Category Archives: action learning

On embracing failure: the paradox of public interest lawyering

(This is an amended version of a brief presentation given at Progress 2015 Legal Drinks).

You have likely spent today talking about progress, campaigning, and changing the world.  So  what then, in your view, is the first step to making a more meaningful impact with your work? What is your first step to changing the world? A common response to this question is that in order to change the world, you first need to change yourself. I agree with this, wholeheartedly. And yet, what does it actually mean? It could  mean anything, and so risks meaning nothing. This leaves us with the same question: as a public interest lawyer, where do you start?

I am going to suggest a first step that may be, for some, controversial. I am going to suggest that the first step to being a more impactful public interest lawyer is to embrace risk, failure, and uncertainty. I want to talk about mistakes.

I don’t say this out of the blue, but on the basis of some research I have been working on for the last four months. My research focus is on best practice strategic lawyering: how are public interest lawyers doing their work, what works (and what doesn’t), and how can we do our work better, particularly around holding institutions to account? This  has meant that I have spent the last four months speaking to close to 100 lawyers, academics, and thinkers across Victoria, in Sydney, and Darwin, and in seven international locations, about these very questions.

One surprisingly bright thread that emerged from these discussions was that the lawyers who I perceived to be doing the most impactful work were also those that were most comfortable with talking about their mistakes. They were the lawyers who were most willing to run the cases that were not clear-cut, in which there was a real risk of not pleasing everyone, of having to make difficult decisions, and so, ultimately, of failing at any number of precarious junctures along a litigation path. When (what could be described by some as) mistakes were made, these lawyers chose to reflect on this meaningfully, humbly, and learn from it. They did not obfuscate, self-aggrandise, or deflect.

One example of this is the work of the Centre for Applied Legal Studies (CALS), in Johannesburg, in responding to the Mapungubwe mining project over the last five years. Mapunguwe is a listed World Heritage Site and national park in the very north of South Africa, just near Botswana and Zimbabwe. It is a broad, sweeping savannah, which once lay at the centre of the Mapungubwe kingdom between approximately 900 and 1300 AD. This was the first established modern African empire, labelled by archaeologists as one of the most complex societies in southern Africa at the time. The site contains numerous ruins from this era, as well as diverse fauna and flora. It is supported by a buffer zone.

In 2008, an Australian-based company called the Coal of Africa (CoA) applied to mine for coal steam less than 7km north east of the Mapungubwe boundary. This was predicted to have severe implications for the cultural and environmental value of the site. CALS, together with the community campaigning group Save Mapungubwe Coalition, has over the last five years worked to at first oppose, and then mitigate, the effects of the mine on the area. They have succeeded in stalling mining operations, decreasing CoA’s share price, ensuring that CoA bear a cost for non-compliance, brought CoA under a greater regulatory regime, shifted mining operations further away from the Mapungubwe boundary, and, eventually, played an ongoing and meaningful role in the mine’s governance and oversight through their seat on the Environment Committee.

But not everything has worked. Most evidently CALS didn’t, through its initial litigation strategy, stop the mining. CALS and the Coalition commenced negotiations with CoA in 2012, but this stalled shortly thereafter due to a revelation that the company had withheld critical information. CALS’s resources were massively drained by the up-front litigation effort. There were miscommunications not only between the Coalition and CALS and their opponents, but also between CALS and the Coalition. Yet, despite all of this, there is no doubt that the two organisations have played an integral role in ensuring corporate accountability in this case. Interestingly, CALS has chosen not hide its reflections on the Mapungubwe story, but to write about them instead, in a series of publications.

One of my favourite examples of this is its Community Engagement Policy, which sets out some CALS reflections on how to work with community groups, in light of its Mapungubwe experience. CALS has also extracted out of this experience the inadequacies of the environmental regulatory regime, and made recommendations for how the environmental governance system should be amended to make it simpler and easier to navigate for civil society. CALS’s explicitly reflective approach to its work is one factor that makes it good at what it does. Its willingness to talk about what could be characterised as mistakes means that we can all learn from them, of course.

But there is something more to mistakes than the way we relate them back to success. One wonderful and talented writer that I met on my travels, Eve Fairbanks, writes this:

 “I think failure has a special beauty to it. Like a piece of furniture that falls apart, a mistake reveals more of its construction – of the efforts and motivations of the mistake-maker – than a success does”.

I love this. Like patches on an overcoat, failure has its own unique qualities. And, as Kathryn Schulz suggests in her book Being Wrong: Adventures in the Margin of Error, by simply acknowledging failure’s distinct (and inevitable) essence we may actually open ourselves to a wider breadth of experience and emotions. Embracing failure can feed our imagination, give us cause to laugh, and ultimately make us less arrogant, more empathetic, says Fairbanks. Which, in the legal world, is always a valuable thing. And so, one step toward being a more impactful public interest lawyer, or social change campaigner, may well be to get comfortable with failure.

It is a wonderful paradox, that in the perfectionistic legal profession, we might actually be better at our work if we can only hold risk in our hands. And skate so close to failure that sometimes, inevitably, we tumble into icy waters. American entrepreneur and venture capitalist Auren Hoffman says that in order to grow, you should aim to fail 20% of the time. Less than this and you’re not growing, but more than this and you may get disheartened. In law, and particularly in litigation, you may not choose to give yourself that leeway. However, there is always room to move. I would suggest creating a space in which you can experiment in failure, and see where it takes you.

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Campaigning and framing

There is an array of problem-solving approaches, frameworks and campaigning tools that may be useful in the community law space. While in London (and yes, this post is a short return to the UK) I had the pleasure of being introduced to many of these by the very knowledgeable Dan Vockins, Lead Organiser at the New Economics Foundation (NEF). Dan works primarily on the New Economic Organisers Network (NEON), which is “a network of individuals across grassroots groups, trade unions, faith groups, NGOs, politics and the media working to replace neoliberalism with an ecimageonomics of the common good. By connecting individuals and building their economics knowledge and organising capacity, NEON catalyses joined-up campaigns that tackle the economic root causes of social and environmental problems.” You can apply to become a member of NEON here.

Dan referred me to three pieces of work that will be of interest to many social change organisations:

  • Looking to reframe an issue but not sure where to start? The NEF guide “Framing the economy: the austerity story” is a wonderfully succinct reading of how the economy is framed in the UK, what alternatives there may be to that narrative, and suggestions on how to deploy these.
  • Want to build networks and promote creative problem solving on an issue? Consider using an action learning methodology. Action learning aims to promote open consideration of complex problems within a group through a process of curious questioning and reflection. It is intended to facilitate participants’ understanding of both their areas of knowledge and ignorance. Action learning often involves a structured group discussion among peers, in which the group works through a problem of one participant at a time. For guides on the practice of action learning, see here and here.
  • Why is it that a legal strategy is effective to address one particular issue, but not another? One approach may be to step back and map the system you are working within, including the relevant  players, power structures, and their interests and values in relation to a particular issue. From there, it may be easier to consider at what intervention point, or leverage point, a strategy operates. It may be that your strategy is directed at an issue but does not effectively respond to particular public values that validate an unjust policy, for example. Relevant tools in relation to this are the Common Cause discussion on values, and Donella Meadows’s work on systems analysis and leverage points.

Dan also offered the following useful words of advice:

  • Relationships precede action. Consider forming relationships to enable you to respond more effectively in coalition when crises arise.
  • Consider values. Consider whether the way you campaign, and tell stories through advocacy work, is exercising the values that ultimately reinforce your centre’s overall objective and vision of justice.

Values are like muscles. The more society exercises a particular value, the stronger it is.”

  • Be clear about your target audience. If possible, continually test your messaging on focus groups.
  • Don’t try and do too much at once. Consider the Manifesto for Agile Software Development. This Manifesto provides, in short, that you create the minimum structure for a program (or campaign), test it, and, only once it has been shown to be useful and operational, build upon it in collaboration with users. This ensures that the program is most tailored for, and responsive to, users’ needs.
  • Don’t be afraid to iterate. Build time in for evaluation, and through that, for fine-tuning a campaign.

I had two further thought-provoking encounters, a little outside of the legal space, while in London. Firstly, I met with Susie Steed, who is currently completing her PhD on performance measurement in the not-for-profit sector (and who previously worked as an economist for the NEF). I asked Susie about her views on the use of Social Return on Investment (SROI) evaluation for community lawyering, and left with the impression that SROI may be more resource-intensive and bureacratic than useful in this context. Rather, she drew my attention to other evaluation possibilities. Our conversation touched on John Seddon‘s systems thinking, a method by which service delivery is analysed, and evaluated, as a “flow” system rather than in terms of measurable outcomes. We also discussed Daniel Kaheman‘s holistic idea of wellbeing, through which he argues that wellbeing cannot be understood by way of a single measurement.

I also very briefly met Luke Bacon, who works with the Open Australia Foundation, a civic-tech organisation that tracks and makes accessible the parliamentary voting patterns of members of Parliament. Luke is also co-founder of Detention Logs, which publishes data, documents and investigations about Australia’s immigration detention network. Civic-tech is a space that may have great potential for better connecting the community law sector with its target client groups.

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