July 29, 2024
By Bob Glaves | CBF Executive Director
By unpopular demand, “Banned Words for Access to Justice” is back for another encore. I have a new addition to the list this year sure to rankle many, along with some repeat offenders, a new watch list candidate, and one that continues to rise above all others in shame.
As has been true from the start, while compiling this list remains an amusing exercise in many ways, those of us who care about access to justice use many terms that do our cause no favors. These are words and phrases that are not used with any ill intent, but either don’t mean anything beyond the proverbial choir (which is much smaller than we may assume), don’t necessarily mean what we think, inadvertently can turn people off, or are just wrong.
The New Addition: Self-Represented Litigant/SRL
The newest addition to the list is “self-represented litigant,” or SRL* as it is often shortened to in conversation. It is an illusion to suggest that people proceeding on their own in court, which is usually not by choice, are “represented” in any reasonable sense of the word.
* See below for why the acronym “SRL” independently deserves a ban as well.
Yes, there is a small group of litigants who consciously choose to act as their own lawyer even when they have the option of being represented, and perhaps it is appropriate to call them “self-represented.” However, that is not the reason most people are proceeding without lawyers today.
The great majority of people are unrepresented because (a) they can’t find affordable legal help or (b) they appropriately believe it is unnecessary to be represented for some or all aspects of their case (e.g., minor traffic tickets and other lower stakes matters, routine procedural parts of otherwise more complex of higher-stakes cases).
The reality today is there is not nearly enough free and affordable help to go around, leaving far too many people struggling to proceed on their own in the court system. We need to continue to work towards ensuring that all people have realistic access to the level of legal help they need to get a fair shake.
In the meantime, we need to stop kidding ourselves by calling people who are proceeding on their own “self-represented.” I am not suggesting we go back to calling them “pro se,” which effectively is saying the same thing in a more confusing Latin form. Instead, we should call them what they really are: “unrepresented litigants” or “people without lawyers.”
Repeat Offenders
Acronyms
Acronyms were a new addition to Version 2.0 of this list, and the case has only gotten stronger. I am sure every industry–including legal–uses acronyms to some degree, but even within the broader legal profession, we love to use acronyms in the access to justice space. And with rare exceptions, people who are not already a part of the proverbial choir have no idea what we are talking about.
Whether it is SRL noted above or LSO that follows below (which both make this list for other good reasons), or the alphabet soup of acronyms used to refer to legal aid organizations in our community, outside of those regularly working in this space, no one has any idea what we are talking about.
I have been guilty of this one in some instances myself, and I’ll repeat my prior suggestion in version 2.0: the next time you are about to casually toss out an acronym in this work, think about your audience. Are you sure they know what you are referring to when you use it? When in doubt, and that frankly should be most instances, don’t do it!
Legal Services Organization/LSO
“Legal Services Organization,” now often shortened to LSO, is an outdated reference to the legal aid of yore.
Every lawyer and many other professionals and entities provide legal services as part of their work and thus can be called legal services organizations. But many still use this term to describe legal aid specifically, and we should not be surprised that most of our profession and the rest of the world have no idea what we are talking about when we do that.
When we are talking about legal aid, we should just say legal aid. Public interest law organization is another term that can capture programs that may not offer direct legal services to clients. But let’s save the term “legal services organizations” to refer to the broader group of entities that provide legal services—law firms, legal aid, in-house legal departments, accredited nonprofit representatives, and other alternative providers.
This term, generally used to describe the gap between legal needs in the community and available services, poses problems on two fronts.
First, it is not used consistently even among those who might understand what we are talking about. Some use it to describe the unmet need for legal aid among low-income and disadvantaged people, others use it to describe the shortage of affordable services for the middle class, and some mean all of the above.
The second and bigger issue is that the term is largely meaningless to people outside the core access to justice community.
Instead of using this term that is unlikely to be understood by our target audience, better to describe more specifically the gap we are referring to when we say it (e.g., “most Americans who need legal aid can’t get it today due to a shortage of resources” or “middle-class Americans struggle to find affordable legal help when they need it today.”) No, those are not as catchy as saying “justice gap,” but at least people will know what we are talking about.
Low Bono
This one comes up less often these days, but it is still used by many as shorthand for a lawyer, firm, or program that provides services at lower rates for the many middle-class people and small businesses who find themselves effectively shut out of the market for legal services.
Two big problems with this one: First, if you are the potential client, low bono is a meaningless phrase at best, and once it is understood, would you want a service that was described that way?
The better way of describing it for all concerned, depending on what you are referring to, is: (1) affordable and flexible service options; or (2) sliding-scale pricing depending on income/ability to pay.
A New Watch List Candidate: “Right to Counsel”
In Version 2.0 of this list, I raised the possibility that “access to justice” itself may need to be considered for the list. This was not because of the phrase itself (which of course is a crucial one) but because there is not a common definition, and it can lose all meaning when people use it in different ways. Ultimately, I settled on putting access to justice on a watch list and emphasized the importance of making sure it is properly defined and used consistently.
For similar reasons, while I am not adding “right to counsel” to the banned words list, we have reached the point where it needs to be on the watch list because it is often used far beyond the context where it is an enforceable right.
In criminal cases and some other instances where fundamental rights are at stake, the “right to counsel” has a real legal meaning. If someone does not have a lawyer representing them, the case cannot move forward, and it is an appealable issue when the defendant receives ineffective assistance of counsel.
As there has been more attention in recent years on whether that right should be expanded to civil cases, the problem that is developing is that programs being billed as “right to counsel” are not actual rights at all. Rather, they are initiatives to expand representation in eviction and other cases where critical legal issues are at stake. That is a worthy goal, so long as it is realistically structured to account for the very different legal context on the civil side, an important part of the broader access to justice continuum.
But when “right to counsel” is not a legally enforceable right, unless the program is framed as a pilot (as it is in Chicago and some other jurisdictions), we risk losing the meaning of one of the most important legal rights and setting expectations for the public that we cannot meet.
The Grandaddy of them all and still #1—Stop Calling People Nonlawyers!
We don’t see doctors calling others non-doctors, dentists don’t call others non-dentists, and you won’t hear a CPA calling others a non-CPA. They call others in their profession by who they are: nurses, dental hygienists, bookkeepers, etc. I could go on here, but you get the point: this is a uniquely bad habit of lawyers.
In a time when we all are rightly more focused on inclusion in our work, calling people non-lawyers only looks worse today. As the business of law and the delivery of legal services gets more complex by the day, there are a host of other legal and business professionals who increasingly play integral roles in any successful law firm, legal aid organization, or law department as well as in the broader delivery of legal services.
We can strike a better path by calling others in our profession who they are whenever we can. And when the situation calls for speaking of others in our profession more generally, we can call them “other advocates” or “other legal professionals” (such as paralegals or the many other law firm professional roles), “other professionals” (when talking more broadly about other business professionals like accountants and technology roles), or just “other people.”
The bottom line is there is a better alternative every time, and we need to send the non-lawyer term off into the sunset once and for all. There has been some recent progress on this front, including a formal petition to the American Bar Association that attracted widespread attention and support. Let’s keep it going!
Why Our Terminology Matters
When we’re talking to others in the “club,” these language issues may not seem like they are such a big deal. But if we want to reach the goal of a justice system that is truly fair and accessible for all, our club has to get a whole lot bigger, and as noted above many of these words and phrases suffer from other problems too. Clarity in what we are saying and proper respect for the people we are talking about remain great places to start!