Layman's terms: Communicating law to non-lawyers
As I sat down to write this article, I took a moment to reflect on who, over the years, I have been required to communicate the law to. Having an exclusively public sector background, I have often been required to explain the law to members of the public, as well as clients, magistrates and sometimes the media.
Fresh out of law school, I was fortunate to land my first legal job as a magistrate’s clerk. I worked as a court clerk for nine years, and learned pretty quickly that communicating the law to non-lawyers was perhaps more challenging than understanding the mechanics of criminal law. Advising the magistrates could be particularly tricky: after all, they were in charge, and any decision was for them alone to make. What do you do when the findings of fact on a day-long trial simply do not accord with the evidence that you heard?
It was a strange conundrum that I would occasionally face, and my duty as a court clerk to advise the magistrates on issues of law included advising on the elements of an offence and ensuring that a structured decision-making process was adopted. It was in situations such as these that I started to hone my skills in diplomatic legal advice. Nobody wants to feel stupid or to be told they are wrong or cannot do something.
Through trial and error (literally), I soon discovered that the key was to ensure that those responsible for making the decisions needed to feel they had retained ownership of their decisions, whilst being gently guided on the law. By a gentle reminder on the elements of an offence, together with reference to the notes of evidence, a framework for a structured decision-making process guided the magistrates ‘back to basics’, and allowed them to remain empowered and to come to a sound conclusion themselves.
Litigants in person (LiPs) can be a challenge which we all now often face due to cuts in legal aid. I experienced this both as a court clerk and now as a solicitor-advocate regularly appearing in both the Crown and county courts. LiPs are going to be highly anxious. They will feel vulnerable, angry and quite often will present as aggressive. I regularly attend court on contested adoption hearings for the local authority (LA). Parents will often attend court unrepresented, shell-shocked after having been through a final care hearing and having to come to terms with the fact that a court has decided that their child / children should be removed from their care. In addition, the parents will quite often have their own difficulties, be it drug / alcohol- or mental health-related. Trying to explain what the application of the law is, let alone the law on change of circumstances, is always going to be difficult.
These are situations where a little empathy will go a long way. In my experience, the majority of parents love their children, but sadly cannot give good enough care. They do not want to be seen to be simply relinquishing their child to a prospective adopter. Often, they realise that they stand little chance of challenging the order, but as the birth parent, they simply cannot sit by and do nothing. Understanding and empathising may sound an odd thing to do, but in my experience, once they feel they are being listened to, they will be prepared to listen to you .
Clearly, in this situation you are not giving them legal advice, but you are communicating what the law is, what they need to do and how they need to do it. This means that once in court, they will feel calmer and the whole process will run much more smoothly.
At Essex Legal Services, my clients are often balancing challenging resourcing issues with the need to provide frontline services. At the same time, the role of the LA lawyer has fundamentally changed. The traditional image of the grey suit who spouts the law at the client is a thing of the past. What our clients look for now is a business partner who enables them to deliver services to the community and understands their constraints, aims and objectives. Hence, understanding your client’s business is crucial to building a rapport, which in turn is important because, inevitably, you will have to have difficult conversations with them at times. These conversations will be so much easier if your client knows and trusts you.
It may be worth considering the method of communication used when explaining law to non-lawyers in a more generic context. Good communication skills require a high level of self-awareness. Understanding your personal style of communicating will go a long way towards helping you to create a good and lasting impression. By becoming aware of how others perceive you, you can adapt more readily to their styles of communicating. This does not mean that you change with every personality that you meet, but you can make another person more comfortable by selecting and emphasising certain behaviours and methods of communication that fit with your personality and resonate with your client.
We all have certain preferences as to how we like to receive information. As a court advocate, unsurprisingly I prefer verbal communication. I would always recommend trying to ascertain what method of communication your client prefers. I remember feeling quite frustrated with a previous client (who I always got on well with, for the record), as he seemed to have an unhealthy obsession with insisting that all my advice be represented in a checklist or flowchart. It was only when I realised that his preferred style was visual communication that the penny dropped. Afterwards, I made a conscious effort to use visual communication more frequently and, as a result, I had a very happy client. Again, this reiterates how important it is to build those relationships with your client.
There will always be difficult conversations to be had, but hopefully, by putting in the groundwork and gaining the respect of your client, they will be made easier. Remember to always stay calm. However frustrated you may feel, never let it show.