Lawyers Coaching SRLs in “Self-Advocacy”? Why This Paradoxical Proposition Deserves Your Serious Consideration
Much of what I heard from self-represented litigants in my 2011-12 study – and continue to hear in the mail we receive daily at the National Self-Represented Litigants Project – centred on what type of assistance they really wanted and felt that they needed.
How SRLs want help
SRLs want help – that is loud and clear. On-line resources get them part of the way – sometimes. But they want face-to-face help too.
Almost all of them say that they want lawyers. But they cannot afford to use a lawyer for every step of their case.
They want help to be effective self-advocates.
Crazy – or Adapting to Reality?
OK, so there is something paradoxical about lawyers assisting people to do the work that they would ordinarily charge them to do for them. The irony is that the profession now needs to consider this possibility in order to retain public legitimacy, as well as to enable the justice system to be more functional (more of this below).
Some lawyers will take the view that encouraging individuals to self-advocate is irresponsible and that our energy should be directed at bringing these SRLs “back into the fold” of full-on legal representation. While this sentiment may be coming from a good place, here is the reality – unless those same lawyers are willing to cut the cost of their services at least in half, or support a tax system that hugely expands legal aid, that it not going to happen.
And even then – if we can imagine either eventuality – there will be an appetite for saving costs. Whether this is self-advocacy, outsourcing, or access to para-legals, it’s all going in the same direction. The age of passive deference to professional advice is over. And a lawyer-coach model opens up the possibility of a lawyer/client partnership of the sort that so many personal and commercial clients now expect.
Let’s Think This Through
So could we use a lawyer-coaching model to respond to those who cannot or will not afford the all-or-nothing model of legal representation? I do not pretend to have all the answers, but this blog and part 2 (coming in a few days) are an effort to start a more substantive discussion about what may be one strategy for responding to the SRL phenomenon.
Here I shall sketch out the basics of a lawyer-coach role as an additional way of offering legal services. The second part in this series will get more specific about the content of lawyer and client conversations in a coaching model and the range of possible coaching services.
What does Coaching for Self-Advocacy Mean?
The Client will take (some/all of) the Next Steps
The first premise of a coaching model is that the client will continue to do at least some of the work on their case themselves. So instead of helping a client to decide whether to go forward with their case, and if so to set up a traditional retainer arrangement, SRL coaching is conducted on the assumption that the job of the lawyer-coach is to equip the client to take the next steps themselves.
This recalibration alone changes the content and the ways in which lawyer-coaches will give advice and assistance. And this is definitely not “lawyering-lite”. Coaching assistance is just as challenging (perhaps more so) for our professional skill set as traditional legal advice and advocacy. Coaching for self-advocacy integrates legal knowledge with procedural know-how, attention to apparently obscure details that lawyers understand to be important, strategic savvy, advocacy tools (now shared with the client), and the lawyer’s experience and understanding of how conflict develops and may be resolved.
The Client will answer (some/all of) their own questions with the Coach’s assistance
Second, in a “pure” coaching model (such as the models developed for executive and life coaching in the last ten years), the coach asks the questions and the client (NOT the coach) answers them.
This is an inversion of the classic delivery model for professional advice – in which the flow of information goes in just one direction with the lawyer answering the clients’ questions - and different from customary interactions focusing on substantive legal information. Instead a lawyer-coach would pose pertinent questions (for example, what are your most important needs and goals and why are these so important to you? Is there anything that you feel that is non-negotiable? What are the (financial, psychological, business, social) consequences for you if you do not resolve this by an agreement with the other side?). The purpose here is not for the coach to provide the answers, but to assist the client in developing and evaluating their own answers.
Of course, lawyer-coaches would not have to adopt this approach – presumably lawyers would also provide some formal advice, more on this in Part 2 – but we might expect it to have some impact on the lawyer-coach role. There is a reason why (for example) executive coaching is about assisting business executives to resolve their problems rather than telling them what to do. We should anticipate from consistent complaints about the traditional “lawyer-in-charge” model that a less paternalistic approach will be a selling point for self-advocacy coaching.
Coaching as a Partnership Model for 21st Century Clients
From the meekest to the most assertive, SRLs in my study told me over and over that they do not want to be simply told what to do by an advisor who seemed to have their own agenda and appeared uninterested in their concerns, expectations and needs. They did not want to have “expert advice” rammed down their throats before they felt that they have really been listened to and their point of view acknowledged and taken seriously.
Some SRLs discovered this problem as they “interviewed” prospective lawyers. “A lot of lawyers told me what they wanted to do as if it was them making the decision.” They were coming face-to-face with what a lawyer in an earlier study (Culture Change, 2001) described to me as “(Our) tendency – notwithstanding that we say “…(o)n instructions from my client”…that what we are really doing is telling our clients what they should do.”
Supporting the Bench
Strange though it might seem, the development of a lawyer-coach model could win some allies among what is often regarded as the most traditional element of the profession – the judiciary.
Faced with a choice between a SRL who had access to a lawyer-coach for hearing preparation (covering topics such as how to address the court, when to expect to speak and for how long, how to present evidence, how to intervene appropriately, how to stay calm and centred, etc) and one who has not – which do you imagine a judge would prefer?
If for no other reason, lawyers should consider supporting the development of a lawyer-coach model as a way to practically support judges and render their courtrooms more functional when a SRL appears. And if lawyers don’t step up to this, it is worth noting that a carefully constructed coaching model would allow non-lawyers and law students to offer this type of pre-hearing coaching – albeit in more limited ways than lawyers, but nonetheless providing critical support and assistance.
Does Coaching offer Clients something they Want?
Not every client will want coaching. Many (primarily those who can afford it) will still want full representation. Others will want to be coached at some points and fully represented at others (for example when they can afford this, and/or feel that they simply must have this level of assistance, for example for an important hearing).
But self-advocacy coaching will come to fill many of these representation gaps, whether we like it or not. So if the profession is to be proactive – on top of the wave, not under it – they need to begin thinking about what lawyer-coaching could look like, and how to develop best practices.
There are many, obvious, challenges here – among them role definition (and expressing this clearly in a retainer agreement), skills-building, marketing (the public that rarely connects the legal profession with this type of practical, focused assistance in achieving their goals) and much more.
But dealing with our access to justice crisis is not going to be easy either. And part of that is figuring out how to give people what they actually want.