by Jennifer Howard
As officers of the court, fluent in the language, creators of, or at least participants in, its local practices, lawyers sometimes forget that many would-be litigants enter the courthouse with much trepidation and misinformation. While law school on the whole seeks to prepare students for their role as knowledgeable problem solvers, clinics provide students with a unique opportunity to learn about how to use that knowledge to help real people, with real problems. Explaining the legal system is one of an attorney’s most important tasks.
The Domestic Violence Institute at Northeastern University School of Law currently offers students two opportunities to learn to advocate for survivors of domestic violence: one through the Legal Assistance to Victims Project, a new community lawyering project aimed at connecting survivors to legal services at those places they first turn to for help; the other, through the Domestic Violence Clinic, founded in 1991. While both programs strive to educate students about the unique challenges faced by survivors navigating the legal system; it is the Clinic that delivers the chance to advocate in court on their behalf. The experience of direct, in-court advocacy provides soon to be lawyers many important lessons.
The legal system is not mystical; you can figure it out. Snowstorms of historical proportions hit the city and court is cancelled for two days. Client has no idea when to appear for her hearing, there is no information on her forms and her clinic student advocate has no idea how the cases are rescheduled. However, the student does know who schedules all of the restraining order cases and quickly tracks down the answer for his client. After weeks of intensive training on both the social science dynamics of domestic violence and the legal remedies created to combat it, students observe actual court sessions where lawyers argue, witnesses testify, and judges decide a very high volume of cases. At the start of the quarter, most students are unfamiliar with where to sit, where to stand, who else is in the courtroom, and what each person’s role is. By the end of the quarter, students are comfortable approaching the all-powerful courtroom clerk, know where to retrieve court orders and make sense of what appears to be an unpredictable order of events. As court advocates, students learn how to navigate the halls of the courthouse, how to find the answers to their questions, how to correctly commence a case, where to take their client for the most private interview space and whom to ask for copies when the clinic copier runs out of toner. Clinic students end the quarter with the ability to demystify the system for their client.
The law does not always work the way you think it will (or should). Client receives a restraining order, which includes an order from the court for the defendant to immediately vacate their shared residence. Client leaves court that day relieved that they will finally have a chance at peace in their home. A week and a half later, the police have still not served the order on the defendant, defendant is still living in the home and the client has lost faith both in the system and in the student’s ability. Clinic students spend hours considering the laws designed to protect survivors of domestic violence and understandably develop ideas about the kinds of problems they anticipate solving and how the law will help them. Sometimes there is a gap between the letter of the law and implementation of the law. At the beginning of the quarter, students are generally surprised by this dilemma; while by the end, they have learned like all good advocates, to anticipate potential problems, to the extent they can. Moreover, they learn how to develop their “theory of the case” in a way to maximize the law’s usefulness to their current client’s needs.
Setting and managing client expectations takes empathy, understanding and bravery. Client describes at length the menacing behavior of a shelter roommate. Client feels they cannot leave their room for fear of confrontation with the roommate. While utterly miserable, the client’s complaints do not appear to meet the standard for a 209a restraining order. What should the student do? Perhaps one of the greatest skills students begin to develop in clinic is breaking the news to a client that the legal strategy they are pursing will not likely produce the results they want or expect. A client who comes in expecting to use the restraining order system to evict a menacing shelter roommate is going to need a lot of straight talk about the limits of the tool they seek and the boundaries of the court’s authority. A clinic student must actively listen to the client’s concerns so they can clearly identify the client’s goals and then provide meaningful options to achieving them. This skill requires not only exceptional listening and reasoning; it requires the courage to deliver a message the client does not want to hear.
It’s not about you; it’s about them. Client tells clinic student not to call her house under any circumstances. Days later, student obtains information (at the client’s request) that will be undeniably helpful to the client; but client has not called the student at the times previously set. What should the clinic student do? Clinic students spend a great deal of time interviewing their clients, dissecting their issues and examining their options. They research, make calls, write letters, make more calls and work tirelessly to advocate for their clients. Sometimes, their efforts are met with obvious appreciation and active engagement in the process. Sometimes, their efforts are met with silence—as in multiple unanswered calls, missed appointments or absences at court hearings. Clinical pedagogy, focused on self-reflection and supportive supervision, fosters an ability to consider alternative explanations for a client’s decision to “check out” that properly frames the issue in terms of client respect, as opposed to wasting the lawyer’s time. The clinic pushes students to challenge their need to deliver the answers against what might be in the client’s best interest.
Preparation, without flexibility is useless. Client and student spend two weeks preparing for a two-party hearing on a restraining order. Student has researched the law, developed her theory of the case, prepared her client to testify, talked with witnesses and identified the most promising arguments on her client’s behalf. Half way through the hearing, the Judge declares she wants the student to contact housing staff where the client lives to determine if there are other options and asks everyone to take a seat. Student connects with housing staff and reports back to the Judge, who is very appreciative of the student’s efforts. Restraining order denied, but situation is resolved through student’s phone calls. There is no substitute for case preparation. However, problems sometimes present multiple possible solutions (of which litigation may only be one) and learning to move between options often yields the best results for clients. There are times overburdened courts depend on the creative thinking of attorneys to resolve conflict. Clinic students have the opportunity to practice these skills.
Advocacy is about more than knowing and using the law; it is about helping your client know and use the law. Client enters the courthouse with one idea: she needs to remove her abuser from their home. Client approaches the restraining order window and blurts out vast amounts of information to a person who hands her a clipboard and some papers to fill out. Luckily that day, NUSL clinic students are present in court to help. A student spends hours with client, who recounts seemingly countless examples of abuse and disrespect, a few bright points in the client’s history with the abuser, developmental delays experienced by her child, and the client’s personal battle with mental illness. The client is scared of both the abuser and the system she is now engaging. Student is able to help client begin to understand what the law can do (and not do) to help, how the process will work, and what the client’s legal and non-legal options may be. In general, clients come into court with little or wrong information about what the legal system can do for them or how they can do it. Translating unfamiliar language (who is the plaintiff? who is the defendant?) patiently explaining court process (what is a complaint and who will see it, when?), accompanying them to the court room (sometimes serving as a literal barrier to their abuser sitting in the next row) and again translating and explaining the results of the hearing, assist a client in achieving their goals. Moreover, helping them understand the system contributes to their perceptions of whether justice has been served.
The Domestic Violence Clinic at NUSL is anchored on a principle of client empowerment, achieved through active listening that breaks a survivor’s isolation and provides them with a safe space to carefully consider available options. While obviously focused on assisting primarily survivors of domestic violence, the lessons gleaned from clinic practice carry over to any kind of lawyering and practice. The clinic provides a unique opportunity to experience learning the law, by being a lawyer.