Dehumanisation

With these firms characterised as factories it can thus be understood that lawyers in this study offered a standardised service to their clients. Factories use routinised practices - along production lines - to process goods as swiftly as possible.

That wasn’t lawyering. That was a numbers game. The point becomes to get through as many clients as quickly as I can. That’s how it is now. Access to justice? There is no access to justice! There’s no time for access to justice - you’re just unable to provide any level of service to the clients. All you focus on is working through it as quickly as possible. The client loses out in the need to get through the list.

(Leland, solicitor, Radford Hope, IC)

The ‘numbers game’ meant that providing continuous representation and suffi­cient time to each client was not regarded as an option; most lawyers sought to clear client lists with minimum effort. As a result, these lawyers offered a depersonalised service. This approach was antithetical to any notion ofclient-centeredness, thereon contradicting lawyer claims as expressed in the formal interviews. Moreover, it might be considered to have challenged the professional code of conduct (Lord Chancellor’s Department, 2001: 8) that warns against ‘excessive caseloads’, insist­ing that if a lawyer ‘considers that the acceptance of any further instructions is rea­sonably likely to lead to inadequate representation of existing clients, he or she shall decline to accept further instructions’. The ideal approach, which lawyers and their professional bodies have seemed keen to perpetuate, at least at the level of rhetoric, locates the interests of the client at the forefront (Mungham and Thomas, 1983: 147-49).

The client may be in a variety of emotional states which will require an approach that is both empathetic and inspires confidence. Empathy may be demonstrated by being will­ing to listen to what the client has to say even if it does not appear directly relevant to the issues... allow the client the time and the opportunity to express how and what they are feeling.

Perhaps the most expansive on this topic has been Lawyers as Counsellors by Binder et al (2004). In this text, they urge lawyers to focus on the client as a holistic entity and not view the legal problem in isolation. From this perspective, the lawyer-client relationship should be conceptualised as counselling; lawyers need to be willing to listen to clients’ concerns, but also to move beyond that. Showing sensitivity and warmth, lawyers should make an effort to understand life from the client’s perspec­tive. The counselling relationship places great value on ‘mutualism’ (Burnard, 2005: 130-31). This concept of mutualism draws on Buber (2008: 6-12) and his notion of ‘I-Thou’ - the manner in which a bond develops between two individuals as they come to know each other on a reasonably equal and, thereon, intimate level. Mutualism represents a closeness that can only be achieved when experiences are pooled, as the counsellor shares their life with the client; working from Jourard's (1971: 14) supposition that, ‘disclosure invites or begets disclosure'. The idea of a common humanity, coming together, seems crucial.

One need not go that far, though, to recognise the importance of allowing the time and space for connections to develop between individuals; without it their relationship would likely lack rapport, hindering communication and restricting understanding (Tickle-Dengen and Rosenthal, 1990: 286-87). This perspective has been presented as the ‘contact hypothesis', which suggests that interpersonal con­tact is the only way to construct successful, stable, human relationships (Allport, 1979: 261-82).

Both Tuitt (2005) and Scheffer (2007) also see clients being transformed into files; however, they judge this situation quite differently, viewing it as a positive act of client-centeredness. The file is identified as a form of liberation; recording what clients said gives them a voice, thus treating them with respect. As such, Tuitt (2005: 122) and Scheffer (2007: 60) set themselves up against an apparently mainstream, ‘standard indictment' of the legal profession, one that Tuitt (2005: 122) suggests is critical of the ‘ “clinical” treatment of clients, the tendency for professionals to treat clients like hypothetical problems, like bits of memoranda or like fee notes'. By this line, Scheffer (2007: 60) claims that many academics believe that the ‘file-bias degrades the client to the file-appendix... all his fears, worries experiences and expertise is reduced to an extension of the file (and not the other way round)'.

Scant evidence of this conventional position is offered, though it is unreservedly dismissed by both as somewhat simplistic and unrefined. Rather, they offer a deeply theoretical take, incorporating insight on areas such as critical theory, constructiv­ism and semeiotics. This creates the absurd - near incomprehensible - situation whereby lawyers are urged to abandon Habermassian inter-subjective universal pragmatics, with their minimalist celebration of direct encounters, for a Latourian distributed agency that conceptualises files as constitutive participants in legal discourse.

In both accounts, the implication was that to disagree with this formulation was to offer oneself up as a Luddite. However, in the light of the research conducted for this study, such convoluted aspirations seem wholly unconvincing. It is ridiculous to suppose that lawyers were considering these dense and obtuse philosophical debates as they dealt with clients. The optimism that these authors find in the con­jecture of hypothetical argument appears detached from the practical reality of criminal defence, which it can only serve to obfuscate. As such, I reject their treat­ment of the file and, rather, must insist that it be seen as a problematic feature of lawyers' behaviour. The manner in which clients were transformed into their files was disrespectful, appearing to restrict their voice. It acted to deny their humanity.

A similar process is documented by Goffman (1991), within certain closed com­munities such as mental institutions, monasteries and boarding schools. With the exception of those already in prisons, lawyers' clients did not find themselves in the ‘total institutions' defined by Goffman (1991: 13-115); however, parallels can be made. For example, Goffman (1991: 18-20) identified a definitive split between a small staff and a managed mass, the former conceiving of the latter largely in stereo­types and, thereon, feeling superior. Further, social mobility between the two strata was restricted with the social distance formally prescribed. Talk across this divide worked to serve the purpose of communicating information between the group below and the higher levels to which the staff, in turn, ceded authority. This situa­tion provided staff with much control over information pertaining to the lives of those on the bottom, details that staff need only disclose selectively.

Dehumanisation is identified as intrinsic to such institutions, necessary to main­tain the predictability of order, systematically disseminated and propagated (Goffman, 1991: 24-40).

The clients in this research were no more than the elements of their story which lawyers could use in going about their work; the constituent elements of a speech of mitigation, bail application or evidence-in-chief. Anything more that clients said was deemed superfluous, as evident in the following examples from both types of firm:

[Lawyer One] Oh, he's disgusting.

[Lawyer Two] He's quite naive, isn't he?

[Lawyer One] He's a whinger. Whinge, whinge, whinge. Always asking me questions, or moaning about his life. I don't care. Be quiet!

(Audrey, solicitor, and Ed, senior partner, Swining MacSage, OR)

I always tell them to remember the advice I gave them, I don't repeat the advice. Especially if they start to blab, and go on and on. I just want to get out of there.

(Laura, solicitor, Swining MacSage, IC) Look, I'm in control today. I don't care what the last one did. That's them, this is me. You tell me what you want to know, then I will decide.

(Teresa, solicitor, Radcliffe and Musk, OR - to a client)

However, the sheer insidiousness of this dehumanisation is, perhaps, best appreci­ated by a particularly evocative example.

A solicitor, Bob, was in the Magistrates' Court with a list of nine clients. He was also covering the Youth Court, where he had four clients. Early that morning, he saw a client in the Youth Court; a 14-year-old boy, Ricky, appearing for a breach of a supervision order after failing to attend two meetings with his youth worker. Ricky's conviction had been for a non-dwelling burglary; his first offence.

Bob greeted the boy's mother, and led the four of us into an interview room. Mother and son sat down, Bob introduced himself and then me, as his ‘colleague'. Before I could interject and explain that I was conducting research, Bob told them that I would be taking their ‘instructions'. I looked at Bob in surprise, but he quickly tore two pieces of paper from his pad and told me:

You'll be alright. Try and fill a couple of sides, take about half an hour, and then come down and find me when you're done. I'll be getting on with this list.

(Bob, solicitor, Radford Hope, IC)

Bob promptly left the room.

I did not feel that I had the chance to object, and remain uncertain as to what course I should have followed. I explained to the mother that I was a student, not affiliated with the firm and with neither legal experience nor training. She accepted this, but seemed keen to tell me their story regardless. I set about interviewing them, struggling to think of questions but making enough to fill the paper. This took close to half an hour and I left, assuring them that I would find out what was going on from Bob.

I went to the Magistrates' Court, where Bob was working through his list. He took the paper, but made no mention of Ricky's case. Throughout the morning, Bob repeatedly attempted to get his cases heard in the Youth Court, explaining that:

I want to get these out of the way quickly. Better things to do [at the Magistrates' Court].

(Bob, solicitor, Radford Hope, IC)

However, the Youth Court was busy and Bob was left frustrated.

Bob had to leave the court at lunchtime. So, a little after midday, he made a call to the office, stating that he needed to be ‘relieved'. They duly sent Harold, part­ner, to the court. He arrived 20 minutes before the one o'clock break and told Bob that he would take his Youth Court work from him. I accompanied Harold upstairs, informing him that I had interviewed Ricky, pointing him out in the waiting area. Harold greeted him and his mother and the extent of their conversation was:

Hi, my name's Harold. I’ll be dealing with your case now. I have all the information here. Hopefully get you on before lunch. Okay?

(Harold, partner, Radford Hope, OR - the client’s mother nodded as Harold walked past)

Harold attempted to persuade the court usher to put his cases on, but there was no time and the bench rose. We went to the advocates’ room, where solicitors took their lunch and chatted. At around half past one, senior partner James came across to the Magistrates’ Court and took Harold aside into an interview room to explain that he had taken the rest of Bob’s cases. So, Harold and James set their files out on a table and began the process of splitting the cases between them. This was achieved by ref­erence to which courtrooms the cases were listed in and so, roughly, what type of hearings they entailed. As part of this, James offered to take the Youth Court cases:

[Lawyer One] So. ifyou’re going to take those, why don’t I take this Youth Court stuff off you?

[Lawyer Two] Okay.

[Lawyer One] Is there much there?

[Lawyer Two] Oh, nothing much.

[Lawyer One] Have you seen the clients?

[Lawyer Two] Yes, before lunch.

[Lawyer One] Well I’ll just say hello then.

(James, senior partner, and Harold, partner, Radford Hope, IC)

I elected to stay with James. I explained about Ricky and that I was the only one who had seen him, and pointed out that the notes in the file were my own. James had not met me previously, so I reminded him that I didn’t know what I was doing. He looked over the notes and didn’t pass comment. By the time he had read through all three of the files he had taken from Harold, it was approaching two o’clock at which time the court was due to restart. So James went out to the waiting area, and intro­duced himself to the clients as I pointed them out. To Ricky and his mother he simply said:

Hi, I’m James. I’m the senior partner. I’ll be taking your case, you’ll be on soon. Sorry for the delay.

(James, senior partner, Radford Hope, OR)

James duly got the cases on shortly after the bench returned. Ricky’s case was adjourned.

The following month, Ricky was back in court for the next hearing and he was dealt with by another solicitor, Norma. On meeting the client, the boy’s mother had greeted me with some enthusiasm, and confused Norma by addressing me and not her. I explained to Norma that I had seen Ricky previously and, also, that I had taken the notes. Norma told me that she hadn’t recognised the writing when she looked at the file that morning. That was the final hearing for Ricky; he was found to be in breach of his supervision order which was consequently extended.

Over the course of Ricky's two hearings, then, he saw four different lawyers (a fifth solicitor, Catherine, had apparently dealt with his original sentencing) and had his instructions taken by a research student. Bob had known that I was new and had no legal background, as he had been fastidious in getting me to explain my biography to him on the way to court. Despite this, he left me to take notes from this boy. Harold and James had known that the boy had only been seen by me, yet they still did not deem it necessary to talk to him themselves. My amateurish questioning constituted this boy's file as far as the breach was concerned, and had been accepted by Norma.

I was racked with guilt to have become embroiled in these events. This might not have been the most important of cases nor complicated of hearings but, all the same, it involved a confused client implicated within the criminal justice system and totally reliant upon their lawyer. And the lawyers just passed him around as if he didn't matter at all. That any client could be treated in this way is reprehensible, and that it could happen to a child is, in my view, totally unacceptable. The youth courts are characterised, by Bottoms (2002: 217-18), as supposedly more humani­tarian than those of adults, concerned with helping defendants rather than punish­ing them. Lawyers have a somewhat more nuanced - and heightened - role to perform within them: ensuring that justice is done both by protecting the welfare of this most vulnerable class and concomitantly facilitating the smooth running of the court (Williamson, 1980: 40-43). The lawyers' role is premised upon an ability to communicate with a potentially awkward client - a more intense relationship than with an adult defendant.

However, even Ricky, a 14-year-old child, was treated as a file to be passed around as if it were of no consequence. What this example expressed was degradation to the level of an inanimate object. Dehumanisation is Montagu and Matson's (1983: xi) ‘fifth horseman of the apocalypse', capable of inestimable levels of damage. When people become things, they become dispensable and any action towards them can be justified. This dehumanisation, then, presents a self-perpetuating cycle as, once clients are no longer individuals, it becomes ever more natural to continue to treat them so. Even a child's humanity is lost.