Category Archives: community engagement

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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South Africa: litigation, and beyond

‘”Litigation is warfare. And there is this thing called the “fog of war”.’ – David Mossop QC, Community Legal Assistance Society (Vancouver)

Litigation is often threadbare with risk and uncertainty. And the longer one marches forward along its path, the more certainly life gets in the way. This is particularly so in the area of public interest and community law, where clients often have multiple crises occurring, and few supports. So much legal work is done in the lead up to, after, or around the heat of the courtroom. Yet it is rarely celebrated, collated, or scrutinised.

The South African lawyers I met with were inspiring not only for their litigation work, but also the thinking they did beyond and outside of the courtroom. Much of this was in the areas of compliance, enforcement, and coordination of misaligned regulatory agents and systems. Below, in this final installment of the travel component of the blog, I set out a few examples of this work. Mapungubwe_hill_limpopo

Monitoring and reporting on institutional arrangements. Since 2010, the Centre for Applied Legal Studies (CALS) has been working with the Save Mapungubwe Coalition on responding to the Coal of Africa (CoAL) (listed on the ASX) mining project on land adjacent to the Mapungubwe Cultural Landscape World Heritage Site (Mapungubwe). I spoke to Louis Snyman, Attorney in the CALS Environment Programme, about his work on this matter. He talked me through CALS’s “experimental, multi-pronged” litigation strategy in this case, which is also set out in its research report titled Changing Corporate Behaviour: the Mapungubwe Case Study (Feb 2014), at p 20-21:

“Although often painted as hardened opponents of all mining, Coalition members tried to adopt a position that was always nuanced. It advocated a considered approach to where and how much mining would be conducted, while being opposed to mining near sites of the highest heritage value and ecological sensitivity. However, since the outcomes of litigation are always uncertain, the Coalition was prepared for the possibility that it would not be able to stop the development. Under this scenario, the Coalition resolved that it would take all necessary steps to ensure that CoAL operated with all the required licenses and that license conditions adequately minimised and addressed environmental impacts, and that CoAL would be held accountable for any non-compliance. Litigation, even if unable to stop the mine, could convince the company to revisit its environmental practices and apply for amendments to licenses that failed sufficiently to protect heritage, biodiversity and water resources.”

And so it did. The Coalition, with the legal assistance of CALS, launched numerous appeals against licenses and approvals granted to CoAL, and made an application for an interdict (an injunction) to prevent environmental harm while these processes were underway. Yet in October 2011, CALS and the Coalition resolved that the “strategic calculus” shifted in favour of negotiations with CoAL, and so commenced these negotiations. Despite stalling in 2012 due to a revelation that CoAL had withheld information from the Coalition, this process resulted in the Coalition being granted a seat on the Environmental Management Committee for the project. Since that time, the Coalition has managed to play a vital role in ensuring CoAL’s compliance to the governance scheme. The Changing Corporate Behaviour report sets out a series of useful lessons learnt along this path.

CALS also found that its extensive work on the Mapungubwe case presented a unique opportunity to scrutinise the efficacy of the state’s regulatory and institutional framework for environmental governance. It therefore compiled a further report titled Structures of Governance: Enhancing or Impeding Environmental Justice? (August 2014) that sets out its findings and recommendations in this area, and which it intends to use as an advocacy tool.

A taxonomy of (non)compliance. Lawyers for Human Rights is “an independent human rights organisation with a 35-year track record of human rights activism and public interest litigation in South Africa“. During my visit there, the Head of its Strategic Litigation Unit, David Cote, helpfully introduced me to the established categories of legal (non)compliance. image

This language provides a useful framework through which to assess the likely impact of available legal strategies. For example, one projected response to a court order may be incompetent noncompliance: where an institution will be practically unable to comply with the order. For example, a municipality may simply lack both the engineering skills, and financial resources, to provide its citizens with safe drinking water. In such cases, consideration may most usefully be directed to what action, and at what intervention point, would most effectively redirect resources in order to effect compliance.

Then there is traditional bad-faith noncompliance, vis-a-vis, for example, malicious compliance. The latter is where an institution complies with the words, but not the spirit, of a court order. Bad-faith noncompliance may require further enforcement litigation; however, a grudging form of compliance may be shifted by a more cooperative approach. Where there is an uncooperative old guard within a department with a new forward-thinking minister, for example, there may be more value in cooperating with the minister and encouraging robust departmental human resources practises, than in further litigation.

Interestingly, on further reading, this legal discussion seems to draw on the human resources literature of change management that deals in rule-related behaviour and responses to organisational reform. For example, one scale maps the movement from apathy and non-compliance, through various shades of compliance, to commitment. Other literature focuses on different forms of resistance to organisational change. This may be relevant to further expanding consideration of legal noncompliance.

For those in South Africa, the Public Interest Law Gathering to be held at Wits University in Johannesburg this 22-24 July 2015 is likely to feature a roundtable exploring these issues.

imageRemaining client-focused. I also met with Tashwill Esterhuizen, Litigation Attorney at the Social and Economic Research Institute (SERI). SERI undertakes legal and research work in order to advance the attainment of socio-economic rights of individuals, communities and social movements in South Africa. Tashwill and I discussed many of the unlawful eviction cases SERI has run, and in particular the Blue Moonlight, Dladla (currently on appeal) and Abahlali cases. SERI prioritises responding to the needs of the community, and so most of its cases come out of established relationships with clients and community groups. Tashwill warned me of the risk of having a case selection criteria without flexibility, which unduly restricts the ability to properly service the legal needs of a target client group. While being merely reactive is not ideal, nor is pursing strategic objectives oblivious to the very people that they intend serve. I, in turn, shared how Consumer Action tries to meet this dilemma. Consumer Action does set annual policy objectives, and these do inform its weekly legal case selection process. However, flexibility is inbuilt by way of an area of policy work called “hot issues“, which is informed by systemic issues emerging out of the legal, and Moneyhelp’s financial counseling, casework.

Playing a coordination role. Probono.Org in Johannesburg operates much like Justice Connect: it is a clearing house for pro bono work undertaken by the private law sector. Its office is also nestled in the Constitution Hill complex, one of my favourite places in the city. Here I met with its Head Staff Attorney, Annelie de Plessis, who told me about Probono.Org’s recently launched “One Child a Year Campaign“. The project calls on lawyers to take up a “watching brief” in child protection matters, providing at least one year’s commitment to monitor and oversee the child protection process.  IMG_0102This is in response to a series of incidents in which, despite court orders, the poor coordination of state agents has resulted in children, at worst, being forgotten in hospitals or abused within the child protection system.

The importance of a healthy workplace. Finally, I met with Patrick Hundermark, Chief Legal Executive of Legal Aid South Africa. Through our discussion, I was particularly struck by the pride with which Patrick discussed Legal Aid SA’s recent certification as a “Top Employer“. I got the impression that this had been achieved on the back of a concerted reform effort targeted at revitalising the organisation’s governance practices and systems, and informed by private sector best practice. In particular, he referred to how the organisation had sought to establish a compelling “employee value proposition” (EVP). This is, to quote Wikipedia, “the balance of the rewards and benefits that are received by employees in return for their performance at the workplace“. While the composition of an EVP is specific to an organisation, and will no doubt differ markedly between private, public, and not-for-profit sectors, it is an important organisational consideration across the board.

We also discussed the operation of Legal Aid SA’s impact litigation arm, which is guided by a publicly available Impact Services Policy (set out in its Legal Aid Guide). Through this mechanism, Legal Aid SA funds internally, externally and collaboratively run impact litigation. One interesting example of this is the current and controversial Marikana appeal to the Supreme Court of Appeal. On August 16 2012, 34 people, mostly employed by Lonmin platinum mines, were killed after police opened fire on striking miners. Many more were injured and arrested following this shooting. This tragedy has been compared to the 1960 Sharpeville massacre, and a Commission of Inquiry was called to investigate the incident. In 2013, Legal Aid was ordered by the High Court to fund the legal representation of the injured and arrested Marikana miners before that Commission. In 2014, Legal Aid sought leave to appeal that order to the Supreme Court of Appeal. Its chief executive, Vidhu Vedalankar, is reported as saying that the High Court had trespassed on the separation of powers, in that it “has not only changed the priorities set by Legal Aid SA but fundamentally interfered with its budget, thereby impacting on its ability to provide representation”’.

What’s next?

I have begun the report-writing, and you can look forward to a few short blog posts over the next few months as this work unfolds. Again, I welcome all feedback, suggestions, or clarifications on any of the points or questions raised in this blog to date.


Images:

[1] Picture of Mapungubwe Hill. Source: http://upload.wikimedia.org/wikipedia/commons/5/53/Mapungubwe_hill_limpopo.jpg

[2] Lawyers for Human Rights entrance.

[3] SERI sign.

[4] Probono.Org doorway.

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On meaningful community engagement

Perhaps unfairly, the language of “community engagement” evokes within me a wary scepticism. Will it be empty tokenism? Meaningless jargon? Mere platitudes? Yet the Centre for Applied Legal Studies (CALS), in Johannesburg, has recently published a Community Engagement Policy (2014) that preempts and placates these concerns. It is a practical and insightful document that works to broaden “the traditional matrix of legal ethics of lawyer, client, and legal CALS CEPactivity… [to] include indigence, power differentials between client and lawyers, collective rather than individual clients, and non-traditional lawyering tactics” (p 11). It seeks to set some ground rules for respectful, ethical and effective communication between the lawyer and client in a non-private-sector context, in other words. In the Victorian (Australian) context, it harks back to a recurring discussion among community lawyers about the inadequacy of the mainstream legal ethics framework for community law work.

The principles of the policy (and some overlap) are as follows:

1. Mutual Respect and Co-operation

2. Overlapping Consensus of Justice

3. Non-Discrimination and the Pursuit of Equality

4. Security and Dignity of Clients

5. Clarity regarding roles, responsibilities and mandate

6. Clarity regarding intended outcomes and managing expectations

7. Representative, Participatory, and Responsive Leadership Structures, and Individual Agency, within Communities

8. Clear Instructions based on informed decision-making

9. Professionalism

10. Honesty and Integrity

11. Regular and Accessible Communication

12. Confidentiality and Anonymity

13. Transparency and Sharing of Information

14. Enhancing Legal and Specialised Knowledge of our Clients and Partners

15. Inter-Disciplinary Enriched Problem Solving Collaboration

16. Pursuit of Cross-Cultural Competency

17. Avoiding Conflicts of Interest

18. Continuity and Longevity

19. Maintain Objectivity and Independence

20. Self-Reflection

21. Accountability

22. Compliance with Rules of the Profession

There are three further parts of the policy I found particularly interesting:

  • an initial and explicit reference to reflection as a critical aspect of CALS’s work;
  • the statement of benefits for lawyers of effective community engagement; and
  • the discussion of the international and domestic law foundations of the “right to participate”.

Firstly, CALS explicitly incorporates critical reflection as an integral component of its work. See, in the introduction to the policy at page 9:

“CALS approaches its work through rigorous research, client engagement, advocacy, and creative lawyering. Increasingly, CALS has identified a fourth component of our work, namely, critical self-reflection to ensure that we are doing the ‘right work’ and that we are doing the ‘work right’.”

The implication is that this policy has emerged out of this reflective approach to legal practice. The policy goes on to state that while many of its principles are intuited and practised by lawyers, there have been few attempts to articulate them as a whole.

Secondly, the benefits of effective engagement are listed as (pp 12-13):

  • responsiveness: if you engage effectively with your client(s), you are more likely to be responding to their actual needs;
  • legitimacy: similarly, your strategy will likely have greater legitimacy with the clients that you work with, as well as among the public at large;
  • leadership (capacity building): by effective engagement with your clients, there is the possibility of building leadership capacity within the community to drive further social change.

Thirdly, CALS steps through the international and domestic legal foundations for why effective engagement and participation of clients in the legal process is important to human rights legal practice. The discussion of the South African Supreme Court’s comments in the Doctors for Life International v Speaker of the National Assembly et al. (2006) case captures this well in the South African context:

‘Ngcobo J. underscored the historical origins of ‘people’s power’ as an alternative to the undemocratic system of apartheid, and that those processes became the foundation for a constitutional obligation of participatory democracy – not just ‘legislative etiquette or good governmental manners.’16 The Court suggested multiple ways through which to meet this obligation: through: public education that builds capacity for people’s participation; access to information; access to law-making structures and processes; and the facilitation of learning and understanding in order to achieve meaningful involvement. Sachs J. identified the importance of public participation for people who had been the victims of processes of ‘historical silencing,’ noting the importance of their voices being heard, and for those who lack higher education, access to resources and strong political connections.17’

An interesting document, well worth a look.

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