Stategraphy (Studies in Social Analysis) by unknow

Author:unknow
Language: eng
Format: epub
Publisher: Berghahn Books
Published: 2017-11-29T16:00:00+00:00

Legal Advice and Clients: Friendly Objectification and the Creation of Evidence

In the relations between advisers and clients that we observed, friendly encouragement was predominant. However, while mediation and negotiation are central to the practice, providing advice is also a gatekeeping practice and, to this end, can involve unyieldingly strict interactions with clients, since lawyers and paralegals are being called on to monitor access to state resources and to the formal justice system itself. Lawyers and paralegals do so, in part, by creating robust evidence. Evidence is a key object of contestation in transactions between various state organs, advisers, and individuals seeking to actualize their rights. In building a legal case, caseworkers gradually strip away extraneous detail in order to arrive at a persuasive line of argument (Good 2007: 15), performing a work of translation between the man on the street and the culture of a legal system whose logic and rules of evidence are far from obvious. If this work is not carried out expertly before filing a legal case, the right evidence may be unwittingly left out from the witness statement, leading to its exclusion and thus the collapse of the case.

Robert, a trainee solicitor at the SLC, explained that the evidential arrangements in the legal system aim not simply to ensure that each citizen has his or her day in court but also to prevent unnecessary litigation. The advice giving explored in our ethnography was largely aimed at helping people stay out of court. People without legal advice are more likely to go to court, but it is often more advantageous to negotiate a settlement before proceeding to a hearing, thus avoiding the possibility of being made to pay the other side’s costs. Clients, Robert pointed out, are not always aware of this and tend to get passionate about their cases, building great expectations around the tantalizing promise of justice. In such cases, the adviser’s job, as Robert put it, is to provide perspective, to “refocus them on what the tribunal will actually do, because their ideas are often based on complete misconceptions. [The judge] will want to know very specific things … A lot of people are using the word ‘discrimination’, but they do not mean discrimination in the legal sense, only in the sense of being treated differently. Their understanding of the word and concept is different from that of the judge and the tribunal. People are also ill-equipped to put their evidence in the witness statement. They do not know what constitutes valid evidence and what they need to prove ” (emphasis added). If the right evidence is not included in the witness statement, it may never be admitted. Yet many clients do not respond well to written communication or lack the linguistic or analytical skills to grasp what is required. They may provide the wrong evidence or miss deadlines. Robert continued: “Then the judge [says]: ‘Your problem!’ And that is right, in a sense. He is not an adviser; he is there to decide on the legal issues.

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