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“Lawyers have killed off more groups than ever would have died if the lawyers had never showed up. . .The lawyers want to advocate for others and do not understand the goal
of giving a people a sense of their own power. Traditional lawyer advocacy creates dependency and not interdependency. With most lawyers there is no leadership development. . .They don't
understand community, they don't understand organizing, they don't understand leadership development.”1
Community Lawyering at Brigham Young University Law School
provides law students with a clinical opportunity to practice collaborative justice among low-income residents. By “collaborative justice,” I am referring to the process of equipping and
empowering everyday people, especially the poor, to act in concert as their own lawyers, pursuing legal problem solving at the grassroots level on terms most meaningful to their
circumstances and relationships.2 The thesis of Community Lawyering is that the quest for equal justice involves so much more than increasing the supply of pro bono legal services. The strategy of Community Lawyering is to lessen the growing demand for legal services by teaching the community what more it can do for itself, capitalizing on its own informal problem-solving capabilities as much as possible before turning to attorneys.
This article tells the story of Community Lawyering in action at the Boulders Apartments (Boulders) located in Provo, Utah. Boulders houses approximately 1400 residents whose
yearly income ranges from the working poor to the poorest of the poor of Utah County. A Section 42 Housing and Urban Development housing project, Boulders consists of 388 units spread out
on 18 acres. Approximately half of the residents receive public assistance and/or are under the care of Wasatch Mental Health, Utah State Workforce Services, Utah County Probation and
Parole, and other service agencies and organizations. The multicultural, multinational, multilingual, multi-religious tenants are a microcosm of the most disadvantaged communities
throughout Utah, especially those dealing with rapidly changing demographics. The residents face many legal and extra-legal issues in a wide variety of areas: domestic relations, housing,
police relations, immigration, K-12 education, health care, employment, disability, cross-cultural communication, and so on.
Early on in the 2003-2004 academic year, while law
students and I were interviewing Boulders residents and working with them to form grassroots advocacy groups that would address a range of legal and extra-legal concerns, the residents
started grumbling that there were too few public options for transportation to needed services and grocery stores.3 Then matters went from bad to worse: the bus company announced that the bus line that made a stop fairly close to their residential complex was being removed for lack of ridership.
As an impending negotiation with the bus company, we saw several possibilities. Given that there are a fixed number of buses and therefore a fixed number of bus routes, we figured
that we could:
a) Negotiate through demands and other hard positional tactics, shaming the bus company as a greedy enterprise that is failing to perform its role as a responsible
corporate citizen.4 Further, speaking on behalf of Boulders residents, we could make an extreme - even deceptive 5 - claim that we are overdue for a bigger slice of the fixed pie, insisting not only that the present bus line be left where it is but also (to provide some wiggle room for compromise) that it improve bus service by allocating even more of its limited commodity - “or else” (using as leverage6 that legal action is being considered against the bus company, municipality, and any other party that might cringe and fold when threatened with a lawsuit or negative publicity);
b) Avoid positional bargaining and negotiate “on the merits” as problem solvers following the teachings of the Harvard Project on Negotiation,7 using the opportunity as representatives of Boulders residents to inform the bus company about residents' concerns8 and bus riding habits; to learn more about the bus company's interests, data on ridership,9 and history with poor communities; and to build a new relationship with the bus company not only to achieve the immediate or short-term goal of maintaining or improving bus service, but also to brainstorm how there can be greater substantive and relational gain for all parties;
c) Negotiate the issue at hand as prototypical of countless challenges that make up the larger problem - i.e., the culture of poverty - by inviting representatives of community
policing, community nursing, other community agencies (e.g., the school district) and other local stakeholders to join the negotiation under b) to see where similarly situated populations
in the City of Provo could also be served and related issues could also be addressed as part of the original “bus line” concern, perhaps adding new conditions or dimensions for packaging
or bundling values, setting out a longer timeline with forecasted contingencies, shared risk covenants, and other mutually accountable provisions; or
d) Equip10 impoverished residents themselves to do at least b), preferably c), in the form of grassroots advocacy groups,11 structuring opportunities for them to radically transform their self-perception from “have-nots” to “haves,” spreading their message to neighbors and turning them into organized resident committees, following the pattern set by the original “bus line” committee, reaching out to and making presentations to coalitions of grassroots organizations, at local college courses in sociology, mediation, family services, and the like, at city council meetings and before corporate officials.
If you guessed that we picked d), you sense already the ambitious spirit of Community Lawyering.12 While we take the side of the underdog, we resist the serious temptation to play the hero. We refuse to set up social controversies as win-lose confrontations, fumbling and stumbling awkwardly to an isolated agreement whatever the cost to ongoing relationships. Instead, we teach ourselves, and then others, how to turn a setback in one area into multiple opportunities to bargain over the infrastructure of public roles and resource networks in many areas. Rather than conclude talks prematurely, once a fair settlement is reached with regard to one specific controversy, Community Lawyering continues to negotiate new ways of seeing, understanding, and building healthier communities - e.g., looking for internships opportunities for those who are poor and lack proper educational credentials or English proficiency but are possessed of natural aptitude and valuable experience; or inviting grassroots leaders to practice and improve their public speaking by giving talks to audiences unaccustomed to being on the listening end; or asking how an agreement might be of wider benefit to other community advocacy groups; or scheduling a series of joint presentations to interested third parties; and other such novel arrangements and timelines that extend a “hand-up” to those in need.
We do this by focusing our attention on the untapped promise of the poor themselves to assert themselves as problem solvers.13 We prove to those with little or no access to justice that they hold the key to that door through joint-gain negotiation among themselves and with community agencies and public officials, not only with those who are already involved but other interested stakeholders as well.14 As much as experts - e.g., pro bono attorneys, public interest lawyers and ADR specialists - try to help by opening that door with respect to legal matters addressed in isolation from the larger context of privation, we impress upon those who live “24/7” with all the interrelated hardships of poverty that they must learn what more they can do for themselves to tackle the full range of their challenges.15 To this end, Community Lawyering acts as a catalyst for Boulders residents to find their group voice in public settings, making presentations on who they are, what struggles they face living in poverty, and how they would propose to take new steps and tell new stories.16
How does community lawyering work alongside indigent populations to make this happen? What bargaining methods does it offer to the poor in order to contest particular
decisions in such a way that they use the moment to stretch the boundaries of politically constructed persona of those in power (sometimes even switching roles)? How does integrative
bargaining empower the destitute to come together in novel organizing patterns, challenging established organizing principles of poverty?
In the above noted scenario involving the
threatened removal of a bus route, for example, Community Lawyering helped Boulders residents get to know their neighbors by staging a huge festival17 followed by weekly potlucks at the on-site community resource center.18 Once residents formed a transportation advocacy committee,19 we invited to the next potluck the bus company representative who oversees the planning of bus routes. He was favorably impressed with the residents' presentation, particularly their initiative in arranging for a college sociology class to survey Boulders residents to determine which destinations were most popular and when the residents currently preferred to travel by bus to those destinations. Moreover, the residents reported, their collaboration had also tapped a college mediation class and a college political science class to assist in the larger conversation among Boulders residents on how transportation is in turn connected with a host of other resident concerns - employment opportunities, medical care, schooling, etc.20 Thus, the residents made a compelling case that the bus company's decision to sustain or remove a bus route should not be made hastily on economic considerations alone because changes in the routes would have multiple consequences for poor residents.
The bus official responded by telling the crowd that the existing line would not be moved after all and that he promised to appoint a member of his staff to join the growing
number of community resources collaborating to improve bus (and shuttle) service in that area. Indeed, in furtherance of the collaborative effort, the bus company later decided that it
would take the survey instrument designed by the college sociology class for the residents and put their own bus logo and contact information on it, thereby turning the survey into a
joint effort at improving customer relations. The residents in turn accepted an unfamiliar assignment, namely as “deputies” of the bus company, authorized to speak in the name of the bus
company while conducting the survey. Taking an extraordinary step, the bus company increased the likelihood of resident cooperation with the survey by preparing a customized flyer
displaying useful routes, transfer points, and destinations, all from the reference point of Boulders Apartments, and by pledging thousands of dollars in bus tokens for the survey takers
to hand out.21
As can be appreciated from this example of Community Lawyering in action, preparing low-income residents for these kinds of presentations and longer-term
commitments requires many individual and group negotiations with many sets of people, starting among the law students themselves.22 Thus, collaborative justice is introduced and practiced among various audiences in an expanding, self-replicating pattern: among the law students and myself as we question the duties and objectives of traditional lawyering among the poor and consider the role of justice worker (a different calling); among law students and the poor as they challenge each other to move beyond consultation between an “expert” and “client” (a different conversation); and among impoverished communities and the larger society as together we form problem-solving partnerships built on mutual respect and responsibility (a different commitment).23
Footnotes
1. William P. Quigley, Reflections of Community Organizers: Lawyering for Empowerment of Community Organizations, 21 Ohio N. U. L. Rev. 455, 455-79 (1995): (reporting on
observations of community organizers on the role of lawyers, including these by Ron Chisom).
2.
These folks are, of course, prohibited from the unauthorized practice of law. But they are more than able to practice justice without a license. I am asked from time to time, “So is it necessary to acquire a formal legal education to practice community lawyering?” The answer is yes and no. An attorney brings essential analytical and interactive skills to bear. Legal education equips us as lawyers to spot impending legal problems and act alongside community partners to prevent them or at least to keep them more manageable. Also, nothing grabs the attention of various parties in American society more than having an attorney call them to arrange a meeting and make them aware that legal experts form part of the assembly and, therefore, a lawsuit could be filed. But the answer is also “no” insofar as collaboration, by definition, integrates the best interests of laypeople, including the very poor, relegating the legal system to a back-up, secondary option behind negotiation. For a complete discussion of my Community Lawyering course, see David Dominguez, Redemptive
Lawyering: The First (and Missing) Half of Legal Education and Law Practice, 37 Cal. West.L. Rev. 27 (2000); and Getting Beyond Yes to Collaborative Justice: The Role of
Negotiation in Community Lawyering (forthcoming).
3.
The Boulders manager reported to us that each week there were between 20 and 25 shopping carts strewn about the grounds. Since the only bus route that was available to take the residents to the grocery store stopped three blocks away, required transfers and was very roundabout in getting to the grocery store, the residents walked to the nearest supermarket, a little over a mile away, and then took it upon themselves to “borrow” shopping carts to transport their grocery bags back home.
4.
Saul D. Alinsky, Rules for Radicals: A Pragmatic Primer for Realistic Radicals 129, 139(1971) (“In a fight almost anything goes. . .[Attend the enemy's concert after being] fed nothing but baked beans, and lots of them.”
5. In Gerald B. Wetlaufer, The Ethics of Lying in Negotiation, 75 Iowa L. Rev. 1219 (1990), the author quotes James J. White, “To conceal one's true position, to mislead an opponent about one's true settling point, is the essence of negotiation.” In the same vein, see Charles B. Craver, Negotiation
Ethics: How to Be Deceptive Without Being Dishonest/How to Be Assertive Without Being Offensive, 38 S. Tex. L.. Rev. 713, 734 (1997): “I suggest that the fundamental question is not whether legal negotiators may use misrepresentations to further client interests, but when and about what they may permissibly dissemble. . .[N]egotiation interactions involve a deceptive process in which a certain amount of 'puffing' and 'embellishment' is expected. . .Attorneys who believe that no prevarication is ever proper during bargaining encounters place themselves and their clients at a distinct disadvantage, since they permit their less candid opponents to obtain settlements that transcend the terms to which they are objectively entitled. "
6. G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People 89-114 (1999) (once fairness arguments fail, achieve your goals a la Donald Trump by flexing the muscle that can make their life worse off).
7. See, e.g., Robert H. Mnookin, Beyond Winning: Negotiating to Create Value in Deals and Disputes (2000).
8.
It may startle the reader to learn that some Boulders residents fear riding the bus because they have gotten lost along the bus route, have discovered too late that they boarded the wrong bus (especially when transferring from one bus to another), or have frozen up when trying to speak to the driver or when sorting out the correct amount of money to pay the fare.
9.
Not surprisingly, there were at least two sides to this story. The bus company later produced data on daily ridership to prove that, pursuant to the standards of the industry, it was not economical to keep the route where it was. The residents, on the other hand, reported on the results of interviews and group meetings they (and we) conducted: the route in question was impractical since it required two transfers (and nearly two hours) to get to a grocery store. The residents believed that the route in question was designed to accommodate college students and mall shoppers, not the transportation needs of Boulders residents.
10. By “equip” I am referring to a 4-step process that is continually looping back: explain the skill in words, demonstrate it while the resident observes, let the resident
take a turn while we watch, evaluate and explain once again, repeating the cycle. Even as residents step forward and assume more responsibility for the negotiation, the students and I
continue to actively negotiate with other residents and institutional representatives. Dale Minami, Asian Law Caucus: Experiment in an Alternative, 3 Amerasia Journal 28,38-39 (1975) “. .[T]he Caucus strives to create an informed and educated community empowered to assert their rights and to participate actively in American society. Michael Diamond, Community
Lawyering: Revisiting the Old Neighborhood, 32 Col.Hum.Rts.L.Rev. 67, 109 (2000): “The activist lawyer not only interacts with the client on a non-hierarchical basis, but also
participates with the client in the planning and implementation of strategies that are designed to build power for the client and allow the client to be a repeat player at the political
bargaining table.” Zenobia Lai, Andrew Leong & Chi Chi Wu, The Lessons of the Parcel C Struggle: Reflections on Community Lawyering, 6 UCLA Asian Pac. Am. L. J. 1 (2000)
(Lawyers can help achieve goals of the community but should not be the ones deciding what those goals are in the first instance.)
11. Paul Harris, The San Francisco Community Law Collective, 7 Law & Policy 19, 20-22 (1985): “Our goal was to build the power of community groups. The preferred tactics were working as house counsel to organizations and advising them how to avoid the law and, where appropriate, how to use it.. . .[W]e attempted to help people recognize their own potential and stood behind them when they exercised that power. In this way the human being goes through a transformation-is empowered-and does not look to the legal system as a savior.”
12. Robert M. Ackerman, Disputing Together: Conflict Resolution and the Search for Community, 18 Ohio St. J. on Disp Res. 27, 30 (2002): “In some instances, collaborative, consensus-building processes have at their core the idea of building community support for public policy initiatives or community projects.”
13. In Social Justice: Professionals, Communities, and Law (Martha R. Mahoney. John O. Calmore, Stephanie M. Wildman, ed.s 2003), the excellent casebook that I assigned for my 2003-2004 Community Lawyering class, the editors point out: “Movements for transformation take place through the lives and work of people and communities for whom lawyers are at most a small part of the story. Therefore, an important question for lawyers working on social justice issues is how to carry out their professional work in ways that empower the people whose lives are involved. . .Is the goal of legal work for social justice to win recognition of rights, such as passing a statute against discrimination, or is the ultimate goal a change in culture and practice in a society that brings greater equality for all?” Id. at 763
14. Sharon K. Hom & Eric K. Yamamoto, Collective Memory, History, and Social Justice, 47 UCLA L. Rev. 1747, 1756-59 (2000): “By contrast, groups seeking social justice tend to define injustice more broadly. To fuel political movements, they expand the law's narrow framing of injustice and focus on historical facts to more fully portray what happened and why it was wrong. In this way, history becomes a catalyst for mass mobilization and collective action aimed at policymakers, bureaucrats, and the American conscience.”
15. I take to heart the criticism that we are collaborating with legally unrepresented poor people - albeit on very friendly terms - and altering their opportunity to
understand and pursue their legal rights against an adversary. Paul Brest & Linda Hamilton Krieger, Lawyers as Problem Solvers, 72 Temp. L. Rev. 811, 831-32 (1999): “The lawyer who views herself as 'counsel to the situation,' rather than her clients, may deprive the clients of the unqualified commitment they have reason to expect.” Russell Engler, Out
of Sight and Out of Line: The Need for Regulation of Lawyers' Negotiations with Unrepresented Poor Persons, 85 Calif. L. Rev. 79 (1997). As explained infra, the motivation
behind our effort is two-fold: first, to provide an alternative to waiting patiently until enough lawyers volunteer to help folks like the Boulders residents; and, secondly, to offer a
working critique of the view that the legal system provides good recourse in the first instance.
16. See Thomas B. Stoddard, Bleeding Heart: Reflections on Using the Law to Make Social Change, 72 N.Y.U. L. Rev. 967 (1997) (arguing that advocates for social justice need to collaborate on a “cultural-shift” and not simply settle for a rule change. To secure a culture-shift, the grassroots collaboration must appeal to the widest possible audience)
17. We brought together many organizations, including America's Promise and its “five promises,” to stage the festival at Boulders in November 2002. The theme was “for the
children/para los ni–os.” Although there are 1400 Boulder residents, a gathering of somewhere between 1,500 and 2,000 folks joined together at Boulders for an unprecedented outpouring of
resident goodwill. It would be an understatement to report that the city was pleasantly surprised. Newspaper accounts before the event quoted longtime neighbors who uniformly cast a
dismal outlook, saying nothing good could come from the folks at Boulders - e.g., “This is a waste of time. These people want to live that way.” See, Amy K. Stewart, Bridging
the Gap Between Neighbors, Low-Income Tenants, Daily Herald A1 (October 27, 2002) When Boulders residents shocked everyone by coming outside and joining the fun, the city and press were amazed, stirring optimism that much more was possible and in the offing. See Justin Hill, Provo Setting Up Police Substation in Apartment Complex, Daily Herald A1,A4 (April 16, 2003); Akea Gibby and Kathy Hyde, Best Practices Story, America's Promise Newsletter (March 5, 2003), Jesse Hyde, Provo
Apartments Losing Their Complex, Deseret News B1, B6 (May 5, 2003)
18. The Boulders Community Resource Center was itself a result of integrative negotiation among
Boulders residents and Boulders management pursuant to training and assistance provided by Community Lawyering during the 2002-2003 school year. A long story made very short is that
residents, upon being introduced to each other, quickly discovered a common, even compelling, shared interest in public safety. Once learning to present themselves as a group, they linked
their common cause for improved police services and traded on differences with the police, resulting in a new onsite police substation. The substation underwent metamorphosis pursuant to
resident input and participation, emerging as a community resource center offering, among other activities and services, weekly classes in English-for-Speakers-of-Other-Languages, medical
screenings, and a summer sports league for Boulders kids.
19. This committee was composed of residents and representatives from community service organizations.
20. The relationship between college students and the residents, instigated by presentations by Community Lawyering students, has produced its own revelations. The law students and
undergraduates are thrilled to be involved in field work that makes their education more meaningful while residents are equally delighted that their grassroots advocacy could be so
beneficial to higher education. Each group is enjoying the discovery of mutual-need.
21. The Transportation Committee has served as a prototype, motivating other Boulders
resident committees to broaden their collaboration on such pressing matters as neighborhood watch, family mediation services, afterschool programs, outreach to immigrants, and other
concerns. In fact, for many Boulder residents the presentation to the bus company was a turning point in participating in grassroots advocacy. They saw what a difference it made for them
to come together and speak at a public meeting. They witnessed a range of resident voices offering excellent ideas (substantive gain) and speaking constructively, building on each other's
comments (process gains). After the potluck, their evaluations made plain to us how excited they are becoming at the prospect of contributing their viewpoints at upcoming gatherings,
including college courses, neighborhood coalition meetings, and city council sessions. As part of the strategy to set in motion the next stage of collaborative justice for other resident
committees, the Transportation Committee invited representatives of various community agencies to the potlucks: e.g., the police officer in charge of community policing; a community
service provider who works directly with residents on issues involving transportation, mentoring, and career development; and the local agency concerned with challenges faced by the
disabled and elderly.
22. William P. Quigley, Reflections of Community Organizers: Lawyering for Empowerment of Community Organizations, 21 Ohio N. U. L. Rev. 455,
455-79 (1994): (reporting on observations of community organizers on the role of lawyers, including these by Barbara Major: “[L]awyers have to learn how, with all of their skills, to
journey with the community. This journey has to involve the community really getting a sense of who they are, in the sense of beginning to understand their own power. In working with
community, the wisdom or the knowledge of the lawyer does not outweigh the wisdom and knowledge of the community, about itself especially.”
23. Dean Hill Rivkin, Reflections on Lawyering for Reform: Is the Highway Alive Tonight?,
64 Tenn, L. Rev. 1065, 1065-69 (1997): “Finally, there is a growing feeling that the reform lawyering of the past should be supplanted by a versatile, multi-layered advocacy more
characterized by community, compromise, and conversation; that the ethic or resistance that characterized reform litigation in the past should be replaced by an ethic of connections - one
of building alliances and creating alternative institutions, not engaging in guerrilla warfare.”
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