While legal-related self-help materials may be “accessible” (available in plain language) they are not always “deployable” (actually used by a person to deal with their legal problem). I learned this lesson the hard way. Recently, I was asked to create a simple list of civil negotiation and conflict resolution “tips” for use by people unrepresented by counsel. I figured this would be a relatively simple task drawing on my legal and mediation background. I also assumed that I could mimic plain language and aimed for a Grade 9 level. I shared my draft with my colleague for comments and, thankfully, she was brutally honest: my list was too long, too complicated, too legalistic and had too many words. I realized that being good with words wasn’t enough. In fact, being too good with words highlights assumptions that create significant barriers for the very people we are trying to assist.
I was so excited to find recent research published in July 2015 by D. James Greiner, Dalié Jiménez and Lois R. Lupica entitled “Lay Deployment of Professional Legal Knowledge”. (Note 1) The entire article is well worth reading. Here are some highlights that I found particularly helpful:
1. There is a difference between “accessibility” and “deployability”:
“Self-help materials cannot be successful unless two conditions are met: (i) when the lay would-be user can find materials in a timely manner (are self-help materials accessible?), and once found, (ii) when the lay would-be user can successfully use the materials to advance his or her cause (are the self-help materials deployable?).”
My experience is that, at least in BC, justice reform efforts have focused primarily on accessibility. However, this article suggests that we need also to address the many barriers to deployability including “a lack of self-agency, a lack of knowledge or how to negotiate, and (we hypothesize) a struggle against debilitating emotions such as fear, shame, guilt, or hopelessness.” The authors explain that self-agency means that a person must both believe that her interests are legitimate and have the self-confidence and assertiveness to pursue those interests.
Even if self-help materials are available a person may fail to take action due to anxiety (leading to paralysis), a feeling of being overwhelmed (“overtaxed bandwidth”) or an unfamiliarity with “legal mundanity” (what we insiders know instinctively but are foreign and intimidating to outsiders, such as when to stand up and when to sit in a courtroom).
The writers say that self-help materials must address these issues, including the “broad range of negative emotions experienced by these individuals”, or the information provided will not be deployed.
2. As lawyers we can often be our own worst enemy:
Self-help materials usually attempt to educate the users about legal concepts. The article suggests that education about legal concepts (context, background and nuances of the applicable law and legislation) may not be necessary in every situation. Many steps can be commoditized (i.e. step by step instructions) and an over-emphasis on legal concepts can interfere with the person’s deployment of the information. This is hard for lawyers to comprehend – isn’t that what we went to law school for? Yes, but maybe that deep knowledge can get in the way of clear communication leading to action.
In fact, the authors suggest that law students should be involved in the creation of self-help materials because they have “an absolutely critical asset that most practitioners and law professors lack: inexperience.” Also, the article notes:
“Our testing process has demonstrated that sometimes what we (as attorneys, legal academics, and law students) find obvious, clear, and intuitively appealing is not always what individuals in severe financial distress find helpful”.
They advocate “thinking like a non-lawyer” (Note 2) because:
- Legal problems experienced by human beings requiring irreducibly complex judgments is smaller than the legal profession currently assumes;
- The recipe for solving the legal problems of human beings has five parts mundanity and four parts psychology for every one part formal law; and
- Even that one part formal law can often be commoditized.
3. Words are not enough:
In order to assist deployment, the article includes a lengthy shopping list of practical and thoughtful suggestions, including that materials should include:
- Lots of illustrations and cartoons
- Role-plays and visualization (to increase self-agency)
- Details to demystify legal mundanity
As well as tips about how to make the words take shape on the page:
- Content overviews and advance organizers
- Plain Language
- Careful typography and page layout
- Commoditization when possible (including scripts)
- Analogies to educate about concepts
I found the role play piece interesting. This builds on research from social innovation that establishes that while “knowing” does not always translate into “doing”, doing can create knowing.
4. Rigorous testing with the target audience(s) is critical:
The article’s reminder about testing and iteration reminds me of the need to involve the public in all stages of reform efforts, including design.
5. Learn from other fields:
Much of the article draws on learning from other fields (education, cognitive psychology and health, for example). Justice reform efforts also need to reach out to other fields for research, insights and solutions.
This approach may be well-known to PLEI professionals in BC. However, many of us are publishing materials for the public on a daily basis. I am comforted that I am not alone in struggling to create successful self-help tools and encouraged that there are inspirational ideas out there to draw upon. Now, back to that “tip sheet on negotiation”!!
Note 1: D. James Grenier is the William Henry Bloomberg Professor of Law at Harvard Law School; Dalié Jiménez is Associate Professor of Law & Jeremy Bentham Scholar at the University of Connecticut School of Law; Lois R. Lupica is the Maine Law Foundation Professor of Law at the University of Maine School of Law. They were kind enough to grant me permission to cite their work in this post.
Note 2: Admission – I dislike this term and prefer “people without a legal background”.