The Client

No, I am not reading John Grisham right now. I am in fact reading World Without End. Apparently I have read it before, but it wasn't until after I bought it and was about 50 pages in that I realised this. Meh well, reading it again. But that is not actually what I decided to write about today. I have to admit, most of my blogs, well actually all but one, have focused on the more travel side of my time here. There are a few reasons for this. First, there are often pictures of the travel side, not so much of the work side (and I think pictures make blogging more interesting). Second, work is work, and I often forget to write anything about my thoughts and observations. Third, I basically work at a law firm, it is focused on rights, but one of the main things anybody who paid any attention in professional responsibility can tell you - we must respect the confidential relationship between ourselves as lawyers and our clients. However, today I thought I would share something generic about clients here at the LRC. In the past couple weeks I have experienced something that I never experienced at Blakes (the big corporate firm that I articles with). Wait, there are many things that fit into that observation, but this time I am talking about the clients, the way clients become clients and how we move forward. LRC is a human rights focused legal NGO. We argue the case of protecting individual and group rights. For the most part, our arguments are generally made based on the rights guaranteed under the South African Constitution, arguably the most progressive constitution in the world. But getting back to the clients. We seem to have two ways that people become clients, first, like any law firm, some people approach us with an individual wrong, something affecting them personally. This is the way that I have been used to having clients come into my working life (although their issues are a little different than the corporate clients I dealt with back in Ottawa). But it is the second stream of clients that I have found to be intrguing and has really got me thinking. The second stream of clients is what I think of as issue-first. What I mean by this is that before a 'client' is identified, an issue is identified. This is, in many ways, the essence of test-case litigation. Now, the issues are identified in a number of ways, for instance, we may read about something in the newspaper, or we may be approached by another NGO who service a particular community, or we may be alerted to a wider problem when one individual comes in with their specific problem. It is after these issues are identified that, for me at least, the really interesting process begins. If litigation is the chosen approach to battle the identified problem, we need a claimant. We need a claimant who will clearly put the problem before the court; a claimant who shows just how much of a problem the identified issue can be; a claimant who, ultimately, is sympathetic. It sounds terrible, but in many ways, it feels like we are shopping for the right client. This seems harsh, I agree. But the reality is, if we are trying to push the law in a certain direction, because of the precedent system, we better go forward with the best case, and inherent in that, the best client possible in order to ensure that the precedent that is set, is helpful to all others who are similarly situated. Believe me, my mind has battled with this. And I have had a few conversations with family, friends and colleagues about how this works and how I feel about the approach. But I have to admit, as much as I find it somewhat difficult to accept, the reality of our system is that we don't want a negative precedent set, we want to help as many people possible with a positive precedent and the so-called right client is one key part of that. So how do you go about finding this client? Well, the first step is information. And currently I am working on two cases that are in the process of finding 'the' client. We know that there is a problem, and we want something done about it, so we are moving towards litigation, now for finding the client. In both cases we have local NGOs who work in the affected area and in both cases, these NGOs are our point of contact and our way of finding a client. So, to find the client, there are certain personal characteristics and experiences that the potential client must have. For instance, in one case, the potential client must be under the age of 18, they must have certain medical conditions and they must have a certain life experience that is part of the chain that has caused the medical condition. So, how do we find these people - personal questionnaires. Thanks to the partner NGO, we have access to the community. We develop a questionnaire that gets to the heart of the matter, gets the information that we need. Once we have these questionnaires, we are able to identify a few potential clients and move on from there to interviews. Sometimes we are able to find one claimant, sometimes a few, but the process focuses on finding the best claimant to put before a court hoping that this will be one step in a successful claim, which then sets a positive precedent, which hopefully can be used to help others who are in similar situations. Again, I am still coming to understand this process and accept this process. And I have to admit, it makes me think of Canada, and all those Supreme Court cases that I read in Bill Lahey and Shiela Wildeman's first year public law class focusing on rights. For instance, when Tawney Meorin challenged her dismissal as a firefighter based on physical exams that were not directly relevant to the job, was she the 'ideal client'? Did she represent a group of other similarly situated women, but she was identified to be the most sympathetic? Or was she a one-off who decided to fight back? And in fighting back change the face of Canadian equality law? I don't know the answer to this, but it is in the back of my mind. I know that there are cases of both in Canada, just like there are both here in South Africa. There are also instances where Canadian law was changed, not by someone directly affected, but because someone, who was somewhat on the perifery, decided to take a stand for what he believed in, to take a stand for those he believed were so stigmatized that they were unable or unwilling to stand up for themselves. The client is just one part of the strategy when working in human rights, but it is the part that I feel like I am currently confronting the most. Whether changes happen, and peoples rights are truly respected is what matters. But it making sure that this happens, the client is a very real and very important consideration. So, that's my little observation about The Client at a human rights NGO in South Africa (or, as I believe to be true, anywhere around the world).