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27/03/2007

Conversation -v- Contract

I knew I was tempting fate. I made a comment yesterday on Pupilblogger’s post on litigants-in-person. Today came the swift nemesis to my hubris. A day full of new enquries fom what turned out to be l-i-ps. Not that they tell you that at first. Oh no. First comes the account of the problem, overflowing with history, personal upset and so on. Through this one might discern the outlines of a possible claim and it is while you are in pursuit of relevant detail (and wading through the digressions) that the first inkling that all is not well appears, usually as they blithely announce that they have already issued a claim. Questioned further, it turns out that the claim has been struck out (for ‘procedural reasons’ of course)/found against them/lost at appeal, but they are sure that this is simply a trifling set back and won’t be a problem for us. Oh and the counter-claim is still going ahead, but they can’t see why because there is no basis to it/it’s all lies, so it will surely be struck out soon.

Pardon me. I needed to vent. 5 or 6 of those in a day is a punishment of a classical, Sisyphean form.

But underlying all this is an issue that Pupilblogger raised and which I think deserves serious consideration – the gulf between the clients’ and the lawyers’ understanding of the purpose, substance and process of a case. If I was to be pretentious (and I do seize every opportunity so to be) I’d say their differing Weltanschaungen. I should be clear I am only talking about individual civil litigation clients here, because that is what I know. I have no idea if corporate clients seem like this.

The suggestion that clients tend to approach or discuss their issues in relational and historical terms strikes me as true. The client narrative is not so much of events and dates as ‘and then the council officer said to me’ and ‘they never came when they said they would’ and ‘she was rude to me when I went to the office, but she has been ever since…’. Or alternatively, ‘they said I did this, but I didn’t, all I was doing was…(something substantially the same)’. This, quite rightly, is what matters to them. Lawyers do think in analytic and structural terms, fitting pattern onto facts and slotting response into categories. This is also quite right in terms of the law – this is how the client’s concerns will be dealt with by the Courts and how they are squeezed into statute and case law. This is our job.

Lawyers, by the nature of the beast, tend to look down on the client’s narrative version, seeing it as frequently irrelevant – which in their terms it is, but doesn’t help in getting the client’s confidence. At the same time, clients often see the lawyers as arrogantly ignoring their concern and upset, and refusing to take their case fully seriously – which while not unjustified, is not wholly accurate. When it comes to a court case, the lawyers take it very seriously, just not in ways that the clients can necessarily appreciate.

Perhaps what it boils down to is that for most people, the model of how the world works or should work is a conversation, with all the social and emotional weight of attention, respect, response and mutual recognition that this implies. Their complaint, for all that it might concern repairs, or failure in process, is based in a grievance about how they have been treated – without respect, without recognition as a fellow human, without response – a failure of conversation.

For most lawyers, at least when on duty, the model of how the world works or should work is a contract, with all the attention to terms, dates, specified duties and defined responsibilities that this implies. Any possible complaint must be framed in terms of a breach of the contract.

It is primarily the solicitor’s job to manage the translation between these modes, or at least explain to the client’s satisfaction what the translation involves. I suspect that, on the whole, we collectively make a bad job of it – leaving clients frustrated, or mystified and feeling like the case is no longer theirs, or wholly dependent on the solicitor’s judgement. Hence, perhaps, the quite frequent client demand for ‘their day in court’ in the face of a reasonable settlement offer, which drives solicitors up the wall. What the client wants is vindication for the hurt they have undergone in the failure of conversation – the way they have been treated. They are, of course, right to feel that way. The tricky part of the solicitor’s job is to explain that they aren’t ever going to get that in a court.

I have always tried to undertake translation and explanation as best I can, but I am aware that time pressure and the demands of a case do erode the necessary care. I’m now working up something of an adaptable set piece to take the client through at the beginning of the case, answering their questions, explaining what the claim will address and what it won’t, framing what will likely happen (and gently letting them down) at that point. Clients will be disappointed that their greivance will not receive justice, but they will be sooner or later anyway and it is worse if it flares up as an issue later on as a demand for the day in court that is doomed to disappointment.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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