Legal Literacy and Communication Skills: Working with Law and Lawyers
Chapter 1: Foundations of Legal Literacy
One can live in the shadow of an idea without grasping it. — Novelist Elizabeth Bowen
Many live in the shadow of the law without grasping it. Law reaches into every facet of life. At the highest level, the role of constitutional rights reaches from the right to speak in the public square to the legality of what happens in the bedroom. Statutory law affects every facet of life in specific and concrete ways: statutory law establishes federal Social Security and the framework for healthcare delivery, empowers the Securities and Exchange Commission to regulate sales of stock, defines copyright and trademark and other intellectual property rights, and requires workplace accommodations under the Americans with Disabilities Act — just to name a few examples. State and federal agencies also make regulations with significant input from the public and decide specific types of disputes. All these layers of law can be brought into the court system where, most commonly, licensed attorneys clash with other licensed attorneys on behalf of their respective clients, using legal arguments designed to persuade the experienced attorneys serving as judges to pick a winner. These clashes entail not only substantive legal questions about what a law covers or who can be responsible but also procedural questions about who can sue and where, and how the court should go about considering evidence and arguments about all of the above. With all these layers of possible arguments, it is no wonder that people with little to no legal training may have trouble understanding the legal forces affecting their lives.
But you will be different. You are already in the process of becoming legally literate. “Legal literacy” is both in the title of and at the core of this book. It means having the skills to grasp what the law is and how it works. Legal literacy empowers individuals to use their grasp of the law for personal and professional advancement. Licensed attorneys are legally literate, but legal literacy is broader than what licensed attorneys do for clients. Legal literacy empowers and benefits anyone whose life or work is affected by law. That “anyone” is you.
I. Literacy and Legal Literacy
The most basic concept of literacy is, of course, the ability to read and write. Literacy expands far beyond the basics, however, to include the idea of being “educated” and “cultured.” Thus, literacy in a community includes not only what an individual can actually do, but also how others in that community perceive and evaluate the individual’s skills and performance. Thus, literacy covers a person’s actual knowledge as well as the capacity to make others perceive the person as knowledgeable. In every field, literacy within that field is a matter of degree, ranging from minimally literate to extraordinarily erudite.
Legal literacy plays by the same rules as general literacy. It includes technical skills such as finding and reading the law. These skills require critical thinking, such as the ability to distinguish the law itself from biased representations of what others say the law is. Another skill is writing about the law clearly and accurately. Legal literacy is also deeply, thoroughly social. Attorneys are the original community defining legal literacy, and their community polices the boundaries today.
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Law professor James Boyd White described literacy in the law as a spectrum from just recognizing certain words as law-related and therefore outside one’s own expertise (on the beginner side) to full competence (on the expert side). At the very basic end of the spectrum, simply recognizing a word as unfamiliar and potentially legal in nature should be within the skill set of any college graduate. . . . At the other end of the spectrum, elite legal literacy requires not only formal schooling but also years of practice on top of it. For example, Lisa Blatt, a partner at the law firm of Williams & Connolly and head of that firm’s Supreme Court and Appellate Litigation practice group, has argued 50 Supreme Court cases on a broad range of issues, the first woman in United States history to reach that number. But the Supreme Court bar (meaning attorneys authorized to appear before the Supreme Court) is tiny, and these attorneys’ skill set is highly specialized. Neither you nor most attorneys have need for that sort of elite specialization.
Realistic, practical, attainable levels of legal literacy are used every day by many others, including the 1.3 million licensed attorneys in the United States, but legal literacy is certainly not limited to that group. The Model Rules of Professional Conduct, which are the American Bar Association’s template for state regulations governing attorney conduct, allude to a number of “law-related” service areas where legal literacy is relevant: “A broad range of economic and other interests of clients may be served by lawyers’ engaging in the delivery of law-related services. Examples of law-related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical, or environmental consulting.” These service areas are quite broad, but they are still just selective examples of the many fields and professions where legal literacy is needed and beneficial.
II. Competent Legal Literacy
So where do you fit in for purposes of this book and this course? Mark Hannah, an English professor at Arizona State University, has helped to define what competent legal literacy looks like. He argues that legal literacy is not just about recognizing the legal system as “an external, quantifiable entity” imposed on everyone; it is not “an after-the-fact phenomenon” that people “have no role in shaping.” Rather, legal literacy means recognizing that the people who read legal information, are affected by it, and use it are in fact “coproducers” of law itself. For technical communicators, such as professionals writing product warnings, coproducing the law means at least two things: (1) understanding that their professional decisions may make case law, for example if their product warnings are litigated; and (2) finding “opportunities for resisting or pushing against regulations, guidelines, or laws” that affect their field. In both situations, Hannah argues, professionals “should not see themselves or their companies simply as subject to or victim to the limits and restrictions of the law.”
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A core tenet of this book (and of degree programs such as Juris Master, Master of Jurisprudence, and Master of Legal Studies programs) is that other professionals can seek and attain “that degree of competence in legal discourse required for meaningful and active life in our increasingly legalistic and litigious culture.” This degree of competence in legal discourse is a highly valuable asset for working effectively with licensed attorneys. Non-lawyer professionals who possess competent legal literacy can face legal language with an awareness of its history, flaws, and potential — and can also work with lawyers in a more effective, productive, collaborative manner. While legal literacy partly means developing good judgment about when to involve an attorney, it also means becoming empowered to understand legal information and communicate with confidence about matters that do not require attorney intervention.