Law Talk in a Brief Advice Clinic

2021

• Political Science
• Law
• Political Science

Over three decades ago, Sarat and Felstiner published a ground-breaking ethnographic study of divorce client-lawyer conversations. They concluded that lawyers portrayed "a chaotic 'anti-system' in which [clients] cannot rely on the technical proficiency, or good faith, of judges and rival lawyers" but need to rely on their own lawyers' insider status to achieve reasonable outcomes.1 Although lawyers initially described the law and procedure to their clients, they rarely referenced that rational description when explaining what had occurred or would occur in their clients' cases. This law talk may have gradually and ultimately persuaded the clients to reach reasonable settlements, but it did so at the cost of client distrust of and cynicism about the legal system.Today most divorcing parties do not have attorneys providing full representation for them. Instead, clients represent themselves, often relying on brief advice from attorneys. This raises a question: How do attorneys today portray the legal system to clients attempting to navigate it themselves? Does their law talk fail to link law and procedure to what happens in the clients' cases, engendering cynicism? Are they similarly critical about judges, other attorneys, and the legal process? Do they suggest the clients need to have an "insider" attorney on whom to rely?This study answers these questions by analyzing thirty-six attorney-client conferences and thirty-nine attorney-student consultations from a brief-advice clinic. These pro bono attorneys present – to both their clients and the law student volunteers – a rational legal system with understandable procedures and fair jurists. They provide candid advice even when the client is unlikely to achieve a particular goal, neutral information about how to make any argument, and encouragement. They never intimate that pro se parties need an "insider" attorney who knows the idiosyncrasies and proclivities of incompetent judges and untrustworthy opposing attorneys.This Article concludes by theorizing why there is such a sharp contrast between the 1980s study and this contemporary study of "law talk" between attorneys and their clients.

Professional Identity Formation Through Pro Bono Revealed Through Conversation Analysis

SSRN Electronic Journal · 2019-01-01

Teacher’s Toolkit: Science Buddies

Science Scope · 2019-11-01

The Drive to Advise: A Study of Law Students at a Pro Bono Brief Advice Project

St. Mary's law journal · 2019

• Political Science
• Medical education
• Psychology

Law school aims to teach lawyering skills as well as legal analysis. While all students must acquire the skills of legal analysis, research and writing, law schools may decide what other skills to teach. Students also acquire skills and habits in informal ways, through clerkship experiences or pro bono volunteer work. However, there has been almost no study of what “skills” students pick up in these informal ways, and whether there are skills that would better be learned as part of the curriculum. This study looks at the skill of legal interviewing employed by students in a pro bono brief advice setting. It asks whether students pick up the interviewing skills that legal scholars recommend, or whether there are marked departures from those recommendations. It answers this question by analyzing transcripts from forty-six law student-client consultations and discovers one significant variation from the recommended protocol -- students begin counseling the client before completing the interview. The article categorizes the types of counseling students volunteer during the interview and reveals some problems that can be created through premature counseling. The article theorizes both why students are driven to counsel during the interview and how education in interviewing might improve the situation -- both for the clients and for the students.

Errors and Omissions: Challenges in Competently Operating A Student-Staffed Brief Advice Project

SSRN Electronic Journal · 2019-01-01

Rx for Teaching Communication Skills: Why and How Clinicians Should Record, Transcribe and Study Actual Client Consultations

2017-08-22 · 1 citations

The legal academy has much to learn by recording, transcribing and systematically studying student-client and attorney-client consultations. Social scientists and medical providers have studied doctor-patient conversations using conversation analysis and other social science techniques for years. Through this systematic study, researchers have reached conclusions about effective doctor-patient consultations that form the basis for teaching these skills in medical school. This article will highlight findings from these studies and the evidence-based medical school texts. This article will also review the few similar studies that have been made of attorney-client consultations, and suggest topics that merit study in the law clinic. Finally, it will lay out how a law clinic could obtain informed consent, protect client confidentiality and privilege, and gain the necessary approval of the Institutional Review Board to carry out such valuable studies

Puppets Bring Science Literacy to Life

2017-01-01

Get Real: Why and How Clinicians Should Record, Transcribe and Study Actual Client Consultations

2017-01-01

This article will argue that the legal academy has much to learn by recording, transcribing and systematically studying student-client and attorney-client consultations. Clinical faculty can utilize conversation analysis and other social science techniques to do this. Social scientists and medical providers have studied doctor-patient conversations in this way over many years. Through this systematic study researchers have reached conclusions about effective doctor-patient consultations that form the basis for teaching these skills in medical school. This article will highlight some of these studies and their findings. Some have contended that attorney-client conversations simply cannot be recorded and studied in the same way as doctor-patient consultations due to attorney-client privilege. This article will lay out how a law clinic could obtain client informed consent to this procedure, protect client confidentiality and privilege, and gain the necessary approval of the Institutional Review Board. Finally, this article will suggest topics about client consultations that could merit study in the law clinic.

Listen Up: Conversation Analysis Shows How Law Students Fail - And Succeed - In a Brief Advice Clinic

SSRN Electronic Journal · 2017-01-01

Community Based Research: Introducing Students to the Lawyer’s Public Citizen Role

2017-01-01

Law faculty teach, produce scholarship, and may engage in legal practice through clinical supervision or pro bono work. This article argues that by engaging students in community based research, law faculty will not only enhance the quality of justice available in their communities, but will also present law students with a good model of the “public citizen” role that all attorneys are called upon to assume. The article then shares my adventure in community based research with my law school’s pro bono program and community partners as an illustration of the pitfalls and promise of community based research.