Brief abstracts of conference sessions will be listed here once the final program has been confirmed.
Title: Preventive lawyering in justice education and legal practice
Lead Presenter: Campbell, Jonathan
Co-Presenters:
- Brooks, Susan
- Cole, Liz Ryan
Session Abstract: Much of what law clinicians do (and have done for many years), both in our teaching and our practice, can usefully be conceptualised as preventive lawyering (not unlike preventive health care, e.g. HIV/AIDS education and health practice). There are two interrelated elements that mirror the overarching dual purposes of most law clinics: 1. Preventive legal education (e.g. community education; street law): e.g. via radio talk shows, newspaper articles, workshops, posters, pamphlets, and more: prevents the broader community, in particular the indigent community, from making bad decisions and falling foul of the law out of ignorance of important legal provisions that impact on everyday life (e.g. buying a house, reporting and winding up a deceased estate, concluding a credit agreement). These are not necessarily grand constitutional or human rights related issues that are germane in a new constitutional democracy such as South Africa. Rather, they are everyday legal issues, drawn from the needs of our clients that nevertheless relate to fundamental human needs (and rights). Also, the teaching of alternative (or rather, appropriate) dispute resolution methods, e.g. negotiation, mediation and counselling skills to equip students and paralegals with the skills necessary to be able to practice preventive lawyering methods. 2. Preventive legal practice through, for example, the promotion of alternative dispute resolution methods in law clinic practice (e.g. negotiation, divorce mediation, labour arbitration): prevents individuals from being subjected to the expensive, time-consuming and alienating challenges of the courts. Also, preventive legal advice: legal advice aimed at preventing clients from making disastrous decisions (e.g. concluding a credit agreement that will result in the client paying about three times as much for the item of furniture, which client can ill afford), or that facilitate the resolution of disputes without resort to the courts. Both approaches have a positive and even therapeutic outcome for the individuals or communities concerned, and thus may fall broadly under what some call ‘therapeutic jurisprudence’. Many clinics subscribe to this preventive approach to lawyering, and have been doing so for years. Yet it is useful to conceptualise these ideas. In this way, these fringe lawyering practices can become more mainstream and widely recognised, which is certainly not the case in South Africa. This may resonate with other clinicians who are participants at the conference. There are many young lawyers and law students who (like me) question the traditional expectation that all cases must be litigated and fought by hard-nosed lawyers, with a winner takes all outcome; who would like to use the law more proactively to benefit disadvantaged communities and individuals and help them to make better decisions on matters in which the law touches their lives, rather than repeatedly trying to patch up clients’ problems after they have fallen foul of the law out of sheer ignorance. These young lawyers and law students tend to occupy a kind of fringe area of both legal education and practice, with different or alternative ideas about doing or practising law. There is a need to promote and legitimise alternative concepts such as preventive lawyering such that young lawyers are encouraged and supported in their professional identity formation, and in pursuing careers and ways of practice in this area. The leadership and mentorship of senior law clinicians, both in teaching and in practice, are necessary to achieve this.
Session Material:
See full list of abstracts here.