Providing Legal Services in a Coaching Model: The What, Why and How
(Ed. note: This is the second of two parts on providing legal services in a coaching model. The first part is available on Slaw.)
Returning to the question of whether, and how, lawyers could provide coaching in self-advocacy for SRL’s, let me first put a few pertinent findings from my 2013 SRL study upfront.
86% of the (n=259) SRLs in told me that they had sought the assistance of a lawyer – via either the private Bar, a pro bono service, or Legal Aid. 53% had originally had counsel representing them; a further 33% sought pro bono legal services (although they did not always qualify for assistance).
Contrary to the popular narrative, the vast majority of SRLs are not acting alone because they think that they can do a better job than a lawyer. Rather, SRLs are alone because they cannot afford a lawyer and do not see legal services as providing them with value-for-money. These two propositions are inextricably entangled in a contemporary consumer culture looking for “more-for-less” (Richard Susskind).
Many of those I interviewed had money they would spend on discrete tasks that would assist them with self-advocacy, but were unable or unwilling to pay a substantial retainer and then surrender their case to a billable hours model.
This second blog on how lawyers might offer coaching to SRLs drills down further into the specific types of assistance SRLs say that they need and that lawyers could provide – services that lawyers could sell.
What do SRLs say they need from lawyers?
Managing their cases alone, some SRLs have become fairly competent legal researchers, commonly making extensive use of Can-Lii. We may scoff at this reality, or rail against it, but it is true. Just watch the oh-so-impressive Elizabeth Bernard (the first SRL to address the Supreme Court of Canada for many years) delivering her oral arguments a few weeks ago. Certainly Elizabeth (get in touch!) is exceptional, but a fair number of the SRLs with whom I have talked over the past two years – and many lawyers confirm this to me – have a pretty sophisticated grasp of the law as it affects their case and have spent hours reading precedents on CanLII.
What the SRLs in my study most frequently describe as their primary struggle is not basic legal knowledge, but procedural know-how, drafting (forms, pleadings and other precedents) the development of strategy and the evaluation of settlement proposals.
And those who also feel overwhelmed at the idea of making legal arguments similarly emphasize their despair over navigating procedure, completing documentation correctly, and dealing with the other side. One respondent memorably told me, “I’m really good if I can put a wrench on it, but I couldn’t put a wrench anywhere on this problem.”
So what kinds of coaching might lawyers offer both this individual, and even the redoubtable Elizabeth Bernard?
A ”menu” of coaching services
In conversations this week and last with colleagues working on a small SRL coaching experiment we have come up with four possible “baskets” of coaching assistance.
While not intended as an exhaustive list, I offer this as a beginning framework for thinking about coaching services. This “menu” recognizes that a client might choose services under more than one head, and may return for further services, separately contracted, as their case progresses.
Procedural coaching
This means assisting a client to understand court rules and procedures, including the identification of appropriate court forms, their accurate completion, filing and service procedures, the submission of evidence in advance of a hearing, and next steps at any stage in a particular legal process (eg interim proceeding, full hearing, appeal etc). This might include advising on which of several available procedures a litigant should follow, or offering an interpretation of applicable procedural rules based on the specific facts of the client’s case.
Hearings coaching
At times overlapping with procedural assistance (above), hearings coaching would include: explaining the expectations that a judge or master has of the parties, such as when they will be asked to speak, how they should address the third party, how to organize and present materials, how to structure an oral presentation, how to dress for the hearing, and so on. Some of this coaching assistance would be in response to client questions, and some questions posed by counsel (What is your most important point? What is the information that makes that point most strongly/credibly?) in order to assist the client in focusing and structuring the presentation of their case.
If the lawyer accompanies the client to the hearing, the lawyer-coach could further assist by (for example) explaining the meaning of legal expressions used by a judge or other court officer, provide on-the spot advice on how best to respond to the other side and/or to the judge /hearing officer, and to ensure the client understands the outcome of the hearing and any next steps.
Negotiation/ settlement coaching
We all know that negotiating a resolution in a conflict that matters a great deal to us is a very difficult thing to do. SRLs are no different – plus they are often intimidated or confused by now commonplace legal procedures that try to nudge the parties towards settlement, including mediation and settlement conferencing.
Negotiation coaching could include both procedural advice about these processes, and assistance with identifying possible areas of agreement and even preparing a settlement proposal. The types of questions one might expect a lawyer-coach to ask when working with a client on a potential agreement (or evaluating a proposal advanced by the other side) might include:
- What are your most important needs and goals and to what extent does this agreement meet them?
- What are your bottom lines / what if anything do you feel is non-negotiable?
- Have you thought about reaching an acceptable outcome via a series of interim agreements or incremental steps?
- What do you think is the biggest obstacle to you reaching an agreement? Is there any way to reduce those obstacles?
“Traditional” / substantive legal advice
Finally, a lawyer-coach could provide a short legal analysis based on the information provided by the client. This sounds like a traditional summary legal advice session. The important difference is that when the summary legal advice model was first developed some 40 years ago, everyone who went forward with a case after summary legal advice hired a lawyer. That assumption can no longer be made.
What legal advice as coaching does not mean is throwing everything at the client in 30 or 45 minutes of rapid-fire talk. Some respondents in my study came out of summary legal advice sessions more confused than before and ill equipped to know what they next steps should be (including whether to withdraw).
Substantive legal advice now needs to be provided on the assumption that the client will go forward with part or all of the case unrepresented. The coaching question is: what advice is most useful to equip this client for the next steps in their self-advocacy?
Building a coaching practice
The tone and tenor of a coaching model fits so much better with what SRLs described to me as the type of assistance that would really help them – and repeatedly complained that they did not get in a traditional legal services model.
There are so many ways in which lawyers can help to coach SRLs. But this sounds like a much harder way to make money than taking a traditional retainer. Working this closely with a client may be aggravating. And riskier, surely?
I cannot provide definitive answers to these reasonable questions because we do not yet have the data to show that an unbundling practice makes money (although common sense suggests that it must), or that limited scope retainers properly drafted and explained would result in more complaints than traditional retainer agreements (although I would be willing to bet a large sum that they would not).
For new lawyers building a practice, as well as for more experienced lawyers who enjoy working closely with clients, the lawyer-coach model deserves your serious consideration. It offers the potential of reconnecting legal services with the type of practical, focused assistance that both existing and potential clients would welcome in achieving their goals.
Maybe this is already being provided however, just as there are legal aid clinics are there no clinics with a combination of permanent and volunteer staff — lawyers, paralegals, social workers — to provide the needed guidance or coaching to SRLs with fees dependent on the economic circumstances of the SRL?
In my last comment in this series I suggested that the risk to practitioners for providing limited scope services such as coaching can be minimal if executed properly. What I did not address is whether they should, and more importantly if it is of actual benefit to the client as these services are currently offered.
I don’t have an immediate answer to this, as our inquiry into the issues are really just preliminary at this point. But I would turn to the recent CBA paper released last week, Reaching equal justice report: an invitation to envision and act. Page 94 of the report addresses limited scope retainers and states:
They specifically refer to obstacles identified in the Macfarlane report of SRLs being unable to properly integrate all of the information and knowledge they obtain. Although some SLRs may become quite competent researchers, it appears they still lack the ability, skills and insights to apply their research to their own cases.
For me this raises a professional responsibility question. If lawyers know that limited scope retainers, as they are currently offered, do not necessarily provide the outcomes these clients expect them to, is their an obligation to inform them of this at the outset?
We already know that communication breakdowns are the primary source of claims against lawyers. If a SRL fails to get a desired outcome they can still blame a lawyer who assisted on a limited scope, even though the failure really stemmed from their own inability to integrate this assistance. But if we tell SRLs that the assistance is of little or no use to them at the outset, what market is there really for providing these services to begin with?
I go back to my previous comment and reiterate that in order for this approach to be executed properly there will need to be coordination and planning across the bar, providing templates and resources and training sessions specifically for coaching services, for example. We may want to even look into developing a certified legal coach credential of some sort. Without this we simply lack the quality control in a market which already has so much variability, and by doing so hopefully we can make coaching services more practically useful for SRLs.
Thanks Omar for this comment which alerted me to the reference in the final CBA report to my report in the context of LSR’s at p94 of the report (holidays have interrupted this essential reading!). I am concerned that this is an (unintentional I am sure) misrepresentation of what my study showed about LSR’s, namely (1) almost all the SRL’s in my study sought some form of limited scope representation, but only a few obtained it (2) many had a very concrete idea of what they would like assistance with (e.g. document review, preparation for a hearing) and appeared realistic that this was all they could “purchase” i.e. all they could afford. I would also suggest that the concerns about the difficulty of some SRL’s using limited services effectively is consistent with another (but different) finding of my study, namely the limited usefulness of a 30 – 45 minute summary advice session which is simply an overview of the law – this is something that many of my respondents found overwhelming and generally unhelpful. For LSR’s to work intelligently in this context they needs to be focused 0n a particular issue or issues and perhaps one of the “baskets” I set out above. I think that many SRL’s are quite capable of identifying what they would like help with, and then taking and using that assistance effectively.