Practice Development
Meeting Client Needs for Clear Information
Is Literacy: a law practice issue?
What does it mean to be literate in today's world?
According to the current international definition:
Literacy means using printed and written information to function in society, to achieve one's goals, and to develop one's knowledge and potential.
The CBA Task Force on Legal Literacy learned that most people find legal documents difficult both for the language and the unfamiliar concepts.
How do we describe the lack of literacy?
Literacy is no longer looked upon as a single skill you either have or do not have. Literacy requires a set of skills measured over five levels. It is about being able to use information you read, not just being able to read the words.
The third of the five levels is considered the minimum literacy skill needed in today's information society but it is considered inadequate for coping with technological advances in the workplace or with new and unfamiliar information.
Literacy is measured in three categories
- Prose literacy: using information from texts, newspapers, poems and fiction or in the narrative form
- Document literacy: locating and using information in various document formats like applications, payroll forms, schedules, maps
- Quantitative literacy: using arithmetic operations and numbers for tasks like balancing cheque books, figuring out a tip
The literacy statistics
One in five of your adult clients cannot read. One in four can read simple material that is well laid-out. And one in three have adequate reading skills for most tasks in day-to-day life, but cannot cope with unfamiliar or complex information.
This means that many of your clients find legal writing difficult and, because it is important to them, frustrating. Only one in four can deal with your complex opinion letter or legal documents - and even they need the legalese explained.
General literacy factors
- Literacy skill deficits are found not just among marginalized groups but affect large portions of the adult population.
- Literacy is not synonymous with educational attainment.
- Literacy skills can be lost through infrequent use.
- Adults with low literacy do not usually acknowledge that they have a problem and may practice denial.
Literacy is relative
Some of your clients who usually perform at a higher literacy level will demonstrate situational limited literacy. Some factors that temporarily affect literacy include
- stress or psychology
- stage in life
- lack of practice or neglect
These added factors will affect client literacy in legal situations:
- pressure or stress over legal matter
- intimidation by situation
- legalese
You have clients with low literacy skills
There is a discrepancy between what lawyers believe and what is true:
- 65% of B.C. lawyers said they had never encountered literacy problems among their clients (when questioned by Lawyers for Literacy in 1997)
- 73% of Canadian lawyers have encountered client literacy problems (CBA Task Force on Legal Literacy, 1994)
You can learn to recognize the signs of limited literacy from the Lawyers for Literacy whose web site is located at http://www.cle.bc.ca/literacy.
Literacy skills affect the delivery of legal services
Many people don't enforce their rights because low literacy blocks their access to legal information and to the legal system. And legalese is an intimidating barrier to others with better reading skills. Even adults who are literate may feel overwhelmed by the domain of law.
What are the legal consequences of limited literacy? Refer to the following cases:
- Klingspon v Ramsey (1985) 65 B.C.L.R. 132 (S.C.)
- R v Roberts [1991] N.J. No. 349, 301 A.P.R. 49, 95 Nfld. & P.E.I.R. 49,
- R v Evans [1991] 1 S.C.R. 869, 63 C.C.C. (3rd) 289
In Klingspon, a woman sued her solicitor for bad investment advice. The client had signed a document stating that she had received no advice from her solicitor except "as to the good standing of the company". The solicitor meant that phrase to refer to the status of the company's filings with the B.C. Registrar of Companies, but the client understood it to include a positive description of the company's financial condition. The court held the solicitor liable for 25% of the client's investment losses.
In Roberts, an accused's statements to a tax auditor were held inadmissible. The court commented:
…the accused was unsophisticated and illiterate… In the circumstances the court was satisfied that the accused had not absorbed what was said to him by the tax authorities… The investigative techniques employed here were seriously flawed and in particular the mere recitation of the accused's rights in the circumstances were purely pro forma… A tax auditor present at the time knew that the accused was unsophisticated and unlearned requiring that special care be taken during the interview process.
In Evans, the Court emphasized that people are not actually informed of their rights if they have not understood the information given:
A person who does not understand his or her right cannot be expected to assert it. The purpose of s. 10(b) is to require the police to communicate the right to counsel to the detainee… where there is a positive indication that the accused does not understand his right to counsel, the police cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate that understanding.
How literacy problems affect the conduct of your file
Your client may not understand the issues and their legal context, the legal processes, and your language.
What can happen when people can't read materials concerning their legal problems?
They may
- fail to attend appointments with their family court counselors or probation officers, or fail to appear for their examinations for discovery because they could not read the letter advising them of the appointment.
- neglect to give you crucial information because they cannot understand what you want on your intake form or client questionnaire.
- be embarrassed to inform you of their reading problems and sign legal documents they do not understand.
What problems can arise in the solicitor-client relationship?
-
Your client's ability to give you proper instructions may be impeded.
- Your ability to obtain the appropriate remedy may be hindered by erroneous information and missing facts.
- You may face misunderstandings between you and your client.
Delay, mistake, and embarrassment are typical consequences when client literacy is not addressed. Other consequences include insurance claims against you and complaints to the Law Society about you.
Sources of complaints to Law Society
The top categories of complaints to the Law Society are
- general
- delay
- excessive fees
- failure to respond or communicate
- rudeness of lawyer.
Failure to communicate is on the extreme end of the continuum of communication. Poor communication undoubtedly contributes to the other sources of complaints as well.
Reports of claims to the insurer
The top causes of claims being reported to the Law Society's Insurance Department are
-
poor client communication.
- insufficient review of the file
The most frequent issue relates to the nature or scope of the retainer - going to whether the lawyer-client relationship exists. Over one-third of the reports arose from a dispute over instructions. The second most frequent issue was failure to carry out instructions.
The top five areas of law that produce claims reports attributed to poor communication are
- real estate - residential
- civil litigation - plaintiff
- family
- motor vehicle - plaintiff
- commercial
The general effect of miscommunication
The pattern of claims and complaints is a key motivation for enhancing communication to improve client relations. The experience of resolving claims and complaints shows that
when a client's expectations are high or are raised by advertising, and the lawyer fails to deliver on effective communication, there are two results:
- The problem is less amenable to solution than other sources of claims and complaints.
- There is a backlash against lawyers generally - the opinion is formed that lawyers are heartless and careless of clients' concerns and needs.
Client expectations
In 1992, the Law Society of Upper Canada found that "When selecting a lawyer to represent them, the public attaches the greatest importance to lawyers' interpersonal skills, especially the ability to communicate with clients". And, depending on the skill questioned, one-third to one-half of people rate lawyers poorly on their ability to communicate. In particular, a high proportion of people thinks that lawyers' inability to effectively communicate is the source of complaints about high fees.
A 1993 US study tested public attitudes for the American Bar Association. Questioned about lawyers' communications, nearly 50% of people whose lawyers frequently or occasionally used legalese would not return or make referrals to those lawyers. The public expressed concern over lawyers interpersonal skills: 11% said their lawyer had been rude to them and 22% felt their lawyers had shown no concern for them as persons.
In addition to those clients who take formal steps to complain, some of your clients will never recommend you or come back to you if you do not communicate effectively - concerning both the content and the emotional quotient of the relationship. And, unless you monitor these relationships, you may never know about it.
What can you do?
Lawyers must strive to successfully communicate legal information to their clients who do not have the same information-processing skills or patterns. There are several easy ways to immediately improve your client relations with limited literacy clients. Consider
- improving your listening skills
- using plain language
- varying your communication tools (not using only written documents)
Lawyers for Literacy
Lawyers for Literacy toolkit and information
Excerpted from the Law Firm Literacy Audit, Communicating Clearly Kit, Lawyers for Literacy
http://www.plainlanguagenetwork.org/LawyersForLiteracy/
This literacy audit is designed to help you and your firm open discussions on whether you provide your clients with clear and effective communications.
Written Material Always Never Sometimes
- Our firm materials and precedents are easy for our clients to read and use
- We follow plain language guidelines in written communications
- We produce precedents in plain language
- We define technical and legal terms in the text of the material
- We use everyday words in their everyday meanings
- We use only forms that are necessary, when necessary
- We include ample white space in print material
- We review our written material to ensure it follows modern communications standards
- We go over all written material with our clients verbally, using plain language and checking for understanding
Client Relations Always Never Sometimes
from The Decline and Fall of Gobbledegook, 1991
The Canadian Bar Association/Canadian Bankers' Association
