Extract from University of Windsor, Faculty of Law: Personal Plight Legal Practice and Tomorrow’s Lawyers, Noel Semple (2015) (https://scholar.uwindsor.ca, accessed 23 – 03 – 2022)
Personal plight legal practice offers relatively strong career prospects for those embarking upon legal careers. Personal plight practitioners help individuals and small businesses involved in disputes with state organs, corporations, and other individuals. Plaintiff-sided personal injury law, criminal defense law, and family law are amongst the largest personal plight practices, but the field includes many other niches such as estate law, class actions, and immigration law. Legally inexperienced clients and the small size of the average personal plight file help this work resist commodification and decomposition, and suggest an enduring need for a local human touch. Career opportunities in these fields offer good prospects to both “do well” and “do good”. Legal educators and regulators have an important role to play in fostering successful personal plight practice, in order to enhance both career prospects for tomorrow’s legal practitioners and access to justice for tomorrow’s clients.
Personal plight legal practice is sheltered, to some extent, from the new sources of competition. Computerization is a disruptive innovation, fundamentally unlike the sustaining innovations of the past. Instead of making it easier or more profitable for practitioners to practice, it changes the entire structure of the market and creates space for new competitors at the expense of the incumbents. Intelligent machines replace legal workers and facilitate commodification, in which legal services are provided with decreasing quantities of lawyer labour. The print journalism industry has been profoundly disrupted by information technology and John McGinnis and Russell Pierce argue that a similar development is imminent for law (John O. McGinnis & Russell G. Pearce, The great disruption: How Machine Intelligence will transform the role of Lawyers in the Delivery of Legal Services, 82 Fordharm Law Review, 3041, 3057 (2014)). In document-heavy litigation, for example, e-discovery software already allows disclosure requirements to be fulfilled, rather than large volumes of paper. This is an example of “one-to-many models of legal problem solving” that is increasingly replacing traditional “one-to-one” artisan lawyering.
For individuals who need simple agreements or forms, computerization is allowing companies like Legal Wise to compete very effectively with practitioners. Computerization threat is a more threat to junior lawyers than to senior lawyers, to the extent that young lawyers’ work is more routine, it is more readily replaced by these processes. The disproportionate competitive threat to newer lawyers may underlie the reportedly increasing perception among corporate clients that junior lawyers’ work is no longer worth the price that firms have traditionally charged for it. Understanding the differential impact of the trends on different parts of the legal services marketplace is key.
The phrase “personal plight” was introduced as a way to characterize a certain type of legal practice. The personal client hemisphere is divided into “personal business” and “personal plight” groups. The “personal business” group includes legal services related to financial transactions, such as drafting a will, arranging the registration of transfer of immovable property, or buying or selling a small business. In the personal plight group, there are criminal defense, plaintiff-side personal injury, and divorce practices. These practices have two things in common –
(a) the presence of a dispute or adverse interests in each file, and
(b) the fact that clients are individuals.
Personal plight practitioners help people assert legal rights against other individuals, corporations, and state institutions. Contested immigration and personal tax matters, consumer protection law, employee-side employment law and human rights are other examples of personal plight legal practice. Work for small corporate clients embroiled in legal disputes also seems to belong to the personal plight group. If the corporation is small enough (e.g. controlled by a single individual or family) that the outcome of a legal dispute will have significant personal ramifications for the corporation’s principals, and if those principals are legally inexperienced, then the distinct dynamics of personal plight practice are likely to be present.
For the typical criminal defendant or personal injury plaintiff – unlike the large institutional client on the other side – a case is not just ‘another case’, whose ideal resolution is a function of a risk-reward calculation.
Most personal legal plight practices involve a relatively low proportion of document review, drafting, and legal research, and a correspondingly high proportion of client counselling, advocacy and negotiation. These tasks tend to require a local human touch. Alternative dispute resolution options (e.g. mediation and arbitration) are scarcely more flexible in this regard. In personal plight practice, the most important and most frequently used form of advocacy is persuading the other side (not persuading a neutral third party) of the merits of one’s case, in order to secure a favourable settlement.
A client, who is divorcing, or contesting custody or maintenance, is often best served by a settlement that creatively identifies options that work well for everyone involved, within the framework of the law. Cost-effectively securing such an outcome may require a practitioner with a personal reputation within a local community of practice, and working knowledge of what outcomes are considered reasonable by other lawyers and judges within the local legal culture. The practitioner may also need “insider” familiarity within the idiosyncrasies of local law and procedure.
Personal plight clients are usually legally inexperienced “one-shooters”, who have only occasional recourse to the law. Unlike in-house counsel or executives within the large corporate clients, personal plight clients often have little sense of what their legal rights are. Lawyers with inexperienced clients must translate between the law and the lived reality of the client. When clients tell stories about their lives and their needs, lawyers must emphatically understand those stories and tell intelligible stories of their own about the law. Personal plight practitioners must not only provide information but create a bond of trust with their clients, in order to cement an effective alliance. They must shape their clients’ expectations, strengthening resolve in some cases, and throwing cold water in others in order to set the stage for a resolution acceptable to both sides.
In order to advance a client’s interests, a practitioner must first comprehend those interests. In personal plight practices, this often involves proactively helping the client to understand what he or she really wants. Empathy, emotional intelligence, and communication skills are very important for most personal plight practitioners. These skills are equally important to other areas of legal practice as well, but more sophisticated and experienced clients are less likely to require the same level of interpersonal “soft” skills from their lawyers.
Personal plight matters are by definition contested. The lawyer’s strategy in each case must take into account not only the “shadow” of the law but also the position and tactics of the adversary. Most decisions about how to proceed with a given file have cost consequences, but the price of the procedure to the client must remain proportional to the value of the outcome. While different personal plight niches demand different lawyer skills, they share a high reliance on the local human touch. For this reason, lawyers in these practice areas are relatively well-positioned to survive threats posed by changes in the legal service landscape.
Personal plight practice is distinguished not only from corporate-sphere work but also from business work involving uncontested transactions and planning for individual and small business clients. Personal business work, like personal plight work, typically has legally inexperienced clients. However, it lacks adversaries and the necessity for compromise which characterizes personal plight work. Legal Wise and Clientele have led the way in commodifying personal business work, posing a grave and immediate threat to lawyers’ revenue for tasks such as incorporation and will-drafting. However, to the extent that these businesses seek to offer personal plight legal services, they can do so only by referring clients to lawyers, perhaps with a discounted rate secured by buying in volume.
Personal plight legal practice is not future-proof. The “more-for-less challenge” – people’s inability to go without legal services combined with the inability to pay for those services as traditionally delivered – is very pressing for personal plight clients. They are certainly part of the “tremendous pent-up demand for better, faster, and cheaper legal products and services. To the extent that computerization does occur, personal plight lawyers are relatively well-positioned to be the beneficiaries, rather than victims, of the current trends. Tomorrow’s lawyers have an opportunity to tap to a large and potentially lucrative middle-class market if they can surmount the affordability and other problems that make lawyers’ services inaccessible to middle – and low income – people today.
Personal plight careers are considered unappealing by law students and new lawyers. These careers are perceived as less remunerative, less personally satisfying, and less prestigious than careers in the corporate hemisphere. There is a huge untapped market of middle-class people with personal plight legal needs. Personal plight legal work is concentrated in small firms and solo practices and probably makes up a very sizeable portion of the work done in these work environments. The distinctive challenges of these jobs include the emotional crises in which many of the clients find themselves, and the need to fight the David v Goliath battles against better-resourced state and corporate adversaries.
The relatively steady and recession-proof nature of demand for personal plight legal services may be a significant source of contentment in personal plight work. Corporate practice areas such as mergers and acquisitions or bankruptcy law are cyclical and maybe a source of stress for practitioners. A lawyer with relative stable client demand for his or her time is likely to enjoy better work-life balance than a lawyer who alternates between periods of long overtime and slack periods in which there is little to do at the office. Because many personal plight clients are people of modest means, their lawyers have an opportunity for personal fulfilment which is not available to those in the corporate hemisphere: the opportunity to dedicate their careers to helping people who might not otherwise have any access to legal services.
Personal plight practitioners are more likely to have an opportunity to choose a balance to do well and doing good. They also have the opportunity to develop innovative practice models in order to do well and do good simultaneously.
Personal plight practice may be more likely to offer autonomy than corporate practice in a law firm because the clients’ lack of legal experience necessitates some exercise of professional judgment by the lawyer. The relative paucity of repeat business for personal plight practitioners creates another variety of professional autonomy. If a family’s lawyer working relationship with a client breaks down irreparably due to personality conflicts, then the lawyer can move on to the next client. A corporate lawyer’s relationship with one big important client breaks down for similar reasons, and then his or her entire career may be on the rocks.
The perception that personal plight careers lack prestige is perhaps the most complex stumbling block for tomorrow’s lawyers. The prestige deficit is the reason why many would see a personal plight career opportunity as the second rate even if it were to come with guaranteed high pay and great job satisfaction. High prestige is generally accorded to work for large corporate clients and, to a lesser extent, pro bono or public interest work for non-profit organisations. A “classical theory of professionalism” emphasizes being able to control your own work – being able to tell your client what his problem is and how, with your help, it may be solved. A legally inexperienced personal plight client offers more scope for this type of professionalism than does working for a legally sophisticated corporate client.
Personal plight practice environments performed in small firms and solo practices offer a direct personal connection to the professional, unmediated by bureaucracy. To practitioners, they offer unparalleled independence. There is a need for a competency-based curriculum designed to produce in-demand graduates, as well as practice readiness and skills, student entrepreneurship and innovation, and specialization. Personal plight legal practice requires strong interpersonal and client-relationship skills, as much as technical or “hard” legal skills. Understanding and taking advantage of the opportunities in personal plight legal practice will improve the prospects for tomorrow’s lawyers and increase access to justice.
(This article is provided for informational purposes only and not for the purpose of providing legal advice.)