages him to take a hard line on lawyers – is undeniable. Certainly he failed to mention the many lawyers who are toiling in the trenches and doing their very best for their clients, who deserve public respect. Instead he chose to focus on all the negative bits of my report – but to be fair, there were plenty of these for him to choose from. Nothing that he wrote about my study was inaccurate (unusual in my experience with the press).
The reality that both the column and my report reflect is that the level of public skepticism and disillusionment with the legal system is extremely high. We can write this off as lawyer-bashing – but the critiques are rooted in the structure of a system that is expensive, ineffectual, arcane and elitist. It is not a system that presently makes many users or clients happy.
Acknowledgement means Talking To the Public, not Just At Them
Whether we think it is fair or not, the feeling that lawyers are not serving the public is widely held, and some of the criticism – that lawyers cost more than most people can afford, that lawyers do not seem to listen very well to their clients and that sometimes they do not seem to be focused on them as much as on their own routines and rituals – is made consistently and credibly.
We need to find a way to acknowledge this to the public. Acknowledging that we have a problem with access to justice is not saying that this is all the profession’s fault, or that we can fix it easily. But a little acknowledgement – and a lot of listening—to SRLs, to our neighbors and to our friends as well as to our legal colleagues – would go a long way.
In posing the question of public engagement I sometimes get the feeling that some lawyers think why should I talk to the public about the A2J crisis? Instead, they prefer to talk among themselves. I think some lawyers see their role in terms of informing the public about the answers to the present crisis, rather than soliciting their views, experiences and ideas.
I disagree. Of course justice system professionals should being having (focused, concrete, challenging) conversations with one other about the A2J crisis (http://drjuliemacfarlane.wordpress.com/2013/12/08/fire-in-the-hole-why-every-lawyer-needs-to-care-about-access-to-justice) – but these discussions should be informed by intentional and frequent conversations with the public.
Why Talking to the Public is Important
We need to learn how to talk to the public. And as these two experiences show, that is going to take some work and conscious effort.
Why is this important?
1. Because we already have seen (for example at the Dialogue Event in May 2013: http://www.representing-yourself.com/dialogueevent.html) that talking with SRLs changes their assumptions about legal professionals.
“From the moment I stepped off the plane in Windsor (my experiences were) the exact opposite of my interactions with the legal system. The chaos was replaced with order, indignities with respect and cruelty with kindness.”
2. Because if we do not talk with the public, we are fulfilling the widely held prediction that system insiders will not talk to system outsiders (the users). Many – reasonable, moderate, educated – SRLs have told me that that the justice system feels like a playground for lawyers and judges, not a system designed to assist the public. I want to prove them wrong about this.
3. Because by working together to build a system responsive to what its users need and want, and shaped by what is possible, perhaps we can create a justice system that will work for…well, if not for 200 years, then at least for the next 50?
