We’re Getting Started – Are You Coming With Us? A First Legal Coaching Experiment

We’re Getting Started – Are You Coming With Us? A First Legal Coaching Experiment

I have been blogging recently about developing a legal coaching model for responding to and assisting SRLs (https://representingyourselfcanada.com/2013/12/14/seriously-lawyers-coaching-srls-in-self-advocacy/; https://representingyourselfcanada.com/2013/12/18/providing-legal-services-in-a-coaching-model-the-what-why-and-how/)

There has been a tremendous response to these blogs, with more and more people inside the justice system joining in this debate. Many recognize the potential of a limited scope approach that offers more than “just” legal advice but is focused on properly equipping a SRL to continue to self-represent – because that is what they are going to do.

A legal coaching session might include procedural or substantive advice, or assistance with a discrete task such as completing documentation or preparing for an upcoming hearing. It may mean coaching preparation to participate in a mediation or a settlement conference, or help drafting or reviewing an offer to settle.

This is a new idea, but builds on experience already developed by duty counsel and others who offer traditional “summary legal advice”, collaborative lawyers (who agree to be retained to negotiate not litigate,) and informal assistance offered by many lawyers in practice who have clients who can no longer afford to continue to pay for services on a traditional full representation basis.

As with any innovation, there are many complexities and challenges here that should not be under-estimated. Furthermore, if the aspiration is to “customize” legal coaching in order to make it responsive to the needs of individual SRLs, only experience can inform the development of best practices. Two small legal coaching pilots offer the opportunity for exploring the challenges and a small beginning for the development of best practices.

At Windsor Law

Last week at Windsor Law the SRL Coaching Clinic met for the first time, with instructor Sylvia McMechan (an experienced mediator and conflict coach known and respected across Canada).

Two of our local family judges and the director of the Windsor family mediation service (a family lawyer herself), as well as Sue and myself, are coming to class over the next few weeks to brief the students on what to expect and how to help.

Four brave law students have signed up. They will obtain course credit from learning about the SRL phenomenon and they will be “matched” with a local family SRL to whom they will provide “legal coaching” (but no legal advice – they are not supervised by a lawyer).

The flyer advertising the pilot clinic reads as follows (excerpt only):

“Law students will be matched with litigants – one-on-one – to offer coaching. Our law students will not be able to provide legal advice, but they can:

  • Help you review your case and identify your needs and priorities
  • Help you to prepare for a mediation session (and possibly accompany you)
  • Work with you to prepare for a case management or settlement conference (and possibly accompany you)
  • Answer questions about procedure (subject to the knowledge of the individual student)
  • Review your forms with you (subject to the knowledge of the individual student)
  • Provide overall support as you work through this often stressful and difficult process on your own.”

This will be a challenging project for our students. They will be closely supervised and we shall be looking to them to give us feedback about the pitfalls and the rewards of an evolving legal coaching model.

But the four are Windsor Law students, and I am proud to say that they are up for it. In 20 years time, they will be able to tell their articling students and junior associates, ‘I was part of the first legal coaching experiment.’”

Another Small Experiment 

In consultation with a pro bono organization, a one-off legal coaching experiment has begun with a family SRL (“Ms X”). A new call is offering Ms X “litigation coaching” under a limited scope retainer, reviewed by the Law Society’s Practice Review Department. Ms X has been handling her own litigation for three years, and now faces an upcoming trial.

Her litigation coach – as brave or perhaps even braver than our four law students, she will be sharing her experiences so far with them next week – is helping Ms X to prepare for her trial. She is also helping her explore the potential for settlement and discussing what an offer to settle might look like.

No One Said this Would be Easy  

While the Windsor Law students won’t meet their SRL “partners” until next week, the Toronto experiment has already faced some challenges. Last week Ms X drafted an offer to settle which began with the stipulation that it was “non-negotiable and for immediate execution”. Obviously this is what Ms X wants and feels that she needs – as do most people involved in a contentious litigation matter – leaving her litigation coach to bring her the reality check that framing a proposal in this particular way is unlikely to meet with a positive response, whatever its content. Not an easy conversation, but one that both coach and SRL were committed to having.

In many ways, coaching SRLs to come up with a “yesable” proposition is the same as any discussion with a client over a settlement offer. Litigation lawyers (and in a different context corporate lawyers also) have been doing this for years, albeit they may have considered themselves more firmly in the driver’s seat than a “litigation coach.”

But not necessarily. A collaborative lawyer once told me in an interview:

“I explain to my clients, they’re driving the car. (I am) holding the road map, which is the law, (I) know where the construction is, (I) know where the potholes are, (I) know the shortest route between two distances, (I) know where the speed limit is higher….even when (I can) see exactly what should happen (my italics), my job is not to drive the car,…(my) job is to keep holding the map. ”

Legal coaches are holding the map, not driving. This means that sometimes the car may go off the road, or turn the wrong way, or perhaps simply stall. But legal coaches can also be there to offer assistance over and over. Unlike traditional summary legal advice, legal coaching can be structured not as a once-only opportunity but as a continuing commitment. And of course this adds further complexities to coaching – but reflects the reality for many SRLs who will otherwise come and go as “clients” of traditional legal services, and is responsive to their actual needs.

Supporting Innovation

I shall continue to report from both coaching experiments and invite others to document their own experiences as we work on evolving new models for legal services.

Lest we become too evangelical about a particular strategy or approach, it is worth reminding ourselves that it was a one-size-fits-all ideology (litigation & adjudication) got us into this mess (dissatisfied clients and yet more who cannot afford lawyers at all) in the first place. There will be no simple recipe for success, and each challenge will have multiple possible responses.

Change is hard but it is never boring. The second of my New Year Resolutions for Access to Justice: Support (and get excited about!) Innovation – was by far the most retweeted. I take that as an encouraging sign!

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