I have been fortunate enough to be involved in some work about making legal information more accessible to non-legal professionals, particularly those who might have additional difficulties in understanding this information. Lawyers are traditionally quite wordy people, and there are a large number of lawyers out there who tend to speak in the way that makes them sound most clever, without necessarily thinking too much about how easy this is to understand. Yet so many of our clients come to us precisely because they are having trouble understanding a process. Because of the area I work in, I think I am more acutely aware of this than I might be if I didn’t spend 35+ hours a week thinking about how to communicate with my clients.
So I thought it would be interesting to start a bit of a conversation about this in my office. I was, at that time, the only Court of Protection lawyer in the office, but the other lawyers practice in wills, family, property and litigation. These are all areas where clients with additional communication needs might need advice.
It came as something of a surprise to me that not one of them had ever thought about how they communicate with their clients. In fact, one trainee (ah poor trainees, so young, so naive….) suggested that it wasn’t something they’d need to worry about because if the client had these needs, they’d not be able to instruct a solicitor anyway. The idea that someone with any sort of information processing disorder might be buying a house, getting divorced or writing a will seemed to be quite alien to them.
Now in my colleagues’ defence, whilst my team hold a legal aid contract, none of the other departments in my firm do legal aid work. And it is perhaps more likely that someone with additional communication needs will be seeking advice under legal aid than funding legal representation themselves. So it’s possible that they genuinely had never come across a client that had difficulty understanding their advice in letters or whatever other format the advice was communicated.
I’m sceptical of that though. Whilst most of my clients are in need of my support because of doubts about their capacity, I also have a good number of clients who don’t have any diagnosed condition that impairs their understanding. And a lot of those clients also have difficulty understanding the letters I send them. Even more of them have difficulty understanding court orders and agreements that I send them.
The way I communicate with each of my clients is different. I have some, for example, that like me to break information down into bullet points in emails, that they can refer back to. Others need me to go over everything with them on the telephone. A couple need me to highlight the most essential bits of information, such as what the next steps will be, and have no interest in the minutiae of the phrasing in court orders. I have become aware that my voice even changes when I am talking, and that my colleagues can sometimes guess who I am speaking to based on my tone of voice.
Is this because I am quite an anxious person who spends a lot of time analysing my own actions? Most likely.
But that doesn’t mean that lawyers who don’t share my particular personality flaws shouldn’t be thinking about this issue at least some of the time. Because, as lawyers, we act on instructions from our clients. Yet if they don’t understand what is being said, they’re not going to be able to give clear instructions. I do worry that sometimes we might blur the lines between advice and decision making, with clients trusting us to do the right thing without actually making decisions for themselves. It is certainly tempting to take a ‘yes’ response and go with that, without necessarily checking whether this is really what they want to happen.
There a few problems with that approach, though. Firstly, it does run the risk that the client will then say or do something that is contrary to the advice given, most likely at an inopportune moments, like in the middle of a court hearing, or right after the lawyer has just assured everyone of the client’s cooperation. I have had both happen to me. Now clearer advice doesn’t prevent this happening altogether but it reduces this risk.
Secondly, and in my view more importantly, it risks undermining people’s confidence in legal professionals, and in the wider legal system. For example, if I went to buy a new computer (something I don’t know a lot about) I’m likely to want the person in the shop to give me information about the products available. If that interaction was rushed, or they didn’t really listen to me, I might buy a computer, get it home and realise it isn’t actually what I wanted at all. In which case, I’ll probably take it back to the shop. And I’d definitely be more wary of the advice given to me by that shop in the future. Except court orders can’t be returned, and many of the decisions we are supporting people to make are not easily undone.
And more than that, I know that the shop exists to make money and selling me things is their primary function. It doesn’t hold itself out as being any kind of public service, with any protective function. We all know there are consumer protection rules, and expected standards for retail establishments. But we, quite rightly, expect more from our legal professionals. We are held to a higher standard.
But explaining what we do is often difficult and time consuming. So it is easier to take a more paternalistic ‘just do as I say’ approach, especially when other clients are also demanding our time. The next time that client is in difficulty though, they are less likely to seek help. Or they seek help but in a very stand-offish way that will just make everyone’s lives harder.
In the moment though, it is so tempting, and I certainly don’t pretend that I get this right all of the time. Based on the conversation I had with my colleagues though, I’m trying to be a bit less hard on myself because at least I am trying.
So I just think it is something that more of us within the profession need to be aware of. Based not on what area of law we work in, and whether a client does or does not disclose a particular diagnosis, but on listening to clients and giving good customer service.
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation.