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“It’s very difficult to understand. You need a dictionary to understand a lawyer. It should be everyday language.” – Report on Consultation with Lesbians, 33
692 THE DISCUSSION in this chapter explores women’s needs for legal services
to be delivered in diverse ways. It pays particular regard to women’s concerns about:
• the limited accessibility of written legal information;
• the languages of lawyers and legal resources;
• caregiver-friendly services;
• physical access to legal services;
• lawyers’ interpersonal communication skills; and
• the separation of lawyers’ services from other relevant services.
693 The examination of these concerns leads to the conclusion that a strategy is needed to ensure a more user-focused approach to the delivery of private lawyers’ services. Key components of the recommendations that are made, relating to each of the above areas, involve:
• reviewing current practices;
• improving those practices where appropriate;
• developing new measures in consultation with women from diverse groups;
• co-ordinating the promotion of new measures;
• improving lawyers’ skills training; and
• integrating private lawyers’ and relevant community services through, for example, community or lay advocates.
694 Legal information has traditionally been conveyed to the public by means of written pamphlets. However, it was constantly stressed at the meetings throughout New Zealand, and in the submissions on the consultation paper Women’s Access to Legal Information (NZLC MP4), that reliance on pamphlets and other written materials as the primary medium for providing legal information to women is not appropriate for several reasons.
695 First, there was a clear preference among women generally for oral rather than written communication. This was particularly strong among Mäori women, Pacific Islands women, women from other ethnic groups, and women with disabilities. A 1993 survey by the Ministry of Consumer Affairs on the receipt of information by women in its target groups has also found that:
an oral culture, lower literacy levels for some, together with a loss of reading skills through lack of practice and/or energy resulted in people not being able to make use of the written information developed by the Ministry. (Ministry of Consumer Affairs, 1993, 19)
696 Second, it was frequently said that the legal information contained in pamphlets is too general to be readily applied to particular problems in readers’ lives and does not direct them, with sufficient specificity, to people who can provide further help. This was of particular concern to women whose problems required urgent attention.
697 Third, women told us that written information is simply not accessible to many because of its complexity. The preliminary findings of the 1997 Ministry of Education Adult Literacy Survey are relevant here. The survey examined 4223 randomly selected adult New Zealanders (16–65 years of age) for their ability “to use printed and written information to function in society, to achieve one’s goals and to develop one’s knowledge and potential”. Three “domains” of literacy were examined:
• prose (text);
• document (formatted information such as that presented in timetables, graphs and forms); and
• quantitative literacy (arithmetical numeracy).
Performance in each literacy domain was assessed in terms of five skill levels, with level 3 being the minimum required for individuals to meet the “complex demands of everyday life and work in the emerging ‘knowledge society’”.
Preliminary findings of Adult Literacy Survey
698 The survey found that:
• only one in five New Zealanders is operating at a highly effective level of literacy; and
• over 1 million adult New Zealanders are below the minimum level of competence in each of the three literacy domains required to meet the demands of everyday life.
Approximately 20 percent of all New Zealand adults are assessed to be at the lowest level, level 1, which means they have “very poor skills, and could be expected to experience considerable difficulties in using many of the printed materials that may be encountered in daily life”. A further 30 percent are at level 2, which means they “would be able to use some printed material but this would generally be relatively simple”.
699 The survey also found that certain factors affect different groups of New Zealanders’ prose (text) literacy skills, including ethnicity, age, education and employment status. The effects of these factors is outlined below.
Ethnicity
700 In the prose literacy domain, high proportions of each ethnic group were assessed to have literacy skills below the level 3 minimum level of competence. There are variations among the groups, however, with some 40 percent of Pakeha adults, over 70 percent of Pacific Islands adults, over 60 percent of Mäori adults and some 65 percent of adults from other ethnic groups being assessed at below the minimum level of competence. Levels of prose literacy are quite evenly balanced between women and men from the same ethnic background.
Age
701 In all three literacy domains, skills were found to peak among those in the 20–24 years and 35–39 years age groups, and to decline among those over the age of 50 years. The study notes that the relatively poor performance of those in the 55–64 years age group may be related to the fact that a much lower proportion of this group than any other received secondary education. It may also be related to the effects of the aging process itself which adversely affects the cognitive functioning of some people.
Education
702 The very strong relationship between educational attainment and literacy is evidenced by the fact that 75 percent of those who had not gone beyond primary school were at the lowest level of prose literacy, compared with only 7 percent of those who had tertiary qualifications. Overall, those who were at the higher levels of prose literacy (levels 3, 4 and 5) included:
• 79 percent of the tertiary-qualified respondents;
• 65 percent of those who had completed form 6 but were not tertiary qualified;
• 38 percent of those who had some secondary education but had not completed form 6; and
• 8 percent of those who had not gone beyond primary school.
Very similar distributions were evident in both of the other domains of literacy.
Employment
703 There were found to be stark contrasts in the literacy skills of those who were unemployed and those who were in paid work. Almost half of the unemployed were at the very lowest level of literacy in each literacy domain, and 75 percent were in the two lowest levels. Retired people also performed poorly in each domain. “Homemakers” performed slightly better than retired people. Students and employed people had the highest levels of literacy, with between 55 percent and 62 percent respectively in the higher levels across all three domains. (From Adult Literacy in New Zealand, Results from the International Adult Literacy Survey, Ministry of Education, Wellington, 1997)
Women with disabilities
704 The information gathered in this study shows that written material may also be inaccessible because of its format. Specific groups of women with disabilities said they found reliance on written legal information to be either problematic or too restrictive. For example, women with visual disabilities were either completely unable to read or required the information to be in a large-sized font or in some other format. Women with hearing disabilities also suggested that certain types of telephone services would better meet their needs for legal information. For example, these women favoured access to an 0800 telephone advice service that had a tele-text typewriting (TTY) facility. TTY facilities enable deaf people to have a two-way conversation with another person via words typed into a liquid crystal display.
Conclusion and recommendations
705 Plainly, it cannot be assumed by legal information funders, producers and distributors that merely providing people with written material will enable them to understand their legal situation. Written materials are a valuable resource for some sectors of the population, including community workers, but they cannot be relied upon to meet the needs of all. All written legal information, including letters from lawyers to clients, is subject to the risk of being excessively difficult for some clients to understand. The usefulness of computer-generated information for New Zealanders who need to clarify the legal implications of their problems must also be subject to that risk.
706 As the presentation of women’s concerns in chapter 3 reveals, there are factors other than those canvassed so far in this chapter which affect people’s ability to seek and absorb written information. For example, the qualities of the information provider are important to many information-seekers with the result that mistrust of the provider can deter approaches to it. Also, if those who need information are distressed at the time they are provided with it, or are afraid to ask questions about the information provided, their ability to absorb its meaning will be reduced. It is with the larger range of factors in mind that the following recommendations are made.
707 It is recommended that:
• funders, producers and distributors of legal information re-evaluate the effectiveness of pamphlets and other written sources as the primary means of communicating information;
• funders and producers develop alternative and supplementary media for the provision of legal information to women;
• funders and producers consider the development of legal information in media that will meet the specific needs of women with disabilities;
• all organisations involved in the provision or distribution of legal information to women consider the following when developing a communication strategy:
– what information the target audience needs,
– how people in the target audience are feeling when they seek information,
– whether other barriers to effective communication with the target audience exist – ie, literacy, culture, socio-economic status, and
– the respective roles of the provider and receiver of information, ie, does the provider have an enforcement role which may discourage users of information to seek it from that provider.
“It’s not that we don’t understand. It’s that we don’t understand English.” – Meeting with Pacific Islands women, Wellington, 1996
708 Many women identified the limited availability of lawyers who speak languages other than English, and of legal resources in other languages, as further examples of an insufficiently user-focused approach to the provision of legal services. The overwhelming necessity for clients to be fluent in English is a substantial barrier for those who are not sufficiently familiar with the language to describe their legal problems in English or to understand any explanation that is provided.
709 At the time of the 1996 Census, 605 019 New Zealand residents (17.5 percent of the population) had been born overseas, a 14.7 percent increase over the previous five years. The New Zealand-born population increased by only 1.3 percent during the same period. While a significant proportion of immigrants are from English-speaking countries like Australia, the United Kingdom and Ireland, a large and increasing proportion are from countries in which English is not the predominant language. For example, between 1991 and 1996, over 60 000 new immigrants came from Northeast Asia, South East Asia, Africa (excluding North Africa) and Southern Asia.
710 The Census asked people to specify the languages in which they could have a conversation about a lot of everyday things. Almost a quarter of new immigrants (22.2 percent) did not speak English to this level. A higher proportion of adult female immigrants than adult male immigrants did not speak fluent English.
711 It is not only new immigrants who do not speak fluent English. For example, among Pacific Islands people who have lived in New Zealand for between five and 15 years, close to one quarter do not speak English. Among Asians who have lived here for that length of time, 18 percent do not speak English.
712 In the result, the Census reveals that over 12 000 Pacific Islands adults in New Zealand (6684 women and 5331 men) and over 21 000 Asian adults (12 423 women and 8649 men) do not speak English. These numbers exclude those who did not specify in the Census whether they speak “everyday” English (over 3000 people), and the approximately 1200 people from “other” ethnic groups who do not speak English.
713 Given that these figures relate only to conversations about “everyday things” and that the language of law is specialised, it is likely that far greater numbers of the immigrant population would not be able to communicate with their legal advisers in English. As was noted in chapter 7, there are few lawyers who speak other languages. For example, at the time of the 1996 Census, Samoan was spoken by 36 lawyers and a Chinese language was spoken by 99 lawyers.
714 One of the languages other than English in common use in New Zealand is sign language. At the time of the 1996 Census, 26 592 people (11 601 men and 14 991 women) in the population at large could use sign language. This compares with only 24 lawyers (15 men and 9 women) who could use sign language.
Interpreters
715 At several meetings with deaf women, the profound difficulties they experience when attempting to gain access to services were described. These include:
• the shortage of sign language interpreters (who are few in number and often booked up in advance);
• service providers’ failure to understand deaf people’s need for sign language interpreters;
• common misapprehensions by providers; eg, that deaf people can lipread, that a family member or friend can help, or that information can be understood if it is written down.
“What lawyers are available for deaf people? The lawyer had no sympathy or empathy for this woman. I told the lawyer that I was not an interpreter and this was ignored. Who helps this person? No one was available to interpret for her. No one is available to interpret to our people who are deaf.” – Transcript of hui with Mäori women, Rohe 12
716 Problems of a very similar nature were described by immigrant women. It seems that lawyers are more aware of immigrants’ need for interpreters, but immigrant women still reported using family members as interpreters in circumstances where they would prefer the services of an independent person. Concerns about the quality of interpreters were also raised. Clearly, there are many dangers associated with using unqualified interpreters in legal matters. They may lack professional interpreting skills (as opposed to conversational skills) and be unfamiliar with the meaning and use of particular legal terms. Lawyers cannot be certain in these circumstances that their clients have obtained the greatest benefit from their advice.
“Where Pacific Islands women are granted legal aid, interpreters’ costs should be able to be included in the legal aid application as a disbursement. It is, in our experience, dangerous to rely on family members to interpret on legal matters. In some cases we have found that the people interpreting have not really understood the process themselves. Strict guidelines would have to be put in place for the training and certification of any such interpreters.” – Report on Consultation with Pacific Islands Women, 32 (comment from consultants conducting the consultation)
717 An improved awareness by lawyers and other legal service providers of the need for interpreters, the processes of interpretation, and the risks of misunderstanding because of linguistic and cultural differences would reduce some of the barriers described to us. Appropriate training programmes for lawyers would clearly be of assistance. It is considered, given the structure of legal education in New Zealand (see chapter 11), that lawyers could be introduced to these issues, and to the practical skills involved in using interpreters, in the Institute of Professional Legal Studies’ training programme. The law societies’ continuing legal education programmes could then provide more in-depth training.
718 Some women called for more interpreters and more information about the existence of interpreters. Relevant here is the fact that the Wellington Community Interpreting Service has produced pamphlets which tell people in their own language how to access an interpreter if they are having difficulty communicating with English speakers. Each of two pamphlets contains information in 10 languages. The pamphlets also include a panel which says, in English, “I need an interpreter”, which can be shown to the English speaker. Legal service providers and members of the public could benefit from such information and further material about the services offered by interpreters. The two legal services directories (published by the Wellington and Auckland District Law Societies) now contain information about interpreters and lawyers who speak languages other than English. Such resources are to be encouraged.
719 Interpreters are not always available in areas where need arises. Another initiative of the Wellington Community Interpreting Service is TeliS, a service which since April 1997 has provided nationwide, 24-hour, seven-day-a-week access to interpreters. The service provides interpreters in more than 60 languages, and in most cases contact with the interpreter is immediate. Interpreters with the service are usually native speakers who have been trained in interpreting. While not as flexible as face-to-face interpreting, TeliS provides legal service providers with one means of communicating with clients who do not speak English. It is notable that early in 1998, as a result of the problems identified in this study, the Legal Services Committee of the New Zealand Law Society met with the co-ordinator of TeliS and offered to support its work. (LawTalk 495, 14 April 1998, 8)
720 A number of other concerns about the provision of interpreters in legal matters were raised by those consulted in the study. These include the limited training opportunities for people seeking to become qualified interpreters, the poor rates of remuneration paid by some state agencies for interpreting services, and the lack of clear career structures for interpreters. Research by the Department of Internal Affairs in 1997 confirms that these problems are widespread and that there is a need for further work before they can be tackled. (Status Report on Interpreting, 1997) In Australia, a multi-cultural country similar to our own, significant research has been completed by government and non-government agencies on a range of issues relating to the availability of appropriately qualified interpreters and translators. Certified training programmes, including national standards, have been established, which could provide a model for comparable New Zealand initiatives.
721 The range of concerns about interpreters which this study has highlighted would best be met through co-operative effort among state and community agencies which routinely interact with the many New Zealanders who do not speak English. Relevant state agencies include the Department of Social Welfare, Department for Courts, the Police, the New Zealand Immigration Service, the Department of Internal Affairs and the various health authorities. Relevant community agencies include the New Zealand Federation of Ethnic Councils (which has recently established a Women’s Committee), the Deaf Association of New Zealand, the New Zealand Refugee and Migrant Service, the New Zealand Society of Translators and Interpreters and the Wellington Community Interpreting Service.
Translations
722 While fluency in a language does not necessarily mean literacy in that language, in an increasingly multi-cultural society it is important that legal information resources are available to be used by those who read languages other than English. This study’s review of the legal resources available to the public in the areas of domestic violence, civil legal aid, and custody and access (see Access to Legal Information (NZLC MP4)) revealed that most of the material was available in English only. Depending on the group targeted, legal resources in a greater range of languages may be appropriate.
723 There is one caveat. It is clear from the information gathered in this study that providing pamphlets and other legal resources such as videotapes in languages other than English is not simply a matter of translation. The information must be meaningful to the audience. For example, particular concepts may need more or less explanation, depending on the language and culture targeted.
Conclusion and recommendations
724 The diversity of New Zealand women and their language needs clearly indicates that legal information must be available in a wider variety of languages. Accordingly, it is recommended that:
• the Institute of Professional Legal Studies and New Zealand Law Society work together to develop educational strategies to promote better understanding among law students and lawyers of the needs of people with limited fluency in English, and the needs of deaf people;
• the Legal Services Board and Department for Courts foster the co-ordinated efforts of state and community agencies responsible for providing services to New Zealanders from non-English and non-Mäori speaking backgrounds, to develop programmes for the training, career development and use of interpreters in the justice system;
• funders and producers of legal information develop and implement policies for the translation of written and other forms of information (for example, videotapes) in consultation with the groups of women most likely to use them.
CAREGIVER-FRIENDLY LEGAL SERVICES
Addressing the needs of women as customers may not require the development of new products, but rather attention to issues such as ability to access. For example, it may be easier for women to use services if children are also welcome. (Ministry of Women’s Affairs 1996, 21)
Lawyers’ services
725 Many women were concerned about the effects of an insufficiently client-focused approach by lawyers to caregivers. Whether in the context of a two-parent or one-parent family, women are usually the primary caregivers of children and other dependants. For example, 43 percent of women aged 25–29 years, compared with 23 percent of men in that age group, specified that they were looking after children at some time during the four weeks prior to Census night.
726 Those who offer services to the public are obliged, by s 44(1)(b) of the Human Rights Act 1993, not to treat any person less favourably than would otherwise be the case, by reason of any of the prohibited grounds of discrimination. Those grounds include family status, which is defined as “having the responsibility for part-time care or full-time care of children or other dependants”. (s 21(1)(l)(i)) Women responsible for the care of dependent children frequently said their lawyers seemed to take too little account of that fact. The most common complaint was that lawyers’ offices were not always child-friendly in their layout and facilities. Clients who had no option but to take small children with them to appointments felt particularly uncomfortable, as if they had “broken the rules”. Both lawyers and women clients also told us that the presence of young children in a lawyer’s office during appointments and meetings can distract clients from absorbing information and advice. Another complaint made by women was that lawyers and their staff can be unaware of the inconvenience that is caused by appointments at times which clash with the daily schedules of young children and their primary caregivers.
727 It is obvious that the presence of children at clients’ meetings with lawyers cannot always be avoided, for reasons which include the needs of breastfed infants, the desire to keep visits to lawyers secret from those who would otherwise be relied on to mind small children, and the difficulties of obtaining suitable and affordable childcare every time it would be convenient to have it. Where any of these conditions prevail, the only alternative to taking children to a lawyer’s office is for the prospective client not to go at all.
“A city lawyer was confident a particular woman client could have made a successful claim which would have been very worthwhile financially. However, the woman abandoned the claim when she was made aware of the number of times she would likely have to travel into the city from the outer suburbs to attend appointments with the lawyer and others: it was impossible for her to obtain childcare during the times she would need to be away from home.” – Submission 8
The courts and caregivers
728 It is not only lawyers’ office facilities and appointment times which present problems for clients responsible for the care of dependent children. The courts attracted criticism from New Zealand women in these regards too. Lengthy delays, especially in family and criminal court hearing schedules, were frequently said to be distressing for caregivers and their children, whether the children were at court or being cared for elsewhere by people who had not planned to look after them for so long. And women who had taken their children with them to court were particularly critical of the paucity of recreational, and even sanitary, facilities which are provided there.
“There are no facilities for children. We tried to set up a creche here but they wouldn’t listen to us. There is not even a changing room available for young mothers and their babies. One mother I know arrived at the court at 9.00am and she was still sitting there at 5.00pm that afternoon. The court people had forgotten about her. She had her child with her all day and was too scared to leave just in case she had a warrant served on her.” – Transcript of hui with Mäori women, Rohe 4
“. . . it is very distressing when women turn up with young children, the victim of executing a husband’s guarantee, even for a credit card, the husband’s often left the country and the women are unable to get legal advice. They are always embarrassed in courtrooms with no counsel, often with young children, even babies, and no facility nearby which is clearly available to them to leave the children, unlike the hospital creches.” – Submission 339
729 The project team’s inquiries of 59 courts around the country revealed that only five have a children’s play area and that 10 have toilet facilities suitable for attending to the needs of babies. Mäori women clearly regarded this as evidence of the justice system’s more general disregard for the importance of whanau in Mäori culture, and so of the importance of whanau support for Mäori who are involved in court proceedings. (See Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei, chapter 3)
730 The Department for Courts’ courthouse design standards require all new court buildings to contain a baby changing facility. In addition, all new Family Courts are required to include a designated children’s play area. When existing courts are being altered, the department tries also to include the facilities required for new courts, but the constraints of the existing buildings may prevent this. The standards certainly represent a positive move but their limited application means that many courts will continue to provide inadequate facilities for children and their caregivers for years to come. As well, the requirement that children’s play areas be included in Family Courts may not best meet the needs of court clients in different parts of the country, and in particular the needs of Mäori who are providing whanau support to defendants and witnesses in criminal proceedings.
Conclusion and recommendations
731 In light of the strong concerns voiced by women that their choice of lawyer may in reality be quite limited, especially when they have caregiving responsibilities, it is clear that the manner in which legal services are provided to women who are caregivers must be diversified. Accordingly, it is recommended that:
• law firms extend their efforts to promote the caregiver-friendly nature of their facilities and services, and the availability of home visits to clients who find it difficult to attend appointments at the firms’ offices;
• law firms review the caregiver-friendly nature of their facilities and services (through the use of client surveys, for example) and consult with women and community groups about ways to improve them;
• the New Zealand Law Society, its Family Law Section and district law societies publicise lawyers’ obligations under the Human Rights Act and co-ordinate the promotion of practices to overcome the access barriers currently faced by women who are responsible for the care of children.
It is recommended further:
• that the Department for Courts review its courthouse design standards with regard to the provision of play areas in courts, and develop options to allow sufficient flexibility in meeting the needs of court clients in each area of the country.
PHYSICAL ACCESS TO LEGAL SERVICES
It is unacceptable for any society to develop services intended for everyone’s benefit to which some people have limited or no access. What can possibly justify the exclusion of any person from what most members of society feel are indispensable amenities? If the service was created for all and it exists for most, it cannot be allowed to be unavailable to a remaining few. (Abella 1983, 2–3)
732 The 1996 Household Disability Survey reveals that nearly one in five adult New Zealanders (19 percent) has some form of disability. Two-thirds (67 percent) of that group have a physical disability (including mobility and/or agility disabilities) and 42 percent have a sensory disability (including hearing and/or visual disabilities). More than half of all adults with disabilities (55 percent) have an annual personal income of less than $15 000. Nearly half (45.8 percent) live in households which have a total annual income of less than $30 000. The proportion of adult New Zealanders with disabilities is likely to grow: more than one third are aged 65 years or more, and New Zealand has an increasingly ageing population.
733 Public awareness of the needs of people with disabilities is growing. This is apparent in legislation which recognises the right of people with disabilities to obtain access to buildings and services. Under s 47A of the Building Act 1991, new and altered buildings must make “reasonable and adequate provision by way of access, parking provisions, and sanitary conveniences” for persons with disabilities who may be expected to visit or work in the building and carry out normal activities and processes there.[27] The Human Rights Act 1993, with limited exceptions, prohibits discrimination in the provision of access to premises which members of the public are entitled to enter, and in the provision of goods and services.[28]
734 Despite those legislative provisions, women with disabilities said that gaining physical access to legal services presents them with major problems. They made particular mention of the difficulties posed by the siting of legal services in older buildings with poor physical access. New buildings, too, can present insurmountable problems for people with disabilities, because of:
• limited car-parking facilities;
• lack of wheelchair access;
• architectural features, such as elevators designed to form part of the wall facade (a problem for those with visual impairment);
• difficult access to washroom facilities.
“The women said that the hassle of getting there is often the first barrier to getting any legal information or legal advice. They said that new buildings are not vision friendly. Buildings often have reflective material on the outside, unmarked stairways, lifts which are difficult to use.” – Meeting with VIEW women, Palmerston North, 1997
735 Many of the women with disabilities who attended consultation meetings said that they were unsure of their legal rights, including those under the Building Act and the Human Rights Act. Ironically, the physical inaccessibility of the sites of the justice system, including the premises of legal service providers, may deny people with disabilities the assistance they need to enforce the very rights which promote their participation in society.
736 The obligations of the general law prohibiting discrimination in the provision of services are relatively clear. What may not be clear to legal service providers is how they should move to meet these obligations. In some areas of New Zealand, women with disabilities knew that certain lawyers are “disability friendly” because they will make home visits or meet clients in venues that are more accessible than the lawyers’ offices. The existence of such services is uneven but should be encouraged. Better publicity about the availability of such services, especially among community groups and agencies which provide support to people with disabilities, should also be encouraged.
737 It is relevant to note here that community law centres can be expected to play an important role in providing legal information and further services to New Zealanders with disabilities. In chapter 5, it was noted that limited resources are available to community law centres. The Legal Services Board, as funder of community law centres, has a particular responsibility to ensure that its funding criteria for community law centres take account of the costs associated with providing physically accessible premises. One step it could take is to establish a capital works fund for alterations to law centre premises. It could then assist the centres to undertake physical access audits of their premises. Further, the board, working in co-operation with law centres, could develop guidelines to ensure the accessibility of community law centre services to people with disabilities, whether by improved physical access or by the provision of mobile services.
Conclusion and recommendations
738 Women with disabilities clearly face barriers to their access to justice in light of the problems of physical access to some legal services. Accordingly, it is recommended that:
• all law firms carry out a disability audit of law firm premises to identify existing physical access barriers;
• the Legal Services Board and district legal services committees promote the development of new and increased disability-friendly services options by lawyers, including increased publicity of those services among community groups;
• the New Zealand Law Society educate law firms about the requirements of the Building and Human Rights Acts to assist firms to meet the requirements of the current law;
• the Legal Services Board establish a capital works fund for law centre premises which need to be made accessible to people with disabilities;
• the Legal Services Board and community law centres work together to develop guidelines to ensure accessible community law centre services to people with disabilities.
739 Another area in which an insufficiently client-focused approach operates as a barrier to women’s access to legal services relates to lawyers’ interpersonal communication skills. A competent lawyer requires many different skills to perform proficiently in day-to-day legal practice. These include drafting, advocacy, research, presentation and communication skills. From the extensive consultation conducted during this study, it is plain that women clients regard a lawyer’s interpersonal communication skills – their use of legal language, and their ability to listen, to check their understanding of the client’s situation and to provide advice in terms which the client can understand – as being of utmost importance. Yet diverse women, spanning the range of socio-economic levels and educational achievements, were highly critical of their lawyers’ abilities in these regards.
Legal language
740 Plainly, deficiencies in lawyers’ interpersonal communication skills can prevent clients from being properly informed of their legal rights and options. It was startling how frequently women said they were not adequately informed of their rights for the reason that their lawyers used legal terms – including terms like “custody”, “access” and “guardianship” – which were either not explained or explained in ways that the women did not fully understand. Indeed, a constant complaint made in the consultation meetings about legal information generally, and lawyers’ communications with clients in particular, was that the law is full of alien jargon which is too often assumed to be understood by non-lawyers.
741 Failures in communication can leave clients feeling very uncertain about the appropriateness of their lawyers’ advice. Women at the consultation meetings repeatedly said that such failures had left them with the highly troubling sense that they had no control over their lawyers’ conduct and were therefore totally dependent upon them. This unwanted sense of dependency is the antithesis of an effective lawyer/client relationship.
742 It has been noted earlier that the women who were consulted had mostly sought legal assistance in relation to matters which seriously threatened their own and their families’ welfare, including family violence, custody and access, family property and criminal matters. These may not be the only stressful circumstances to confront them. The very process of seeking assistance can compound existing fears and anxieties, and further impede their ability to ask for and absorb information. The factors most often said to hinder women clients’ ability to question their lawyers’ words and conduct were:
• the unsettling and highly personal nature of the situations which bring women into contact with lawyers, which can distract them from identifying and asking questions about matters they do not fully understand;
• the gulf which can be seen to exist between lawyers and women clients for reasons of culture, gender, education, wealth or other matters which have the effect of reducing clients’ confidence to ask questions, especially about issues which lawyers may not have mentioned, such as their fees;
• clients’ embarrassment, or loss of pride, at being thought to be ignorant or stupid for not understanding matters that their lawyers assume they know, or that have been inadequately explained.
“The women felt that although lawyers may feel they are explaining things, often the language is such that the women do not understand what is being said. This means they fail in some cases to be in a position to predict what the long-term results of a decision will be. Sometimes they have agreed to arrangements without understanding what is inherent in that decision, eg, guardianship rights. Sometimes lawyers assume a basic understanding of the law on the part of their client that just is not there. One woman said that after she had asked a question once and not understood the reply she felt too dumb to ask again.” – Submission 29
“I was too ashamed to ask the lawyer to explain things, especially when the lawyer had already told me that thing and I still didn’t know what he was talking about. I kept thinking I should know.” – Report on Consultation with Pacific Islands women, 16
“When women are brought up with the attitude that they can leave business and legal matters to men to deal with, it is difficult for many to confront these issues and demand explanations and a right for their views to be heard.” – Submission 244
“When I went to see a lawyer he kept talking in big words that I couldn’t understand. I left his office not even knowing what he had said to me. I felt so stupid. I never went to another lawyer again. Why can’t they talk the same language as us? Why do they have to hide behind those big words?” – Transcript of hui with Mäori women, Rohe 9
“. . . I don’t feel comfortable going to lawyers at all. It’s like walking into domains of wealth and opulence and it’s not just the surroundings, it’s not just the decor, the furniture. It’s where they’ve lived, how they’ve lived their lives and for me to talk about some of the ‘grubby’ things that have happened in my life was really hard – and I’ve had to go out at times of stress and stuff.” – Report on Consultation with Pacific Islands women, 21
743 The very frequent criticisms made of lawyers’ use of specialised legal terms and other complex language suggests that lawyers must be encouraged is to learn to speak about the law and legal processes in everyday terms. For competent lawyers, who understand the meaning of the concepts and processes for which specialised legal terms have been coined, this should not be a difficult task.
Understanding clients’ information needs
744 Women were not only critical of lawyers’ use of terminology they do not understand. They also gave many examples of lawyers not listening, and overriding or evading the women’s questions and concerns.
“A woman made a few comments about her lawyer. She said that he is either overloaded or incompetent. He doesn’t appear to have heard her in terms of her requests at all although it is not worth changing lawyers as she is near the end of the settlement process with her ex-husband.” – Submission 381 (telephoned)
“Legal aid clients are not encouraged to assert their rights, and lawyers tend to portray the attitude of wanting to close up the file as quickly as possible in order to get along with ‘real business’.” – Submission 228
745 A particular concern among many women was that their lawyers’ failure to provide information about the practical details of the processes in which the women were involved indicated that they did not understand how important those matters were to the women. Women wanted to be informed about the processes in which they would be directly involved: where and when will meetings or fixtures related to their case take place? how much time will they take? who will be there? what is the role of any people with official-sounding titles who will be there too?
“For sure I had no control over my case, because I didn’t know the legal processes and the legalities in it. I didn’t even think to ask my lawyer because I thought he had told me everything I needed to know, but he hadn’t. It was only when I started getting ugly about not knowing what was going on that my lawyer kept me up with the play.” – Report on Consultation with Pacific Islands Women, 18
“There is a feeling of being cut off and removed from the system while two lawyers make their own solutions, and their clients, who are the people most affected, are left out of the process.” – Submission 146
“Our experience is that clients referred to counselling under section 10 of the Family Proceedings Act are often inadequately informed about what to expect – their lawyers have not explained what counselling is or what it is for.” – Submission 16 on MP9 (Relationship Services)
746 By contrast, women whose lawyers had kept them well informed about the processes relevant to their legal matters praised the quality of service they had received.
“One woman felt very happy about an instance where she felt her female lawyer went to a great deal of effort to ensure that she (the client) remained in control of the process. The lawyer kept up with correspondence, coped well with the client’s children, ensured meetings were short and to the point, and always kept the client informed and legal documents up to date.” – Submission 331
747 A 1995 study commissioned by the Law Society of New South Wales illustrates that client satisfaction is based only in part on expectations of the outcome of legal matters, because clients’ knowledge of the outcome is limited. Certainly clients hope that the service they receive is “bigger, better, faster and cheaper”, but they have no certain way of telling whether it is. The study found that clients make their assessment of the quality of the service by relying on their own interactions with their lawyers.
Clients complained about the quality of their lawyers’ services in terms of inaccessibility, lack of communication, lack of empathy and understanding, and lack of respect (“he made us feel small and unimportant”). Equally, they acknowledged and commended these qualities when they are exercised (“He was more than a solicitor, he was human”). Indeed, the pre-eminence for clients of indicators of process over outcome is encapsulated, at an anecdotal level, by one client describing how she didn’t mind her lawyer losing her case because she knew “he had done everything that could be done”; and by another, “[H]e made me feel like I was his only client (even though of course I knew that I wasn’t)”. (Armytage 1996, 365)
748 In New Zealand, the 1995 Legal Services Board study, In the Interests of Justice, commented, in respect of criminal legal aid matters:
It is frequently assumed that a client’s level of satisfaction with their lawyer’s service is determined by the outcome of the case either in terms of verdict or sentence. This is not supported by the data. There is a link, but it is moderate to weak rather than moderate to strong. (116)
749 In both Australia and New Zealand it has been noted that complaints against lawyers are often caused by breakdowns in communication rather than by breaches of the rules which govern lawyers’ conduct. In The Rain Dance – A Marketing Book for Lawyers, Australian writers Jane Fenton and Anna Grutner note that:
. . . the majority of complaints about law firms arise from client dissatisfaction with service rather than a service . . . . Complaints about the calibre of legal advice are comparatively rare. (Fenton 1996, 140)
Recent district law society annual reports include the following comments:
The vast amount of complaints received do not amount to “misconduct” by a practitioner as such, but rather arise out of a lack of communication by the practitioner . . . . (Waikato Bay of Plenty District Law Society Second Annual Report 1995–1996, 9)
It is clear from the Committee’s experiences that most of the problems could be avoided by better communication. (Canterbury District Law Society Annual Report and Statement of Accounts for the Year Ended 31st December 1996, 12)
And in Auckland, the cost revisers (who determine clients’ complaints about lawyers’ fees) have recently stated that, in their experience, costs disputes are seldom just about money. The real issues might turn out to include, among other things, failure of timely, essential, two-way communication between lawyer and client. (LawTalk 495, 14 April 1998, 9)
Communication skills training
750 Women around New Zealand made strong calls for legal service providers, and particularly lawyers, to be better trained to communicate with diverse New Zealanders. The skills that it appears lawyers need most urgently to develop are listening and understanding, giving appropriate information in understandable terms, interviewing, and cross-cultural and other skills associated with client relations.
751 In The Education and Training of Law Students and Lawyers (NZLC MP 11) and in the meetings held with legal educators, it was asked whether there should be a greater emphasis placed on training lawyers in interpersonal communication skills. Because the 13-week compulsory course which law graduates must complete before being admitted to practice is skills-based and already includes relevant training, those questions were focused on whether there should be increased efforts to teach interpersonal communication skills in university law courses and by means of lawyers’ continuing legal education. Traditionally, university legal education has placed a strong emphasis on written communication skills and, more recently, on the use of plain language. There has also been a focus on advocacy skills, through the use of university moots, for example.
752 A small minority of those who made written submissions in response to the consultation paper thought that universities should not be involved in that sort of training, and two respondents, one a district law society, said that communication skills cannot be taught. By far the majority of respondents, however, including community groups, lawyers, legal educators and state agencies, thought that further efforts were needed to train law students and especially current practitioners in interpersonal communication skills.
“A lawyer without interpersonal skills is like a mechanic without a wrench.” – Submission 8 on NZLC MP11
“Interpersonal communication skills should be obvious at the time of selection of candidates for entry to law school; it should stand alongside academic competence and be an important asset for deciding who gains entry to law. Skill training should be an integral part of the degree throughout.” – Submission 18 on NZLC MP11
“It is important that this training be as experiential as possible and involve, constructively and when appropriate, those who receive legal services (and may have stories to tell!). There should be a required level of competence in this area, as there is with any other topic.” – Submission 17 on NZLC MP11
753 The responses from legal educators confirm that there is an increasing focus on these matters, especially during the 13-week compulsory professional training and in the continuing legal education which is offered to members of the profession. Each of the five university law schools offers some courses (for example, in mediation, negotiation or interviewing) which develop law students’ interpersonal communication skills. Factors that were said to limit the more widespread availability of such courses at university level, and their effectiveness at that stage of a lawyer’s training, were:
• that skills courses, with their “hands-on”, practical focus can be run only with quite small groups of students, which makes them an expensive use of university resources;
• that there are always limitations on mock dealings with “clients”, especially when trainees are not working in the environment in which the skills will be able to be practised immediately;
• that the law degree is a finite block of study time upon which there are numerous demands by those with vested interests in the quality of law graduates;
• that, especially in light of the law schools’ responsibility to equip law graduates for careers other than in legal practice, the post-university stages of lawyers’ education, particularly the continuing education provided by the profession for newly admitted lawyers, are vital for building onto the base of knowledge and skills which are the universities’ and the professional training programmes’ focal points.
754 It appears that there is widespread acceptance among legal educators that each of the three stages of lawyers’ education in New Zealand has a part to play in developing the interpersonal communication skills that are so necessary for the competent practice of law. Of those three stages, however, only the necessarily limited curriculum of the 13-week professional training course is provided to all potential lawyers. With the exception of one law school, the university courses which emphasise interpersonal skills are optional, and the continuing legal education programme contains no component that is mandatory for all lawyers. In addition, as is elaborated in chapter 11, each of the three stages of lawyers’ education in New Zealand is undertaken with a considerable degree of independence of the others. There is no one body which has oversight of the three stages, and legal educators from the three stages have few opportunities for discussion of matters that are relevant along the continuum of lawyers’ education and for which an agreed plan, or statement of intent, might be devised.
Conclusion and recommendations
755 It is of critical importance that those who are and will be lawyers are highly-skilled in communicating with the full range of New Zealanders who are and could be their clients. To this end, it is recommended that:
• the Institute of Professional Legal Studies provide in its courses information about, and teach techniques to overcome, the barriers to communication that diverse clients experience when seeking information from a lawyer;
• the New Zealand Law Society continue to include wherever possible in its continuing legal education programme material on interpersonal communication skills;
• the proposed Code of Client Service emphasise the vital importance of high-quality, plain-language communication between lawyers and their clients.
756 Women frequently commented that lawyers divide up women’s problems into the “legal bits” and “everything else”, and that some lawyers are not equipped to provide relevant information beyond the “legal bits”. In response, lawyers often reminded us that they are not social workers. Many lawyers said that, particularly upon family breakdown, women clients may expect their lawyers to provide a range of services, including counselling services, which are both beyond lawyers’ ability to offer and beyond clients’ ability to pay for – particularly given the legal aid time “ceilings”. Women lawyers, in particular, frequently commented that women clients can expect more of them, in the way of emotional support and lower-cost services, than they are able to provide.
757 Accordingly, some lawyers were of the view that women’s concerns about the separation of lawyers’ services from other relevant services did not justify a response from the legal profession. Rather, they suggested, clients tend to have unrealistic expectations of the service they will receive from their lawyers.
758 However, discussions with women who had been disappointed with aspects of their lawyers’ service revealed few “unrealistic expectations” that could not have been corrected by their lawyers’ carefully explaining the tasks to be done, and by whom, and the likely time and cost involved in the process. There were certainly some misapprehensions about the roles of different professionals who may become involved in the resolution of family disputes. For example, the title “counsel for the child” can cause confusion because it implies that the person will act as a “counsellor” for the children whose interests are to be represented. That in turn leads to expectations that counsel will, at least, meet with and talk to the children, and perhaps take further steps to help them adjust to the circumstances which have led to counsel’s appointment. But these are not “unrealistic expectations”: they are predictable misunderstandings, caused by unfamiliarity with legal terms and processes. Lawyers who act for parents of children need to be alert to them so that information is provided to clarify the situation.
759 From what women said, and as lawyers acknowledged, it cannot be assumed that clients know the “right” places to go to for help when they are confronted with an upheaval in their everyday circumstances. Given the limited availability of community-based legal services which might otherwise provide assistance, it is readily understandable, from women clients’ standpoints, why many would expect lawyers to give up-to-date and relevant information about other services which could assist the women to deal with the variety of issues confronting them. Many women commented on the desirability of their lawyers providing them with relevant social services information, perhaps with the aid of a community worker or lay advocate.
“. . . anyone involved in the legal area, especially lawyers, needs the aid of a ‘community worker’. Often when a person sees a lawyer there are other issues which need tending to, eg, inadequate housing, lack of parenting skills. These issues can then be taken up by the community worker. I know there is a high demand in the community for these workers, as my own schedule dictates. Not enough time, too much work and not enough resources. There is a need to provide all-round service. This can happen if more funding is made available for community workers.” – Submission 11 on NZLC MP4
“One thing that could happen immediately is if every law firm employed at least one or two community workers. That’s an instant fix which could happen immediately.” – Report on Consultation with Lesbians, 69
760 There is a range of means by which lawyers might meet their clients’ needs for information about services related to the problem for which they have sought legal assistance. For example:
• lawyers who are not familiar with relevant social services in their district could learn about their location, what they offer, and on what terms so that they can pass on that information;
• lawyers could encourage their district law society to include in an annual publication (such as a legal services directory) a list giving the contact details and an explanation of relevant services in the area, so that lawyers can pass on that information;
• law firms with clients likely to benefit from that kind of information could employ community workers to assist those clients;
• individual firms, or a number of firms together, could establish an arrangement with either a social service organisation, or individual community workers equipped to meet the range of commonly requested client needs.
Conclusion and recommendations
761 It is desirable for legal services to be integrated as much as possible with related social services. Accordingly, it is recommended that:
• lawyers and law firms review their current familiarity with social services that are relevant to the needs of their women clients;
• lawyers and law firms explore the development of new and diverse ways to link with relevant social services in their areas (such as through the employment of a community worker);
• district law societies explore the development of resources (in consultation with local communities) that would assist lawyers and law firms to contact social services relevant to their women clients in their area.
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