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Engaging in Empowerment-Driven Legal Practice

By Hilda Bahena & Andrya Soprych

Many people choose to become legal aid attorneys because, believing in social justice, they desire to help vulnerable individuals and families obtain equal access to our legal system. This is a daunting task because the number of individuals and families in need of legal services far surpasses legal aid resources. We are easily left feeling overwhelmed and frustrated without enough resources. Working from a specific framework is one way to focus and manage the work. Empowerment-driven legal practice improves client outcomes and benefits stakeholders from the client and community to the attorney and legal aid organization. Here we focus on the benefits for the attorney, the client, and the attorney-client relationship and suggest tools to facilitate adopting an empowerment-driven legal practice model.

Empowerment-driven legal practice relieves the attorney of the pressure to “save” the client or “resolve” the client’s entire problem.

Helping Versus Empowering

To engage in empowerment-driven legal practice, we need to define what we mean by “empowerment.” We would like to challenge you to think about the connotations of the word “help” and “empower.” Helping assumes that the person providing the help is in control; the helper is the expert and the gatekeeper for what the help is and how it is provided. Helping can breed dependence because the focus is on solving a problem for a client. In some cases helping causes the client to become helpless; in other cases it allows the client to shift responsibility for resolving the problem from the client to the attorney.

Empowerment, by contrast, takes the focus off the attorney and places it on the client. This shift can dramatically change the roles and expectations of each stakeholder. When an attorney promotes empowerment, that attorney believes that clients “are capable of making their own choices and decisions. It means not only that human beings possess the strengths and potential to resolve their own difficult life situations, but also that they increase their strength and contribute to society by doing so.”1

Practicing empowerment-driven lawyering requires and allows the client to be engaged in the legal process. It allows the attorney to focus on solutions that are sustainable by the client because the client is actively participating in the case strategy. See table 1 for the contrast between helping and empowering as we relate it to legal representation.

We all occasionally use the word “help” in conversation and intend the connotations that we have attached to “empower.” This distinction begins to define what we mean by “empowerment-driven lawyering” and encourages you to reflect on your current approach and to adopt an empowerment framework for your practice.

Reflection

You should know how you are currently practicing so that you can see where you want to make adjustments. When you review table 1, do you see yourself more on the left column or the right? Is there a difference in what you believe and how you practice? Do you find yourself spending more time telling clients what you can do for them or talking about their role? Take some time to think about what you believe your role is with clients, what you believe your clients’ role is, and how that drives your practice.

If you find yourself identifying with how we have defined “empowering,” great! The tools listed under the heading “Tools” below are aimed at strengthening your alignment of your practice with your beliefs. Many may find difficult distinguishing their duties as attorneys from the responsibility to resolve the cause of the legal problem. These attorneys likely identify with how we have defined “helping.” If this resonates with you, you have taken on an enormous obligation. Even if your clients’ problems could be resolved and maintained entirely within the court system, that would be an arduous task.

The reality is that your clients’ problems are deeply rooted in other systems, be they social, emotional, economic, or otherwise. You can help your clients use the legal system to influence the other systems. Ultimately, however, the client must choose and maintain any change or resolution. By shifting some of that responsibility back to the client, you will increase positive outcomes and sustainability. In whichever camp you find yourself, or if you are split between them, engaging in empowerment-driven legal practice yields tangible benefits for the attorney, the client, and the attorney-client relationship.

Benefits

Attorneys benefit from empowerment-driven legal practice by making efficient use of scarce attorney resources, protecting against secondary trauma and burnout, and defining the attorney’s role.2 Clients benefit by recognizing their power to take responsibility, set goals, and take action. And the attorney-client relationship benefits from enhanced communication between attorney and client. In reality the benefit to one leads to benefits for the others.

attorney
As a public interest attorney, you work in a system where the people in need of quality legal services substantially outnumber the attorneys who are in a position to provide those services. You must make difficult decisions about accepting and rejecting cases with legal merit or sympathetic facts while juggling an already overwhelming workload and doing your best to provide quality legal services.

Empowerment-driven legal practice uses your time and legal expertise efficiently. First, it improves your communication with clients. Second, you may discover that you have been completing tasks that your client is capable of doing, and shifting that work to the client will be appropriate. Third, you will improve your assessment of and engagement with clients, and this will help you decide which cases to accept and minimize the guilt you may feel for having to say no. These steps will reduce both the amount of time you spend working on a case and the delays to case closure caused by client inaction or indecision.

The third point is useful not only for maximizing scarce resources but also as a protective factor against burnout. Without a model or framework for how you practice and what your priorities are, you are at risk of making decisions subjectively, perhaps being influenced by how much you were able to relate to or liked a client, your mood or level of stress that day, or a personal feeling of responsibility for resolving the client’s problem.3 Not only are these not the wisest ways to make decisions, but also they break down and blur professional and personal boundaries. You begin to feel personally responsible for case acceptance and case outcomes instead of focusing on your professional role in assisting the client.

Overpersonalization can quickly lead to burnout, especially when working with populations who have experienced trauma through discrimination, oppression, racism, and community and domestic violence. Empowerment-driven legal practice encourages self-reflection to build self-awareness and buffer against burnout. Understanding how clients, their situations, and their stories affect you personally will help you deal with secondary trauma in a healthy way, and this will in turn keep you at your most able in advocating for clients.4

One way to reflect on this is to think about whether you tend to sympathize or empathize with your clients. The definitions of empathy and sympathy contain a lot of gray area. The two are often interchanged or confused, and so we define what we mean for each term here.5 Sympathy is about the attorney. It focuses on your feelings for the client and involves imagining how you would feel if you were in the client’s situation. Because sympathy is so personal, it not only opens you up to secondary trauma and burnout but also puts you at risk of losing sight of the client’s goals and instead inadvertently replacing them with your own. You risk taking action in a way that is inappropriate or offensive because how you would feel or react may be different from how the client would feel or react. The client may walk away feeling like you do not understand or have not heard what the client said.

Empathy, by contrast, is about the client. It involves the attorney understanding how the client feels and what the client wants, feeling with the client instead of for them.6 Personally empathy creates a healthy detachment that buffers against secondary trauma because you are not taking on the client’s trauma and you are not experiencing it yourself. Professionally the client remains the focus of your work; the client feels heard and understood, and you can develop a healthy, productive attorney-client relationship.

Being attuned to the emotional connection of the other key players (e.g., judge, parties, opposing counsel) to the case issues also will allow you to create a better case plan. Attorneys’ education and training are focused on logic and reason, the idea being that to remove emotion and feeling from the work is to be able to develop a reasonable case.7 This approach leaves attorneys at a disadvantage because in reality emotion and human interaction affect decision making.8 Awareness of this reality encourages a nuanced legal strategy; for example, if you realize that the judge dislikes your client, you may present a case differently from how you would if the judge were sympathetic toward your client.

Empowerment-driven legal practice uses client strengths to build a relationship engaging the client, works to balance the inherent power differential, elicits the client’s goals, and moves the client to action.

Another way empowerment-driven legal practice protects against burnout, maximizes resources, and benefits the attorney is by defining the attorney’s role. Many, if not all, of us personally believe in social justice and helping others. These personal convictions have led us into a profession where we can advocate and achieve justice for those in need. Feelings of personal responsibility to help can easily blur with our professional duty to advocate justice. Some amount of this invigorates our work and keeps us engaged. Too much leaves us in a position of power as a legal expert taking over our clients’ lives as we try to resolve their problems for them. Empowerment-driven legal practice relieves the attorney of the pressure to “save” the client or “resolve” the client’s entire problem.

Instead the attorney’s role is to be the resource that gives the client information on how and what the court is looking for when deciding a case.9 By shifting to a resource-role approach, you give your client choices of goals and actions and the potential consequences, positive and negative, attached to each choice. You are an expert in the law; the client is the expert in the client’s life. The attorney benefits from this role definition by being relieved of unrealistic pressures and potentially saving time from doing work outside the scope of the attorney’s role. The benefit to the client may be even greater since it is a first step in the client being empowered.

clientEmpowerment-driven legal practice focuses on partnering with the clients and communities we serve. Clients are more likely to be invested in achieving legal results if they have actively participated in deciding the ultimate case goals.10 Such a legal practice gives clients the power to take responsibility for their lives, to make decisions, and to accept the results that accompany their choices.

Taking responsibility does not mean assuming blame or that the legal crisis is the client’s fault; rather, clients have a role and an investment in achieving the outcome they desire. This benefits clients who are used to being told what they cannot do, what they do not have, and what their weaknesses are. In encouraging them to take responsibility, you are telling them that they are strong and can affect their situation.

Once empowered to take responsibility, clients can engage in setting goals for their cases. A common consequence of living in poverty is to have no choices and no control. As a public interest attorney, either you can keep clients having no choices or control by telling them what the goals and outcome of their case should be or you can educate them on their legal options and encourage them to tell you what they want.

Understanding what your clients want can help you together set reasonable and workable legal goals. You may need to help your clients believe that they can select their legal goals. One way to begin is to explain your role as a tool for clients to use to reach their goals, and not as an authority trying to prescribe what is best for your clients. This role can be hard when you see the harm that can come to clients from losing subsidized housing or not getting a favorable custody decision; however, we must give adults the dignity of making their own choices whether we think those choices are good or bad. Reinforcing your role as a “tool” or “resource” to clients empowers them to make informed decisions.

Clients can become paralyzed when they are consumed by feelings of helplessness and despair. Their feelings can legitimately interfere with their processing the legal proceeding and legal options. Their paralysis makes moving their cases forward almost impossible because they cannot complete tasks and do not do anything to improve their situation.

Partnering with the client from the beginning and explaining the legal options and the benefits and risks attached to each option give the client control over the direction of the case. Sharing power in the attorney-client relationship helps the client take ownership of the case instead of becoming paralyzed or disengaged. Taking ownership creates investment, encouraging participation. If a client is an active participant, the client is more likely to take steps to give the attorney the needed evidence to present to the court.

Empowerment-driven legal practice essentially engages clients to believe that they can affect the outcomes of their cases—to tell you what they want and what they are capable of maintaining. Crafting the legal strategy around clients’ realistic goals and desired outcomes improves client participation. Active client participation is crucial for client success within and beyond the courtroom and is necessary for maintaining an appropriate professional attorney-client relationship.

attorney-client relationship
Communication is the cornerstone of the attorney-client relationship and of effective representation. Empowerment-driven legal practice uses client strengths to build a relationship engaging the client, works to balance the inherent power differential, elicits the client’s goals, and moves the client to action.

Active client participation is crucial for client success within and beyond the courtroom and is necessary for maintaining an appropriate professional attorney-client relationship.

As attorneys, we are taught to focus on the problem, the deficit, the “wrong.” To a point, this is necessary to conduct a legal analysis. After all, identifying the legal issue, the cause, and the available legal remedies is the service being provided to the client. A prolonged focus on deficits, however, reinforces a client’s feeling of having no control and being personally deficient, especially if the client is forced to be part of the court process.11 Such a focus highlights the attorney’s power and the client’s lack of power.12 Clients who feel powerless are likely either to surrender all control of the process or to fight you every step of the way. If they surrender all control, the same or similar legal problem will likely reoccur with the expectation that you or someone else will “fix it.” The clients believe that they have no control over the issue and that therefore taking steps to change would be futile. If they have the opposite reaction and have an iron fist around the little power they do have, they will seem to be digging in their heels and forcing you to drag them along, making a resolution of the issue difficult, if not impossible.

Empowerment-driven legal practice encourages the attorney to focus on client strengths and away from deficits or blame as soon as possible. Often “strength identifying” almost immediately draws clients into the relationship, builds investment in the case and themselves, and creates responsibility on their part. A balanced attorney-client relationship empowers clients to have choices and control over their lives. After the attorney assists a client in identifying the client’s strengths, the attorney and the client can together find the legal solutions appropriate for the client. The client and the attorney can then request legal remedies that are practical and reasonable for the client within the parameters of the court system. Remember that “winning” the case does not matter if the client is unable to comply or follow through with the court orders and henceforth avoid the legal issue.

There are only so many ways to approach and resolve a case; typically they all require the client to take action or compromise. Therefore you must be able to counsel the client toward action. Often clients cannot see their own strengths because they are overwhelmed by their circumstances. If you can assist clients in recognizing and acknowledging that even in the bleakest space they are using skills that keep the situation from being worse, you can encourage clients to keep using those skills and engage them to take the next step toward a solution.13 This approach can stop a case from falling apart or being stuck. The client becomes empowered by actively participating in the court process.

Deliberately following an empowerment-driven approach in legal services can reduce miscommunication in that the client’s desired goals are ascertained and a balance in the attorney-client relationship is created.14 Empowerment-driven legal practice helps us attorneys think with purpose about the message we are sending and how we are conveying our message to influence the actions of all those involved. Such a legal practice helps us recognize ineffective communication and reframe it so that we can get our intended message across. And such a legal practice can improve lawyering, advocacy, and case results.

Tools

Empowerment-driven lawyering may require a shift in beliefs. To be successful, you must believe that people can make decisions and resolve problems.15 You become a tool that clients may use because of your expertise in the legal issue, but you are not the expert responsible for resolving their problem. If you already believe in empowerment or are ready to shift to it, these tools will help you maintain an empowerment-driven legal practice.

look through a strengths perspective
You can interact with clients and consider their cases through a strengths perspective.16 Emphasizing strengths empowers and motivates. In collaboration with your clients, you identify and use their strengths to achieve their goals. Framing your questions and conversations to elicit or highlight your client’s strengths requires a conscious effort. When you must talk about problems, weaknesses, or shortcomings, do so in a constructive way and if possible highlight what can be done to improve problems, weaknesses, or shortcomings:

  • “I can see it took a lot of effort to find child care so you could come to this appointment on your own. Your coordination skills are a strength of yours and will be an asset during this case.”
  • “Thank you for sharing how difficult it can be for you to get out of bed. Your determination that allowed you to get here despite everything else is a strength that will be important as we work together.”

practice self-reflection: analyze countertransference
Countertransference is your emotional response to the client or the client’s situation.17 Whether consciously or unconsciously, you react to clients, their personalities, their mannerisms, and their stories. Your reaction influences your interactions with clients. Through self-reflection, you can come to understand this response and how it affects your decision making, attitude, and work on cases.

These are questions you can explore on your own or with a trusted colleague to analyze countertransference and practice self-reflection:

  • What triggers your different responses (e.g., anger, tears, withdrawal, or joining)?
  • How do you react to client personalities and temperaments (e.g., in a quiet, rambling, skeptical, passive, needy, or detached manner)?
  • Of whom in your family or history does a client remind you? How do you react to that person you know? How do you react toward people who remind you of that person?18
  • What is your knee-jerk reaction to a client’s story? What leads you to that reaction? How much does that initial reaction influence how you litigate or interact with your client?
  • Can you consciously recognize your reactions to clients or client situations and decide how that will or will not influence your work on that case?

discover what the client wants and develop well-formed goals
Take time at the beginning of each case to hear the client and what the client wants.19 This advice may seem obvious, but, interviewing client after client, you can lapse into hearing the problem and assuming the solution the client wants. Even when the goal seems obvious, and even if ultimately your assumption is right, forming goals with, not for, the client helps define the relationship as a partnership with the client having responsibility for the outcome. Check in with the client throughout the case to see if the client’s goals are still what you are working for or if they have changed. Legal cases can be lengthy, and situations change, or clients understand the consequences of their decisions differently over time. You must make sure you continue to work toward an outcome the client actually wants.

Attorneys can inadvertently turn a client interview into a cross-examination and impede their ascertainment of the client’s desired goals. Instead consider a direct examination with open-ended questions to allow the client to express fully the desired legal outcome.

Due to legal training, attorneys can inadvertently turn a client interview into a cross-examination and impede their ascertainment of the client’s desired goals. Instead consider a direct examination with open-ended questions to allow the client to express fully the desired legal outcome. These questions can help you discover what the client wants and develop goals in partnership with the client:

  • “What do you want and expect from services?”
  • “What do you want to happen in relation to your current problem situation?”
  • “If you were to wake up tomorrow and your problem was solved while you were sleeping, what would be different that would let you know your problem was solved?” This type of “miracle question” is a conversation starter that aims to get the client’s focus off the problem and onto the solution.20

avoid blame and blaming
Avoid conversations that focus on who is to blame for events, situations, or actions.21 Instead of focusing on the past and who is at fault, direct your client to the present and future where you and the client can influence the outcome.

Engaging in a future orientation allows the client to take responsibility for what the client can do and encourages change and action. Both internalizing and externalizing blame can be paralyzing. If the problem is the client’s fault, how can the client fix it? If it is someone else’s fault, why should the client fix it? A continued focus on blame and blaming is counterproductive no matter who is at fault.

look for exceptions
Exceptions are the times “when the client’s problem could have occurred but did not.”22 An exception would be a month a client pays the rent when the client can never pay the rent. Exceptions are about strengths and thus excellent tools for empowering the client to be an active participant in the case. Exceptions help the client and you identify solutions that can be achieved and maintained. Exceptions can encourage and prepare clients to follow through with the tasks you need them to complete to move the case forward.

To replicate an exception or use the strengths identified to create an exception in another area of your client’s life, you want to explore what made an exception happen. Use exceptions to help figure out how the client can reach or sustain the legal goal. Use exceptions to encourage client completion of tasks to move the case forward. For example, your client Joe did part of an assignment for his case but not all of it. Instead of focusing on what he did not do, focus on what he did do. Explore how he was able to accomplish the part he did and thus unearth some of his strengths. You can talk to him about how he can use those strengths or turn them into new strengths to accomplish the rest of the task. Consider:

  • “Tell me about a time you …” (set a goal and met it, paid rent on time, had a pleasant visitation exchange, etc.).
  • “We planned for you to begin parenting classes by December. You called and set up an intake appointment. Tell me how you were able to accomplish this.”

use coping questions
You have likely encountered clients who cannot identify any exceptions. No matter what you say or do, such clients are consistently negative and have an “everything is terrible and always will be” attitude. Getting this type of client to identify strengths and think about solutions can be exceptionally hard. Coping questions are meant for just such a client.23 A coping question starts where the client is—everything is awful—and finds strengths in that the client keeps going in spite of how miserable everything is. For example:

  • “Wow, it sounds like things are really tough right now and you can’t see how it will get any better. How do you keep going?”
  • “With everything working against you, how did you make it into my office today?”
  • “I can hear that things are really bad right now. How did you manage to pick up the phone when I called?”

use scaling questions
Scaling questions are also good for clients who are consistently negative.24 Ask the client to rate the issue on a scale of 0 to 10 with 0 being absolutely awful and 10 being the best it could be. If the client says anything other than 0, you can then ask about what makes it better than 0. For example:

  • A client is telling you she cannot continue to do the visitation exchanges because they are always unbearable. You ask her to rate the most recent exchange, and she gives it a 1. You might say, “I can see this weekend’s exchange was a really bad experience for you. You gave it a 1 instead of a 0. What makes it a 1?”
  • You have a client who is persistently negative and says that things are so bad that she is unable to leave the house to search for housing, but you have negotiated an agreed 30-day move-out to avoid an eviction and loss of her housing voucher. You might ask her, “On a scale of 0 to 10, with 0 being the worst and 10 the best, what kind of day would you need to have to search for housing?” Then ask what number she would rate today. Explore with her the difference between today’s number and the number needed to search for housing. Explore what makes today better than a 0 and see if any of those strengths can be applied to move today’s number toward the one needed for her to look for housing.

what is better?
“What is better” questions are apt tools when you have already established a relationship with a client.25 Identify strengths and what is going well first before you get into what is wrong or going badly. “What is better” questions help focus your conversations on solutions instead of problems. Such questions help uncover exceptions that have happened since the last time you talked.

Clients tend to call their attorneys and immediately start talking about everything that has gone wrong since the last time they spoke, or attorneys begin the conversation by asking if there have been any problems. This pattern sets the precedent for all conversations to focus on problems and tells the client that you are most interested in what is wrong. This pattern highlights or reestablishes the power disparity between the attorney and the client—the client is consumed by problems; you are there to fix them.

When you and your client become experts on the solutions, you are able to engage in conversations about how to build on, modify, or scrap a solution and pick a new one. You will be able to work through cases more quickly because your focus is on the outcome and how to get over any hurdles instead of on the initial problem and the hurdles themselves.

Consider beginning a conversation with your client with:

  • “What is better since the last time we …” (met, spoke)?
  • “What is better with …” (visitation exchanges, school, getting to the doctor, looking for housing, etc.)?

The above tools are communication techniques that will help you practice empowerment-driven lawyering. They allow you to explore your relationship with the client further to identify and meet the client’s legal goals. Empowerment-driven legal practice for stakeholders can pave a pathway to quality, productive legal services with long-term benefits for clients and communities with economic and social barriers.

Hilda Bahena

Department Director

Catholic Charities Legal Assistance Department

651 W. Lake St.

Chicago, IL 60661

312.948.6983

Hbahena@catholiccharities.net

Andrya Soprych

Social Worker and Manager of Client Support Services

Cabrini Green Legal Aid

740 N. Milwaukee Ave.

Chicago, IL 60642

312.738.2452

andryasoprych@cgla.net

2 Secondary trauma, or vicarious trauma, is the negative psychological and emotional effect that lawyers feel as a result of their work with clients who have experienced traumas and that is caused by the need to delve into the specific details of those traumas while delivering legal services (see Andrew P. Levin, Secondary Trauma and Burnout in Attorneys: Effects of Work with Clients Who Are Victims of Domestic Violence and Abuse, American Bar Association Commission on Domestic Violence eNewsletter (Winter 2008); Donald C. Murray & Johnette M. Royer, Legal Profession Assistance Conference of the Canadian Bar Association, The Cost of Justice: A Desk Manual on Vicarious Trauma (2014)).

3 See Jean R. Sternlight & Jennifer Robbennolt, Good Lawyers Should Be Good Psychologists: Insights for Interviewing and Counseling Clients, in Relationship-Centered Lawyering: Social Science Theory for Transforming Legal Practice 320, 324 (Susan L. Brooks & Robert G. Madden eds., 2010).

4 Linda G. Mills, Affective Lawyering: The Emotional Dimensions of the Lawyer-Client Relation, in Practicing Therapeutic Jurisprudence 419, 431–32 (Dennis P. Stolle et al. eds., 2000).

5 Karen E. Gerdes, Empathy, Sympathy, and Pity: 21st-Century Definitions and Implications for Practice and Research, 37 Journal of Social Service Research 230 (2011).

6 Id. at 233.

7 Mills, supra note 4, at 421.

9 Ruth J. Parsons et al., Empowerment, Self-Determination, and Shared Decision-Making: A Model for Empowerment Practice, in Relationship-Centered Lawyering: Social Science Theory for Transforming Legal Practice 288, 291–92 (Susan L. Brooks & Robert G. Madden eds., 2010).

10 Id. at 291.

11 Cowger, supra note 1, at 264.

12 Silver, supra note 8, at 260–61.

14 See Gerdes, supra note 5, at 230 (“[W]hile thoughts create words, words also play a role in creating and directing thoughts—thoughts that, in turn, powerfully influence action.”).

15 See Cowger, supra note 1, at 264.

16 Id. at 264–65; De Jong & Miller, supra note 13, at 729.

17 Mills, supra note 4, at 431–32; Silver, supra note 8, at 261, 265, 296–98.

18 Silver, supra note 8, at 298.

19 Cowger, supra note 1, at 265; De Jong & Miller, supra note 13, at 730–31.

20 De Jong & Miller, supra note 13, at 731.

21 Cowger, supra note 1, at 266.

22 De Jong & Miller, supra note 13, at 731.

23 Id. at 733.

24 Id. at 732–33.

25 Id. at 733–34.

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