Justice should not only be done,
but should manifestly and undoubtedly be seen to be done.
Lord Hewart C.J.
R. v. Sussex Justices, Ex parte McCarthy,  1 K.B. 256
But why can't justice also be felt, in the process of being done? Is there room for affective advocacy in modern litigation?
Traditional advocacy focuses on effective justice – on outcomes, results, and rulings. The outcomes of litigation are of course tremendously important in shaping the life of law. But as Canadian courts and communities continue to be ground under the weight of backlogs and worsening access to justice crisis, modern advocates need to give more care and attention to our clients' experience of the justice "process". Process and outcome are, after all, echoes of one another just as form and function, and so justice needs to be more than seen to be done, it needs to be felt to be done by those encountering it.
Wading through Canada's justice system as a participant is often confounding, alienating, and dehumanizing – and not just because of the costs, delays, and adverse outcomes. That "litigation is no tea party" reflects more than a self-serving call to arms for adversarial practice. Encounters with the justice system force participants to translate (and often dislocate) their lived experiences into the complex, limiting, and evasive categories and terms recognized at/as law. These narrative dispossessions don't just occur in damning cross-examinations or scathing rebukes of credibility. They're inherent from the outset of the process: we are forced to fight over our irreducible narrative lives within legal frameworks that we never fully understand and that we have only notionally participated in erecting. The result of encountering this justice "process" – even for the "winners" – is often an experience of defacement, of having been misplaced or misunderstood. As advocates, our carriage of others' stories brings with it a responsibility to be conscientious about the impacts of this process.
So what does it mean to practice affective advocacy? To start, it has to mean more than mere empathy. In the opening of Writing & Righting: Literature in the Age of Human Rights (Oxford UP, 2021), Lyndsey Stonebridge warns against the risk of "[a] more modest literary humanitarianism" that too often creeps into discourse whenever the law tries to look outside itself for ways to overcome its own limits. Lawyers can (and should) be able to do more than just feel bad about the negative impacts of our justice process. Affective advocacy means putting more care and attention into clients' experience of these processes and thinking critically about our own role in shaping that experience. It means proactively trying to mitigate the negative affects of encountering the law, not just working to prevent its negative outcomes.
While lists like this invariably apply variably to different practices, cases, or clients, these elements offer a starting point for striving towards more affective advocacy:
- Listening actively and deeply. One of the
simplest things we can do as affective advocates is listen better.
We need to leave more room for our clients' stories to breathe
and be heard, without letting our legal calculus curtail every
interaction. Active listening affords dignity and respect to our
clients' lived experiences and can help counteract the sense of
dislocation they feel when they have to translate their stories
into reductive legal frameworks. Investing the energy to ensure
clients feel heard at the outset can soften the inevitable blow
they feel when telling their story within the constrained,
strategic, and combative arenas of our adversarial system.
- Cultural competency and trauma-informed
training. Our ability to listen and communicate
effectively depends on cultural competency. Just as our clients
carry irreducible lived experiences and histories, so do we as
advocates; and where those histories differ (they always do), we
have an obligation to seek out education and training to better
understand our clients on their own terms. One aspect of this
competency applicable to any practice is trauma-informed training.
Even in areas of law not traditionally associated with traumatic
experience, any encounter with the justice system will be highly
stressful and will compound pre-existing personal stressors and
trauma. That's why it's essential to proactively seek out
education on trauma and mental health (Myrna McCallum's The Trauma-Informed Lawyer podcast,
which offers a wealth of insight, is a great place to start).
- Setting boundaries and expectations. Taking
care to articulate the limits of our role and what we can offer is
an essential complement to listening more deeply. The more we seek
to affirm clients' broader and multi-faceted concerns, the more
important it becomes to identify clearly what aspects of those
problems we as legal counsel can (and cannot) tackle. No legal
problem is only a legal problem. While lawyers can listen
to and treat clients' stories with respect and dignity, lawyers
are not therapists, financial advisors, or any other form of
professional counsellor. In addition to setting boundaries, we
should also stay informed about other available resources outside
of our professional scope so that we can help clients find the
complementary support they may need alongside legal services.
- Explain the "why". Procedural
developments and strategic decisions can contribute significantly
to a client's alienation from their case. For clients, these
developments are often narrow, obtuse, and seemingly irrelevant to
the underlying story they are trying to tell. Too often we only
explain the "what" of these developments and (again) just
focus on getting the desired outcome. Explaining the why and taking
the time to situate these developments within an overarching
strategy can ease our clients' sense that these interim
diversions are nothing more than roadblocks. Reminding them that we
hear their whole story and explaining how and why only certain
parts fit into a given legal frame can help reduce that sense of
alienation from the process. This big-picture transparency is
especially important when preparing clients for giving evidence,
since they will inevitably have to be told that certain parts of
their story are irrelevant or unhelpful to the legal theory
ultimately being put forward.
- Read diverse literature. As Stonebridge demonstrates throughout her work, literature has far more to teach than mere feeling (though it certainly does that too). Storytelling is as complex and technical an art as any other. As caretakers of others' narratives, advocates owe it to their clients to study that craft. One of the basic functions of literature is to challenge us in the act of reading; fiction and poetry thrive on the diversity and complexity of lived experience as imperfectly reflected in living textual objects. Understanding how to navigate those fraught ecosystems of meaning allows us to more persuasively weave our clients' stories into the textual life of law, while also being more respectful conveyors of those stories. Studying literature not only makes us more affective advocates, it also makes us more effective ones.
All of this, of course, takes time. And in our modern era of incrementalized billing and systemic under-resourcing, more time is a vanishing horizon. But within a sea of subject-matter CLE, case-briefs, primers, and years-in-review, advocates need to start treating the affective side of their work as no less substantive and essential a competency.The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.