Thinking Like a Non-Lawyer: When Plain Language Is Not Enough

Written by Jennifer Leitch, NSRLP Executive Director; originally published on Slaw, Canada’s online legal magazine.

The plain language movement in law has been in full swing for many years now. A plain language approach to legal drafting is taught in most law schools, and members of the judiciary are urged to generate decisions for parties in plain and ordinary language. This contrasts with the historically legalistic and complex language of law understood exclusively by lawyers, judges, and the academics who study law. Underlining the plain language movement is the belief that law, including the articulation of submissions made to court, the decisions rendered by judges, and even the legislation drafted by legislators, ought to be accessible to the people impacted by that law. There are those who challenge the appropriateness of plain language legal information on the basis that no matter how clear and ordinary the terminology, legal information cannot be properly or effectively deployed without a lawyer’s assistance.[1] However, this assertion fails to take account of the basic fact that most members of the public are accessing legal information because they cannot access a lawyer. And it is this access to justice crisis that has more urgently precipitated the need for legal information articulated in plain and ordinary language, such that it may be accessed by non-lawyers attempting to navigate legal issues without legal representation. This commitment to plain language is particularly relevant in the context of self-help legal materials that are meant to provide assistance to individuals without legal representation. In fact, as James Greiner notes, self-help legal materials have become one of the most common means by which individuals without lawyers obtain legal assistance. The question that now flows from reliance on this form of assistance is: does it work? Namely, are plainly drafted legal information resources, forms, and instructions practically useful to non-lawyers navigating a legal issue?

In his recent address to the joint Canadian Institute for the Administration of Justice (CIAJ) and National Self-Represented Litigants Project (NSRLP) conference, “A dialogue on Self-Representation,” Dr. Greiner suggested that the short answer is likely no, because the drafters of these materials have often failed to consider how end-users will effectively deploy the information contained in these materials. He argues that from a psychological perspective, in the case of individuals representing themselves in legal proceedings, drafters of self-help materials typically fail to take account of the stress, frustration, fear, and possibly shame experienced by individuals representing themselves. Further, those developing self-help material fail to account for the impact of this emotional state on self-represented litigants’ (SRLs’) ability to use the information effectively. The reality is that an SRL’s psychological state reflects a feeling of overwhelm, and this can make it very difficult to effectively deploy legal information and instructions. Moreover, when preparing self-help materials, drafters ought to take account of the very broad range of users and their respective abilities in regard to language, learning facility, cognitive or physical disability, etc. Although such materials are drafted by legal insiders using simple and plain language, it is inherently very difficult for the insider to disabuse themselves of their legal language and more importantly, their mode of thinking. To the latter point, thinking like a lawyer may not be of assistance to non-lawyers trying to understand what is required of them. All these considerations need to be accounted for in the drafting process in order for self-help materials to be most effective in practical situations. In approaching the drafting of self-help materials, Dr. Greiner suggests that the first thing we need to collectively do is stop thinking like lawyers, and start thinking like non-lawyers. The problem as Dr. Greiner see it is that it might just be too hard for lawyers to stop thinking like lawyers. In addition to thinking like non-lawyers, there are drafting lessons to be learned from different fields where instructions are often generated using clear and concise language, graphics, and pictures in easy-to-follow manuals. Lastly, in assembling these guides, drafters of self-help materials also need to turn to fields such as cognitive psychology, where experts consider how people learn, retain, and use information.

The criticisms of existing self-help legal materials extend to the organization and formatting, as well as the content of such resources. What is needed is different resources for different purposes. In many instances, legal materials for non-lawyers provide explanations of the theory or rationale behind a particular legal principle or procedure. And while this may be important for students to understand when studying law in law school, the same information may not be relevant for someone attempting to file a statement of claim, or the requisite materials in response to a motion being brought by the opposing party. What is needed by the individual in those situations is step-by-step guides that account for relevant deadlines, required materials (perhaps with template examples), confirmation of service, and what to expect in the courtroom (including appropriate diagrams of physical court spaces). In effect, what non-lawyers require are guides to completing discrete tasks as part of a comprehensive whole, broken out in small digestible components that are easy to understand and follow. What they do not typically need for certain purposes are long descriptive paragraphs that provide too much detail. Think Ikea manuals for legal procedure, graphics and all. The challenge is to differentiate the various needs of users in particular contexts, and provide the appropriate information in the appropriate form.

Additionally, Dr. Greiner suggests that to ensure these sources of legal information are in fact useful to the targeted groups, it is imperative that the intended users themselves provide input on the design and content of the materials. One of the lessons he has learned is that often the best organized and most well-intended materials fall flat when road tested by litigants themselves. Ensuring this does not happen requires a variety of methodologies, including interviews with SRLs regarding their specific needs and the challenges they face, observation regarding SRLs’ deployment of legal information in a variety of contexts, and focus groups of SRLs to review materials generated. It is only by engaging all these strategies that we can be assured that the materials we are drafting to promote access to justice actually assist those attempting to access justice.

Ensuring that SRLs are able to make use of the legal information materials they access requires a re-think of who should be drafting these materials. In effect, it may be important to engage non-lawyers, or as close to non-lawyers as we can get. Dr. Greiner suggests that, once trained in law, it is almost impossible for an individual to write about law in a non-legal way, though paradoxically, that is exactly what is required of self-help materials. The solution from his perspective: first year law students. With just enough law to understand what needs to be included, but not so much law that they can no longer see the world in non-legal terms, 1L students may be best positioned to provide instruction to non-lawyers. Law students and, potentially, recent graduates early in their legal careers can, as Dr. Greiner suggests, straddle the legal and non-legal worlds. While this may sound overly dramatic, the underlying (and important) take-away is that if we are to take seriously the effectiveness of the materials we provide to SRLs, we need to stop thinking like lawyers. These observations have resonated with staff at the NSRLP – as an organization that provides SRLs with practical legal information they can use in resolving their legal matters, we must consider the implications of Dr. Greiner’s research as we develop future resources.

Arguably, Dr. Greiner’s lessons could also potentially be extended beyond the creation of self-help materials to other forms of communication with SRLs, whether that be at courthouse counters or in courtrooms. If instruction or direction is being provided to non-lawyers by the clerks at filing counters or via judges in courtrooms, presumably the same logic applies. In such situations, SRLs are often stressed, feeling out of their league, and trying to digest technical and important information under difficult circumstances in a very short amount of time. The insiders who inhabit these sites are also used to interacting with similarly knowledgeable people – namely lawyers and judges. In such cases, if we want to ensure that SRLs can make use of instructions or follow the directions provided to them, the means and mode by which the information and direction is conveyed becomes as important as the content. Adopting this approach would require us to re-think the language of law on a much broader scale.

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[1] Rabeea Assy, “Can the Law Speak Directly to its Subjects? The Limitations of Plain Language”