Last week the significantly revised second edition of my 2008 book The New Lawyer came out (available on Amazon, or take advantage of a 20% discount until August 15 at the UBC website, extended until September 15 if you are an SRL: code SRL20).
This seems a good moment to evaluate what may have changed in the culture of legal practice over the almost ten years between editions (the new edition is affectionately nicknamed “The Newer Lawyer” by my colleagues at UBC Press).
It has also provoked my personal reflection on how my understanding and critiques of the legal profession have evolved in the last ten years.
In the past I have sometimes described my work as a “loving critique” of the legal profession and its culture of practice. I have to admit that in the last few years my feelings have sometimes felt less loving, and more exasperated. As the challenges and realities of the SRL explosion have become clearer, I have been shocked by the strength of the resistance not only to responsive change but even to accepting that there is an Access to Justice problem that needs to be understood and addressed.
Just, Ethical, & Pragmatic Settlement
My preoccupation in the first edition of The New Lawyer (subtitled: “How Settlement is Transforming the Practice of Law”) concerned the settlement culture (or lack of it) in the legal profession.
In 2008, I was very engaged in the dispute resolution community, evaluating new settlement processes and programs both inside and outside the courts, and frequently acting as a mediator myself.
I was appalled at the fact (which remains unchanged) that while 98% of civil and family cases settle short of a full trial, most settlements occur “on the courtroom steps.”
I saw this single statistic as representative of everything that was wrong about the legal services industry and its framework. Clients who settle on the courtroom steps of course have already incurred high legal costs, and in interviews not infrequently told me that they felt they had been pulled along by their lawyer until being “suddenly” pressured to capitulate at the last minute.
In the last ten years, some progress has been made in the development of a settlement culture, for example:
- It is broadly accepted that litigators should seriously attempt settlement using something more formal (for example mediation, judicial settlement conferencing, arbitration) than the “let’s discuss this in the bar” method.
- There is some data suggesting that this shift means that in some cases there is earlier consideration of settlement.
- Professional development in dispute resolution skills and advocacy for lawyers is more widely available and more sophisticated.
But the big picture remains bleak.
- There is still a pervasive sense in some parts of the profession – beginning at law school – that settlement is for wimps.
- Despite some advances as a result of mandatory mediation and settlement conferencing, the bulk of cases still settle just before trial.
- Just after the publication of the first edition of The New Lawyer, new research backed up something I had long suspected: that among those cases that do go to trial (this study is out of California, the only North American jurisdiction large enough to produce a meaningful quantitative number of trials) lawyers have advised their clients to reject an earlier settlement offer that turns out to be better than their eventual outcome at trial for an astonishing 61% of plaintiffs, and 24% of defendants (Kiser el al).
The Client Revolution
The second edition of The New Lawyer is subtitled “How Clients are Transforming the Practice of Law”.
The central theme of the new edition is that clients are increasingly impatient with being told “just trust us” and letting their lawyer burn through their bank account. The premise that sustained the “we fight everything—winner take all” culture of the legal profession was that clients would believe that their lawyer knew best and would be grateful to accede to his or her expertise.
Not so secure a gamble any longer, for either lawyer or client.
It is clear to me now that clients are, and must be, the primary drivers of the legal services revolution. With a few honorable exceptions, it isn’t the professionals who are pushing for modernization that resonates with what clients want and need. The pressure for change is coming from clients and would-be clients.
Consumers are thinking about professional services (not just law) in a profoundly different way. They are less deferential, more interested in value-for-money (and possible alternatives), and they are digitally empowered – even if that just starts with a Google search. The legal profession has shown a quite remarkable lack of willingness to accept or respond to these fundamental changes.
As I revised the book to integrate new research data on self-represented litigants, I realized that the SRL phenomenon mirrors what we have been learning from interviews with clients for the last decade.
The users of legal services – which includes many SRLs who began with a lawyer before expending all their funds – share a growing list of common frustrations. They want:
- More direct control over all aspects of decision-making (including expenditures, settlement discussions, creative options and more).
- More complete explanation and discussion (with them providing context) of recommendations offered by counsel.
- An explicit recognition that the client “knows” their case in a way that is different yet equally important to the expertise provided by a specialist who has not lived their experience.
- An acceptance that some clients may wish to reduce legal costs by undertaking some tasks themselves with guidance from counsel (legal coaching), or to contract counsel for discrete tasks (unbundled legal services) rather than paying for full representation.
A Profound Disconnect
The issues that galvanize me now and drive my ongoing work are broader and more systemic than my focus on settlement in 2008. This does not mean that I think that a strong settlement culture is any less important now than then – and clearly there is still a great deal of work to be done there that is integral to modernizing the justice system and responding to user needs and goals – but I have found my attention shifting to more fundamental questions of client service.
The disconnect between what (both corporate and personal) clients want and the services lawyers actually offer is now at a juncture that is both profound and shocking. The roots of this disconnect run deep. They are embedded in the structure of legal services and in the core identity of lawyers (beginning in law school). They are reflected in the blithe assumption of many lawyers’ associations and professional groups that they don’t need to change, that the “real” problem is someone else’s fault and now responsibility.
What is most important to me now is speaking out about what needs to change, and working with those who are committed to this. I hope that the new edition of The New Lawyer will advance both these goals.
A New Commitment for the New Lawyer
As our society becomes ever more complex in its multiple communication modalities, its innovations and creativity, and the development of assistive technologies from robots to AI to self-driving cars, there are still areas of human behavior and practice that seem to be frozen in time.
I sometimes get a feeling of time warp when I listen to lawyers talking about their clients. There has long been a permissive culture of lawyers feeling comfortable denigrating their clients, and complaining how clients “get in the way” of them doing their job.
Lawyers like to share client stories that typically focus on how dumb or irrational their clients are. More recently there has been a rash of SRL jokes which denigrate and deride the efforts of those without legal training and without the resources to afford a lawyer to help them.
This sniggering and ridicule may have been normative when lawyers had exclusive access to legal knowledge, and when clients deferred to their expertise and judgment without question.
But the power balance has shifted and this is not normative behavior any longer. The inappropriateness of lawyers ridiculing their clients is a perfect example of the disconnect I see between the needs of justice system users and what lawyers want to sell them. The new normal – which I believe to be largely the consequence of the increasingly loud and consistent voices of justice system users – challenges the The New Lawyer to commit to genuinely respect clients, to pay careful attention to their needs, concerns, and financial limits, and to consider them true collaborative partners.
There is also a very strong element of misogyny in the judicial system. Women are treated with complete contempt. If we attempt to speak and be heard,, we will be ridiculed, mocked and suggested that we are inherent liars. I had one lawyer,, actually a woman,, for the opposition,, suggest in open court that I probably didn’t even know who my childs father was. I was shocked! But in hindsight, maybe I shouldn’t be. The atmosphere is very discriminatory and rude. That is coming from women and men within the judicial community. If you are self represented, and a woman, you are basically finished. No one hears you, and no one will believe a word you say.
As an SRL in the system in 2010, I was told to come back with a lawyer . I do not believe that my access to justice should require a lawyer. I feel that lawyers need to earn their fees by providing excellent service and by bringing an expedient and economical outcome to the case. I applaud your work in this regard.
i have put the issues of the lack of rules and the inherent discrimination within the judicial system before both the premiers office, and the provincial and federal attorney generals offices. I have no indication from any of them that they are concerned and or wish to change anything. The admission of expert evidence without examination, full disclosure, or even the ability to have it independently examined, is not a concern for the courts out here in BC. I have also presented these issues to the prime ministers office. Same lack of regard. in fact,, I get most responses from the federal attorney generals office, signed,,,,,A MANAGER. no name will even be provided. This lack of respect for access to justice for the public is in my opinion appalling. Yet,, it is still here. No matter how much research is done. how many instances of injustice occur. A MANAGER from the attorney generals office,, couldn’t care less. Let us keep in mind,,if one is given the chance to change things for the better, and does not. This is how they like things to work.s
Good luck with the book but I wish the effort had gone into supporting complaints to Law Societies where clients experience high price delay and/or sub-standard advice from lawyers.
I recently engaged a lawyer found on your list. The issue was within the jurisdiction of an administrative tribunal. I provided a chronological summary with supporting documents and photos. I specified (“instructed”) that I wanted my work checked and defined in legal terms (in effect “Pleadings”) so that my mediation request to the other party would be seen as serious and well-based.
The lawyer had experience but not in that area. The matter was handed to a recent graduate (“cheaper”). I’m not a lawyer but have some experience (RCMP, secondment to DoJ). A $4K retainer to find that my research was better. Just as well as its all I’ve got (apart from the Solicitors Act and I’m probably out of time).
Can you find time to consider whether lawyers etc. if recommended should also have ‘consumer review’ available to other searchers after .. relief?
Hi Nic, nice to hear from you. We have discussed the idea of reviews of those on the National Directory list but we really do not have the resources to do this at this time. I realize this sounds like a cop-out but it is a big jump from providing a “buyers beware” list to an evaluated list. Having said that, I would appreciate it if you could let me know in confidence which individual on the list provided you with these services – Julie
I don’t see a prospect for any real change in the attitude of the legal establishment until such time as we see some judgments that acknowledge the bias and how pervasive it is. I think there are opportunities for cases that call for such judgments, and that it’s possible that sooner or later we are going see one. My guess is that it will be one argued by a lawyer, but of course there aren’t many lawyers interested in presenting such a case.
I think it was thanks to Julie that I first heard the term “querulous litigant” – the most extreme of the characterizations of SRLs. I spent some time researching that notion and found not only the primary source – two Australian psychologists – but a very enthusiastic Canadian promoter of that characterization in Quebec Justice Yves-Marie Morissette. Given my extensive experience with the labour law bar I was delighted to find a copy of a speech he gave to a gathering of the Association of Canadian Counsel to Employers. It was posted on the association’s website. That link no longer works and I haven’t found another one for it (I did save a copy). I take that as an indication that they’ve realized what it really says about them.
I was reminded about Morissette J.’s paper when I found a recently published “research” paper that mentions it. That paper can be downloaded at this link – https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2996885 .
This is an excellent insight into the uphill battle facing SRL’s in getting disputes resolved in a timely, cost-efficient, and fair way. The courtroom may be good for resolving corporation vs. corporation disputes, but not for corporation vs. self-represented consumer, or vice versa. I hope our Ontario Justice minister, MPP Naqvi, the Chair of the License Appeal Tribunal, Mr. Yee, and the Ontario Consumer Services minister MPP MacCharles will read this and take real action to improve access to justice for average consumers in Ontario.
It is disturbing the Attorney General doesn’t feel law should be accessible. For the most vulnerable,such as the disabled , people who lack the resources to match a corporate legal cost center in general. To be told by “social justice” firms they bill at over $400 / hour when your income is government disability (~$1100/month) sums up many members of the law society . The systemic issues within ODSP,a support program that’s supposed to help the disabled is a new form of a state run sanitorium . Canada isn’t what’s advertised if one pulls back the cover.