The justice system (and the court system in particular) is complex and can be very confusing and intimidating for people. Access to justice efforts are focusing on ways to alleviate these pressures. Progress is slow but determined with some hopeful glimpses of progress.
What continues to disturb me are the surprisingly frequent references to both clients and self-represented litigants (“SRLs”) as “difficult” or “obsessive” or suffering from mental health challenges. [Note 1] A recent example is the current series from Lawpro on “Dealing with the Difficult Client”. Part 3 (March 23, 2017) focuses on “the obsessed client” described as “the one that emails you at 2 a.m. about an aspect of the case”.
No doubt this can be annoying behaviour, whether it is the lawyer’s own client or the other party who is representing themselves. However, why the compulsion to immediately label that person with these derogatory terms? The labels serve to lay blame and shift responsibility solely to the client. Usually, is not the lay litigants who are difficult; the system is unduly complex and designed for lawyers and often for judges.
Making the system work better depends on our ability to shift it from lawyer/judge-centred to public/user-centred. This means deliberately forcing ourselves to try to see things from the user’s perspective [Note 2]. A bit of empathy can go a long way to understanding the person’s situation and the struggles they are facing. What appear to be “obsessive” behaviours might well be symptoms of some much deeper and more pressing needs. How can a lawyer develop strategies that will deal with more than just the surface issues and remain respectful to the person?
Recent research suggests two helpful perspectives:
Hidden Brain’s host, Shankar Vedantam, introduces his podcast The Scarcity Trap: Why We Keep Digging When We are Caught in a Hole (March 20 2017) [Note 3] with the following:
Have you ever noticed that when something important is missing in your life, your brain can only seem to focus on that missing thing? …
(Scarcity) “leads you to take certain behaviors that in the short term help you to manage scarcity, but in the long term only make matters worse,” says Sendhil Mullaianathan, an economics professor at Harvard University.
Several years ago, he and Eldar Shafir, a psychology professor at Princeton, started researching this idea. Their theory was this: When you’re really desperate for something, you can focus on it so obsessively there’s no room for anything else. The time-starved spend much of their mental energy juggling time. People with little money worry constantly about making ends meet.
Scarcity takes a huge toll. It robs people of insight. And it helps to explain why, when we’re in a hole, we sometimes dig ourselves even deeper.
Here are the key insights I took from the podcast:
- Scarcity affects all of us; all of our brains work this way regardless of background, culture, socio-economic status
- Scarcity can be of many kinds: money, expertise, information, knowledge, time, resources, support, love etc. (people encountering the family justice system likely experience many of these all at once)
- Just educating people in scarcity won’t help them
- Scarcity enslaves us involuntarily
- Scarcity decreases our brain’s “bandwidth”
- It also reduces our insight; we have a lack of self-awareness; we make poor decisions.
2. Cognitive Bias and Stereotyping:
Professor Julie Macfarlane explains this perspective in her post “Stereotypes Hold Us Back: Challenging Our Assumptions about A2J with Real Data”. We all have and use stereotypes and unconscious biases that affect our behaviour. She unpacks and defines the sources of these stereotypes (selective framing, attribution bias and attempts to reduce cognitive dissonance) and then identifies a common stereotype – that many SRLs are crazy, demonstrated by their extraordinary fixation on the details of their case. She responds to the assumption that obsession with one’s case evidences mental instability by saying:
“If you are acting on your own in an unfamiliar and sometimes overwhelming system to attempt to (e.g.) retain access to your children, it is hardly surprising that you would focus as much energy as you possibly could on this.”
In other words, put yourself in your client’s position. Could you really say that you would not exhibit some “obsessive” behaviours when you were facing such a monumental challenge? What if you were worried you would be fired due to the time you were spending on your case, or your physical health was suffering from stress and lack of sleep or…? It would have been helpful for the LawPro piece to include some encouragement for the lawyer to try to see the whole matter through the client’s eyes rather than focus only on protective measures. A conversation with the client about the whole of their situation might well uncover other ways for the lawyer to help and open the door to how lawyer and client can work in collaboration to achieve the best result for the client.
These insights have significant implications for social policy, including the way the justice system operates:
- We need to make the system more “scarcity sensitive” – so it can help people who are experiencing scarcity and its consequences
- We need input from other disciplines that understand human behaviour (this is not taught at law school)
- It certainly doesn’t help to criticize or think less of the people who are struggling with scarcity. People are often doing the best that they can but still digging their scarcity hole.
This isn’t just about how lawyers can protect themselves from annoying behaviour. A key question is: how can lawyers respond with sensitivity to assist clients experiencing scarcity (or to respond to other parties struggling with scarcity) using strategies directed to the underlying issues.
A little empathy can help.
Note 1: I’m assuming that these issues are more common with individual clients rather than corporate clients.
Note 2: See, for example, the six-part series of posts on the BC Family Justice Innovation blog about what it means to be public-centred.
Note 3: I highly recommend this excellent podcast!