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.
Orthogonal to coaching, a lawyer might well wish a client to research factual issues, especially anything the client has some experience with, to help identify facts the lawyer might not know to as about, and especially to exclude researching blind alleys from becoming part of the lawyer’s more expensive efforts.
In a non-legal context, a librarian friend was able to tell me in a moment why an entire subject area in library provisioning was *not* going to be relevant to me. Unless, of course, I was rich enough to become another Andrew Carnegie (;-))
Sorry about the run-on sentence… brain << mouth
A great and important proposal. In one sense, Julie is proposing a new paradigm for lawyers, empowering their clients as SRLs. However, in another way, what she is proposing is just extending what lawyers do in many other areas of the law to litigation. For instance, lawyers provide legal advice to clients re HR but don’t actually do hiring, discipline and firing with employees. Lawyers may advise tribunal members about the law but don’t actually adjudicate for the tribunal members, etc. It may only be in litigation where lawyers have traditionally adopted an all or nothing approach because litigation was seen as the sole province of lawyers. That is no longer unrealistic and as Julie has sketched out above, it is no longer just.
From a lawyer’s perspective, until we can control the Court’s response to limited representation, I am wary about client coaching.
It seems that lawyers can find themselves trapped with a client that can neither afford their services or listens to professional judgement.
Until the Courts recognize limited-scope representation in a greater variety of matters, this is a tough situation to manage.
As a lawyer who has worked in small claims courts, my clients need for affordable access to justice is a problem I have struggled with. I’ve spent a lot of time developing MyLegalBriefcase, which is a website dedicated to helping people navigate Small Claims Court, but the website isn’t always the answer. Sometimes when a person contacts my firm about a matter in small claims court, we discover that us representing them as legal council is not practical, and we instead help the individuals act as self represented litigants.
One of the routes we often take when working with SRL is to provide them unbundled services. From help filling out a statement of claim, to writing a letter seeking settlement, providing unbundled services often requires us to explain those services in the context of the court process. One of our biggest hurdles is the difficulty some SRL have approaching a case from a pragmatic point of view. When guiding a SRL through what to expect as part of the legal process, lawyers and paralegal at my firm still believe we have a responsibility to be realistic in setting the expectations of a client. That duty can be difficult to convey in a coaching relationship.
Developing a relationship with SRL is a difficult area because it falls on the borders of traditional regulatory spaces. The details of the ethical requirements for lawyers working with members of the public without representing them is one that needs additional dialogue.
I recently listened to a CBC radio program on SRL. The overriding message conveyed was also voiced in this article- namely, SRL represent a segment of legal service consumers whose needs are unmet, largely due to their financial constraints.
I sympathize with Joshua’s comment that the court needs to recognize limited-scope representation in order for lawyers to more confidently serve SRL as a regular clientele. However, I also agree with Julie’s point that the bench will appreciate an SRL who has some guidance by a lawyer than an SRL who has none. Perhaps transparency before the court with respect to the role of a limited-scope lawyer is part of the key to win the bench’s understanding and recognition of limited-scope representation. After all, candor is always well-appreciated.
The role of a limited-scope representation lawyer raises another interesting issue. To what extent, from a legal service insurance point of view, can SRL rely on their limited representation lawyers? I.e., when can a limited-scope representation lawyer be liable to SRL? The obvious answer seems to be a detailed retainer that will outline the exact tasks, extent of involvement, and the scope of legal advice provided so as to delineate clearly the lawyer’s responsibilities. With my baby-experience in law, this seems idealistic. The practical application is probably a lot more challenging. If possible, I would really appreciate Julie’s take on the issue of LawPro insurance in her sequel.
Further, when does coaching becomes practice of law? Practice of law is regulated by law societies, but if law students and non-lawyers are able to take on a coaching role, how will this coaching profession be regulated, if at all? While I personally dislikes the floodgate argument, I do see the danger of an unregulated legal coaching industry that may worsen instead of enhance SRL’s battle in the judicial system. How will then legal coaches be held responsible to their advice or provision of legal knowledge? Again, Julie, and others’ take of the issue will be appreciated.
I would suggest that the 2011 rule changes by LSUC already allow courts to control a court’s response to limited representation in Ontario.
A lawyer is better protected, and less likely to be appointed counsel of record when they don’t want to be, if they have a very carefully drawn up retainer agreement which significantly limits their scope, and if the court is informed of this limited role at the outset. In the context of coaching, where lawyers are not making an appearance in court and do not have their names on pleadings, the risk of being deemed solicitor of record is negligible in my opinion.
The reality is that in some areas of law unbundling and limited scope retainers are not new, and are already being done by the bar in increasing numbers. Coaching is also growing in popularity. The trick is to do it right. Are lawyers properly trained to provide coaching services, and are there programs available to train the trainer? How will the insurer deal with coaching, and what if a client is dissatisfied with the “suggestions” (not advice) that they received?
I would strongly recommend a recent OBA event I attended on the subject for those interested in doing this the right way. The materials include templates for the proper execution of limited scope retainers, and helps identify some of the risks and shortcomings for practitioners.
” What You Need to Know to be Comfortable at FSCO The Pre-Hearing Process”
Below is an example of some “coaching” aimed toward personal injury lawyers. There is nothing in this FSCO senior arbitrators’s helpful tips that is so overly-complicated that it would overwhelm the comprehenson of SRLs. This document could as easily have been aimed toward SRLs rather than lawyers. One of the biggest hurtles faced by SRLs is lawyerly penchant for exclusionary lexicon designed keep the unwashed, unrepresented litigants off your turf. That isn’t to say that SRLs can do all that lawyers can do. Only to say that they aren’t nearly as stupid as as they are painted by many lawyers. If easy to understand documents like this one intended to help lawyers were made equally accessible to SRLs – surely they would be better prepared and then there would be less “need” for so many lawyers writing columns that belittle and ridicule SRLs.
http://ebookbrowsee.net/fsco-pre-hearing-pdf-d186415216
fsco pre hearing pdf
What You Need to Know to be Comfortable at FSCO The Pre-Hearing Process
The fact that so many people do appear before the courts unrepresented is, ironically, a credit to an open democracy and an independent judiciary. However, coaching people to get something they want, without considering whether they actually need it, can actually backfire by enabling more people to seek what they do not need. There is a Malthusian moment to be considered at any time you enable a population to obtain access to resources already subject to strained capacity to supply.
A more fruitful exercise would be to study how we can help unrepresented people make informed decisions whether a court proceeding is what they need to achieve what they want. This would not be advice but education. We did this at the bar association for high school kids in a program called “So you think you can sue?” In the age of MOOCs, Ted Talks and open universities, a course like that should be made as accessible as taking an evening course in art history or ballroom dancing.
RE: “A more fruitful exercise would be to study how we can help unrepresented people make informed decisions whether a court proceeding is what they need to achieve what they want.”
Mr. Akazaki,
One doesn’t have to look long or far to find cases illustrating the need to “help” lawyers make better “informed decisions” as to “whether a court proceeding is what they need to achieve what they want”. So how does your suggestion help in terms of “coaching” SRLs who actually need to go to court – or was it merely intended to be dismissive?
2013-12-04 Blake v. Dominion of Canada General Insurance Co., 2013 ONSC 7445 (CanLII)
Rule 57.01
[4] This rule enumerates a list of factors above and beyond the results which no doubt favour a particular party and any offer. This commencement in some ways underlines the importance of the making of an offer. An offer is made to avoid the necessity of a trial and as such requires an appreciation of the relative risks or the risk of failure and/or the challenges each side faces. Canadians are aware of the expenses associated with litigation, an expense that is necessary to achieve a particular result. Because costs can eclipse the result obtained, by necessity there must be a risk appreciation engaged in by the parties and for those with counsel with the advice and direction of their counsel.
[5] Rule 57.01 evolves into a consideration of several factors, the amount claimed and the amount recovered, the complexity of the issues and the importance of the issues. There is also consideration of the litigation comportment, i.e. behaviour which tends to shorten or lengthen a proceeding. Obviously such a factor seeks efficiency in the use of extremely expensive resources. Litigation efficiency does not tolerate improper, vexatious and unnecessary behaviour, or for that matter negligent behaviour.
[6] This recognition of the need for efficiency again invariably focuses on the risk appreciation referred to above. Counsel representing a plaintiff in the context of the accident benefit regime has a duty to inform the client of the particular risks associated with their claim. In this matter counsel would no doubt have told Mrs. Blake of the possibility of her being statute barred. This is not an inconsequential risk as she faced the emotional demands of testifying and being a person of modest means. The costs judgment could not be satisfied by her in her lifetime without a major lottery win.
Mr. Akazaki you write, “a course like that should be made as accessible as taking an evening course in art history or ballroom dancing”. IMHO, I doubt whether the majority of SRLs have the time to indulge in such endeavours. Perhaps, we’re ALL in need of less advice and more education as you suggest.
To a SRL, what is the difference between ‘Advice’ from their legal representative, and ‘Suggestions’ from a coach?
Imagine if doctors had the discussion, “Can I help a patient without being their ‘family doctor’?” “What are the proper methods of helping a patient while minimizing any responsibility for their well being?”
I think this last post may reflect a misunderstanding – which of course I take responsibility for. To be clear, when I write about lawyer-coaches providing both advice, and assisting clients by using coaching questions, both would be in a professional capacity i.e. as their lawyer. This would be reflected in a LSR for the purpose. The difference is not whether or not the lawyer is acting as a lawyer – they are in both instances – but simply in how they frame their assistance in order to offer the most useful assistance to the client (who will be continuing on alone).
The medical analogy is in fact relevant. The the equivalent to SRL’s in the health care system are the self-diagnosed patients. Self-diagnosed is better than undiagnosed. So a certain amount of diffuse ‘education’ means the public is less at the mercy of the medical profession. But you are also creating demand for medical treatments among those who do not require them. You then need to boost public health education in order to make the empowerment more useful to the patient.
As a matter of public administration and epidemiology, there is a role for encouraging patients to eat better and take exercise as opposed to self-medicating or showing up at hospital asking for an operation. A day in court is like a hospital operating theatre or an MRI, even without lawyers involved: scarce and expensive. Few appreciate that a courtroom costs thousands of dollars a day, without the cost of lawyers. If hospitals provided access without physician referral, those who want the services will swell the ranks of those who need it.
Julie, thank you for leading this discussion. All the comments have been constructive and respectful, as well as reflective of the points of view on this issue.
Julie,
Great and interesting post – looking forward to the next one.
You are, as Adam points out, suggesting a bold new paradigm for legal services that is long over due.
Too often our profession and our court system remain anchored in practices and procedures that made perfect sense in 1950 – but no longer do so.
Lee points out the cost of courts, and he is correct. so perhaps the current, go to court, sit in a queue all day only to have your case put over, is not the best way to operate a judicial system.
Nor is it acceptable for the current judicial system to lose files or not be able to have an up to date scheduling system.
If we continue to view access to justice through an outdated lense that is fixated on an ancient method of delivery, we are lost.
Moreover, it is trite to say that the economics associated with the ancient method no longer work for the every day Canadian.
Forward-thinking lawyers will adapt to Julie’s findings – afterall she’s providing us with the “voice of the client.” So, why wouldn’t we listen?
Further to my previous comments, at page 18 of the landmark Canadian Bar Association Report, Equal Justice, the CBA agrees that public education is a key to access to justice:
Law should be seen as a life skill, with opportunities for all to develop and improve
legal capabilities at various stages in their lives, ideally well before a legal problem arises. Law is a fact of life in the 21st century. Almost everyone will experience a legal problem at some point in their lives, but until that happens, most people don’t know what to expect from the
justice system, the benefits of different paths and legal services and so on. Those involved in
the justice system and in legal service delivery have a shared responsibility to increase the
legal capabilities of everyone in Canada. Building legal capability involves knowledge,
skills and attitudes. Teaching law as a life skill also helps to cultivate trust and confidence in
the justice system. All justice system participants can find ways to help build capability in their
daily contact with members of the public.
So if you’re able to learn what a quadratic equation is, you should be able to learn something about the basic procedures, risks and consequences of representing yourself in court. Or make an informed decision whether someone has actually wronged you, whether you might be the one in the wrong, and so on.
RE: ” if you’re able to learn what a quadratic equation is, you should be able to learn something about the basic procedures…”
What?? I am not a lawyer but I have Master’s level university education. Yet I have no clue what a quadratic equation looks like; much less how to solve one. If this is a criterion for understanding “basic procedures” – that might explain why the ligation landscape is littered with so many cases in which unqualified experts were able to proffer unchallenged, unqualified “expert”opinion evidence. Seems to me that checking the qualifications of opposing experts (and challenging them whenever it is appropriate to do so) is about as basic as it gets. Yet lawyers (especially in the personal injury context) frequently fail to do so. Maybe that’s because not all lawyers (like not all non-lawyers) are a whiz at quadratic equations?
RE: ” perhaps the current, go to court, sit in a queue all day only to have your case put over, is not the best way to operate a judicial system”
MR. Kowalski – Any right-thinking person would agree. Alas, many members of the bar are forever married to the status quo – an approach which has thrived since long before the fifties. Some lawyers (the ones who think having to listen to an SRL is a waste of time) ought to be “sentenced” to read Dicken’s “Bleak House”. In a hundred year the CBA will still be feigning its quest for a fix.
P. 7
“Several member of the bar are still to be heard, I believe”? says the Chancellor, with a slight smile.
Eighteen of Mr. Tangle’s learned friends, each armed with a little summary of eighteen hundred sheets, bob up like eighteen hammers in a pianoforte, make eighteen bows, and drop into their eighteen places of obscurity.
“We will proceed with the hearing on Wednesday fortnight,” says the Chancellor. For the question at issue is only one of costs, a mere bud on the forest tree of the parent suit, and really will come to a settlement one f these days.