By Bob Glaves | CBF Executive Director
This is part 2 of a 4-part series:
Part 1 A Fool for a Client?
Part 3 A Fool for a Client? A New Agenda for Our Profession
Part 4 A Fool for a Client? How to Avoid Playing the Fool
What is it we do as lawyers that is essential? Startling advances in technology now enable people to do so many things on their own that previously required the help of others. But to achieve true access to justice, lawyers still play several indispensable roles that cannot be delegated to a technological solution.
In Part 1 of this post I raised the question of whether the old adage that a lawyer who represents himself has a fool for a client is still true. I did not pose this question because I’m worried about a surge of lawyers representing themselves. I did so because the origins of that old adage offer a good roadmap for understanding where our services as lawyers are most critical for people facing legal problems in today’s world. And that knowledge has the potential to significantly expand access to justice if we take it to heart.
What does access to justice really mean?
The starting point to examine where lawyers make the most difference is clarifying what we mean by access to justice.
Most would agree the definition includes a person having access to the level of resources or assistance necessary to get a fair shake on the merits of their legal issue in light of the facts and applicable law. But that is only one part of the equation.
There is also the matter of procedural justice, i.e., the person not only actually got a just result on the merits, they believe they got a fair shake in the process. And it is important to remember both sides of this coin when considering the role that lawyers play in ensuring access to justice, as a major new study in the California courts confirmed.
Studies consistently show that in contested matters in court, people have a greater likelihood of success when they are represented by a lawyer compared to when they are self-represented. The new California study confirms that legal representation for low-income people also has significant benefits on the procedural justice side. Litigants in this comprehensive and multi-year study not only got better substantive results when represented by a lawyer, they were more likely to reach lasting settlements more quickly, to be satisfied with the process, and believe they were treated fairly.
These findings are consistent with other research highlighted in the book Humans are Underrated by Geoff Colvin as well as some of the behavioral economics research mentioned in Part 1 of this post. There are a number of areas of our lives law included where even when we can get the answer through an online or technology based solution, we want to hear it from a trusted advisor before we’ll be comfortable with the result or take action on it.
So with these points in mind, what are the key roles lawyers will continue to play that are critical to access to justice?
The Key Roles Lawyers Play
There are four core functions lawyers play today and will continue to play in the future: Diagnostic, Counsel, Navigator, and Advocate.
The Diagnostic Role
One of the most fundamental roles we play as lawyers is learning about the client’s situation, analyzing it based on the applicable law and the lawyer’s experience, and providing an expert opinion to the client about their rights and responsibilities and potential solutions.
Legal problems of course vary from simple to extremely complex, and clients similarly vary widely in their level of legal sophistication in recognizing and understanding their legal issues. As a result, the exact nature of this diagnostic role will change from case to case.
Technology also is making it possible for people to learn more about their legal issues and use self-help tools to find potential solutions. For more straightforward and lower stakes issues that people face, this can be a great option.
The fact remains though, that most legal problems don’t neatly present themselves for people not trained in the law. A good lawyer diagnoses and distills the legal issues for the client, and that is when our next core role as lawyers comes in.
The Counsel Role
People facing legal issues often are nervous, emotional or downright scared, and our role as counselors is critically important. Even when people objectively are getting a fair and proper outcome or think they know the answer, having that confirmed by a trusted advisor is an essential affirmation when the issues at stake are important to them.
There is a reason lawyers picked up the name counselor, because that is at the core of what good lawyers do for their clients.
Perhaps someone can legally file a case or pursue a course of action with their legal issue, but should they do that? And when there is no practical legal solution, a good lawyer can objectively explain why that is the case, suggest potential alternative solutions, and perhaps connect the client with other resources.
A lawyer’s diagnostic and counsel services delivered in timely fashion are enough to resolve most legal problems people typically encounter. For many issues though, more extensive legal assistance is necessary, and that is where the other two core roles of lawyers come in.
The Advocate Role
Our advocacy role as lawyers is another fundamental one, whether we are talking about a court case, a transactional matter, or other legal situations where negotiation with another party will be involved. As noted above, studies show that having a lawyer in a contested proceeding makes a big difference in the substance of the outcome, the efficiency of reaching a resolution, and the client’s satisfaction and perceptions of fairness.
There are a number of reasons this is the case, starting with the fact that the lawyer can advocate with the objectivity of being a step removed from the situation the client is experiencing with its attendant emotions. As a skilled advocate trained in the procedure, a lawyer is better positioned to most effectively present the case for the client. And where power dynamics are uneven, the lawyer as an advocate plays a key role in leveling the playing field for the client.
Good lawyers bring these advocacy skills to bear to get better results for their clients, settle cases on better terms and resolve cases more quickly, leading to more satisfied clients who have greater confidence in the fairness of the system.
The Navigator Role
The fourth key role we play as lawyers is as navigators. That is both helping clients navigate complex legal processes and procedure, and helping them navigate the larger situation surrounding the legal issue.
An example of that second part is a client who is a victim of domestic violence. In addition to helping the client through the legal process, the lawyer can connect the client to counseling or social services assistance that are just as critical for the client to get to a stable place.
Another example is a real estate closing. Along with guiding the client through the legal process of the closing, a good lawyer is helping the client through the larger process of buying a home. That may include connecting them to a home inspector, coaching them through a new homeowner checklist, or providing recommendations on contractors, lenders or insurers.
These are just two of many examples of the lawyer’s broader navigator role beyond the more obvious role of guiding clients through the legal process itself. Good lawyers help their clients understand and navigate both the legal process and the larger context of what is happening with their issue, counsel them along the way, and connect them to other resources, all of which plays a big role in the client’s perception of the process and whether they are getting a fair shake.
Connecting It Back to Access to Justice
So what does it mean for access to justice in this new age of technology? The extent to which each of these four core lawyer roles will factor into a particular case will depend on both the person involved and their particular legal issue.
Some more sophisticated clients might not require much, if any, help in the way of diagnostic or navigator services, but could still greatly benefit from the counsel and advocacy a good lawyer brings to the table. For simpler legal issues, there might be little need for any of these services beyond the diagnostic conclusion. And others may need all four of these core services to reach a fair and just outcome.
Technology also can make these core functions of the lawyer more efficient and effective. For example, artificial intelligence is offering new possibilities to make the lawyer’s diagnostic function more efficient and powerful. Similarly, practice management software gives lawyers the ability to more economically advocate for clients. And in many other instances, technology will enable these functions to be more targeted and efficient than in the past.
By focusing on these four core areas of service, and continually working to make them more efficient through technology and process improvement, we can home in on those areas where lawyers are most integral to access to justice even in the age of ever-improving technology. This will have the effect of making our overall services as lawyers more efficient, flexible, affordable, and accessible so that more people who need legal services can get them.
It all sounds simple enough, but doing this effectively will require a major commitment from our profession, the organized bar, the courts, and government at all levels. In my next post, I’ll delve more into what that looks like for each of these key stakeholders.
And finally in part 4, I’ll look at how we can help people to better assess when they can do things on their own, when they need a lawyer, and how much lawyer they need to achieve a cost-effective and just outcome for their case.