The Shut-Up Culture – Why We Need to Speak Openly, Boldly, & Respectfully to One Other about What Really Matters

NSRLP is about to begin a 3-month focus on the theme of communication.

We shall be examining:

• How lawyers communicate with clients about what is important to them
• How the legal profession communicates with the public
• How the judiciary communicates with individual SRLs and with the public
• How SRLs communicate with those working inside the justice system about their frustrations and needs

Our communication culture

The first communication problem we have inside the justice system is that we – the “insiders” – aren’t very good at having difficult conversations with one another about contentious issues – like prejudice and discrimination, inter-personal conflict, or sexual harassment.

Even all the talking about access to justice inside the legal establishment seems to mostly steer clear of controversial topics and ideas (think para-legals, SRLs, unbundled legal services…).

In law schools, in the profession, in the courts, we’re great at arguing a position – but far less at ease exploring “uncomfortable” topics that create uncertainty, raise emotions, or question loyalty to and protection of the status quo.

Even when we talk about the need for “dialogue”, that seems to translate into shouting at one another from a distance. By dialogue, we mostly seem to mean that others should listen to the ideas we want to share.

Why is this?

There is a lot of judgment in the legal “club” about the appropriate behavior required to be a fully secure and accepted member. Newcomers worry about fitting in and not rocking the boat. More senior members avoid taking controversial and unpopular positions, and often protect one another in the hopes of ensuring reciprocal loyalty.

This is the “shut up” culture.

It impoverishes our ability to communicate openly and effectively with one another about what is important and what we really care about.

The “shut up” culture and A2J

Talking frankly and openly about A2J means challenging the status quo and examining our sacred cows. These include: professional regulation and turf-sharing; innovations in the form and costs of legal and para-legal services; how to work with self-represented litigants; the relationship of the judiciary to the public; simplification of court procedures; and the inclusion of the public in justice system reform.

Of course similar impulses to silence discussion of alternatives that challenge the existing power structure exist within any guild or trade, and are especially pronounced during times of change, when loyalties are fought over. Fear of change and the uncertainty it produces often produces resistance to more open discussion and the expression of “radical” ideas.

In the legal culture and perhaps in other professions as well, it is noticeable how often the admonition to “be professional” really amounts to “stay quiet” and “above the fray” (not engaging in genuine debate or dialogue).

In order to advance discussions over A2J (among other urgent topics for the legal profession), how can we change this “shut up” culture? Here are three places to start.

1. Young Lawyers are Afraid to Speak Up

Law school and legal professional culture combines to tell new young lawyers to keep their heads down if they want to advance. This message is conveyed every day, in every law school and law office (and especially to young women).

So (real story from last week) – when an articling student is sexually harassed by a senior lawyer, and speaks up about it, she is told to ignore it and stay quiet about it – that speaking out will ruin her future career prospects. Other women tell her to keep her head down and not to complain, they all went through it. Nothing happens to the senior lawyer. No one talks to him about the impact of his behavior. That’s too challenging a conversation.

A young Muslim-Canadian man graduates near the top of his class but cannot secure articles. In interviews he is informally asked, so would you come for a drink with for us after work? To which he answers no. He doesn’t want to complain about discriminatory treatment because he believes it will do no good, just stigmatize him as a whiner.

Young lawyers are frightened by the lousy economy they have graduated into carrying huge student loans, and accept that if they want to stay in the profession, they should probably stay quiet about anything that might put them at odds with the legal power structure. And not just about hard issues like sexual harassment and prejudice, but about A2J too. For example, I am aware that young lawyers are regularly discouraged by senior colleagues from offering unbundled services, or from working with SRLs.

2. We Hesitate to Call Out Bad Behavior

The Final Report of the National SRL Study (2013) presented a bleak picture of SRL perceptions of their treatment by some members of the judiciary.

You don’t have to take their word for it. In the last three years, I have heard innumerable stories from lawyers about judicial discourtesy towards SRLs, and also (although less often) towards represented litigants and lawyers themselves.

The common theme of these disclosures is their ending: “I didn’t know what to do/ say about it.” Usually, that means that nothing is done or said.

Many SRLs complained in the National Study about being disrespected and even bullied by opposing counsel. Again, lawyers and judges tell me that they have seen these behaviors themselves. And again, nothing is done or said.

We seem to have had numerous debates about intra-professional “civility” – but when it comes to the way that our colleagues – other lawyers and judges – sometimes treat the public, we are unsure what to do, and stay silent.

3. We Denigrate and Exclude “Non-Lawyers”

The fact that we even have a term for a person who is not “one of us” says a great deal about our legal culture.

I cannot count the number of times over the years I have proposed that an organization work with a “non-lawyer” instead of, or in addition to, myself, only to be told that they are not “suitable”.

Some examples: “our members would feel uncomfortable working with a non-lawyer”; “we cannot use our funding to pay travel expenses for a non-lawyer”; or, “a non-lawyer really wouldn’t know how to relate to our members” (this one may well be true, but not for the reasons given…).

Why do we passively allow and even enable a culture in which a “non-lawyer” will feel apprehensive venturing into an environment in which there is a dividing line between “lawyers” and “non-lawyers”? And why – given that so many of us see this as a waste of potential partners whom we need as we design the justice system of the future – are we not speaking out about this?

We Don’t Know How to Talk to the Public

Without being able to communicate properly with one another, how do we expect to be able to communicate effectively – or even at all – with the public?

I have become convinced that the reason that we don’t talk more to the public is not because we don’t want to – but because we don’t know how to.

Socialization in law school and in the various organizations in which lawyers work means avoiding difficult conversations and preferring autonomous decision-making. If we cannot talk to one another and we do not consider “non-lawyers” able to ”understand” our issues, how can we expect to know how to begin the public engagement in justice reform that the NSRLP is lobbying for?

A New Strategy

If we are going to make significant progress on improving A2J, we need to be able to communicate openly with one another about our experiences, values, beliefs and feelings. We need to take some risks, and have one another’s backs to create safety.

A few places we might begin:

In law school, we need to stop suggesting that “professionalism” (implication: dignified, uncontroversial, passive) equates with “keeping quiet” or avoiding uncomfortable topics. We need to encourage law students to develop their personal moral codes, and to be ready to participate in vigorous and civil debate over truly unprofessional behaviors.

We should be encouraging members of the profession, both young and older, to take greater responsibility for speaking up about bad behavior – prejudice, rudeness, harassment – by colleagues. We should be challenging efforts to silence dissent or discussion of alternatives. This may mean extending our collective accountability beyond reporting incompetence or dishonesty; and a frank debate over applying existing commitments (such as “(not) bringing the profession into disrepute”, or “civility and courtesy”) to interactions with the public. It may even mean the establishment of an internal legal profession (or law school, above) ombuds to investigate complaints (and protect complainants).

We need to acknowledge how much we can learn from other professionals whose expertise is different to our own, and harness their help in modernizing the justice system. What about a facilitated forum convened to solicit input on A2J reforms from (for example) mental health professionals, systems analysts, social economists, conflict specialists, change theorists and others?

We need to be realistic about how unused – after decades of insularity – the legal profession and the judiciary is to talking with the public and be willing to take some chances in learning just how best to do this. This begins with inviting thoughtful SRLs and RLs to talk about their experiences and ideas with policy committees or bar association groups, and should eventually extend into structured dialogue between system insiders and outsiders (the public, other professionals)

In short – we need to communicate much better with each one another about what really matters if we want to make the justice system and the legal profession better for everyone – and once we have had some practice, we need to talk with the public.

Realism and respect

We hear a lot of talk about dialogue. So let’s talk about dialogue, realistically.

Dialogue is not all Kumbaya, sunshine, and holding hands. Dialogue is always a struggle and at times may be uncomfortable and messy.

Dialogue over change – any kind of change – is not possible without some combination of speaking up and an authentic effort to listen.

Speaking up effectively and responsibly requires that we choose our words carefully, show respect for all perspectives, and try to meet people on their own ground. Dialogue about A2J requires our commitment to a complex debate in which we must balance openness and critique with respect. These are principles that have guided the work of the NSRLP through some difficult conversations and we continue to hold them close.

Speaking up does not have to be adversarial – this is not about fighting – but it often requires a willingness to be bold. We know that openly expressing an unpopular view may mean accepting critical judgments from others.

Speaking up does not mean putting other people who disagree with us down. In fact, we need to cultivate our empathy – for other legal professionals in a time of profound change – as well as for the public.

Starting now

We can start by speaking up about how important A2J is for our democratic values, and the many obstacles we presently see to realizing an effective and justice system that serves as wide a spectrum of users as possible.

We need to stop circling the wagons. We need to change the “shut up” culture. We need to move forward to create a better justice system and a more responsive, modernized, communication-oriented profession.