By Bob Glaves | CBF Executive Director
This is part 1 of a 4-part series:
A lawyer who represents himself has a fool for a client. Most of us have heard that old adage, and while we’ve thankfully come a long way from those days when the assumption was the lawyer would be a him, we’ve also reached a point where advances in technology and the growing gap in access to free and affordable legal services require us to revisit the underlying premise.
When do we really need a lawyer to get a just result? Or put another way, when are we fools to try to go it alone (assuming we even have a choice)? Not to be overdramatic, but there is not a more critical question today for access to justice and the future of our profession.
The truth is that the fool for a client saying still offers great food for thought for thinking about these issues in this brave new world of technology-enabled solutions. Of course, technology does enable us to do far more on our own today than ever before, and we should assume that will only be more true in the coming years. And for many less complex and lower-stakes issues, we need to get a lot more comfortable with that being a central part of the solution.
The question we need to ask critically and answer credibly for the public is whether people should try to handle more consequential legal matters on their own, and if so, when, and under what circumstances.
Why the lawyer may still be a fool
Knowing the law and the legal process is only one part of the solution for achieving a just result to a legal problem, albeit a very important one in today’s system. And as much as technology is changing the world around us every day, one thing that has not changed since this cliche was first uttered is that lawyers facing legal issues know the law and the legal system (or so we would hope!). So unlike most laypeople who encounter legal issues, lawyers should be comfortable in the system and able to easily navigate the applicable law and procedure.
The problem that technology does not really change for a lawyer any more than it does for anyone else is that the lawyer can easily lose his or her objectivity when personally involved in the situation. As a result, the lawyer generally can no longer be an effective advocate for their own interests.
I explored that issue a bit back in my post at the start of 2016, looking at the issue through the lenses of behavioral economics and our basic human nature:
As human beings, there are all kinds of ways we (often very predictably) do not make objectively rational decisions, on both routine and very important matters. In addition to the(se) behavioral economics foibles we all share even on our best days, people facing legal issues often bring a whole range of associated emotions to the table that can cloud their ability to make the right decisions on their own anxiety, fear, anger, anguish, hurt, and all the others.
All of that is equally true for laypeople facing legal issues, who face the additional barrier of not having legal experience or training when they try to handle legal issues on their own.
What to do with this knowledge
The bottom line is our roles as counselors and advocates will continue to be critical for access to justice even as technology advances further than we could ever imagine today. And that will remain even more true when uneven power dynamics enter into the picture. With that knowledge, we can and must do better in assessing when and how legal assistance from a good lawyer is necessary to help people achieve just outcomes, and when we can better integrate other solutions into the mix.
In many cases, that may be legal help delivered at just the right time in the trajectory of a legal issue rather than full legal representation from start to finish. In other cases, it may be that the stakes are not high enough to justify involving a lawyer even if it might be helpful. And there will continue to be many cases where there is simply no substitute to having full representation throughout the case.
In all instances, it is incumbent on all of us to prioritize making the justice system more user-friendly, fair, and accessible. People should be able to handle legal issues on their own, in whole or in part, where that is appropriate without the fear and intimidation that most experience today when entering the court system unrepresented.
Over my next several posts, I’ll expound on these themes and what they mean for our profession and for access to justice. In part 2, I’ll delve more into the specific functions where lawyers will continue to be critical for achieving justice and some recent books and studies that underscore those points.
In part 3, I’ll talk about what we should be doing with that knowledge as a profession and as a justice system to make necessary legal assistance more affordable and accessible to the large numbers of people who effectively are shut out of getting it today.
And finally in part 4, I’ll look at how we can help people better assess when they can do things on their own, when they need a lawyer, and how much lawyer they need.
While it may seem remote from what many, if not most of us, are experiencing in our practices and daily lives today, there’s a lot more we can do to be smarter about how we deliver services and dispense justice. There will always be some fools who want to do things on their own when they should not (including lawyers), but that should be a conscious choice and not a fate we involuntarily consign large swaths of the public to suffer as we do today.