When paralegals work with communities to address injustices, there are four crucial methodological issues they should consider when developing their strategies: empower- ment; pursuit of root causes; balancing client interests against those of the community; and the conceptions of justice that underlie community paralegal work.
6.3.1 Legal Empowerment
Some paralegal programs distinguish themselves from traditional legal aid by an emphasis on legal empowerment. While the conventional approach to legal services envisions experts providing technical assistance to needy clients, empowerment-oriented paralegals aim to increase the capacity and agency of the people with whom they work. Community-based paralegals—who are often closer to the community and have a wider mandate and a wider set of tools at their disposal—may be better positioned to increase the capacity of their clients than a lawyer would be. Legal empowerment techniques include incorporating education into every aspect of service delivery; working with, and strengthening, community organizations; organizing collective action to address justice problems; and engaging in community education and dialogue on justice issues.
Prioritizing legal empowerment has concrete programmatic implications. A paralegal’s attitude towards his or her client should be “we’ll solve this with you” rather than “we’ll solve this for you.” Paralegals should ask themselves in each case: Was the client or the community left stronger in some way? And paralegals’ performance should be evaluated on that basis. Paralegals should take the time to explain the relevant law, and decisions on strategy should be made in collaboration with clients.
The Alternative Law Group in the Philippines incorporates a legal empowerment approach. When they take up litigation, paralegals educate community members on the legal issues—including the potential advantages and disadvantages of going to court— before lawyers become involved.
Emphasizing empowerment, however, must be balanced with other priorities, like the client’s security, time, and resources. Though including the client in an advocacy meeting is normally preferable, a paralegal might depart from this practice if it would place the client in danger, or result in prohibitive cost or delay. (Table 1)
6.3.2 Underlying Causes
Paralegals’ broad mandate and diverse set of tools allow them to consider the underlying causes of the justice problems they encounter. Some of the work needed to address underlying causes can be undertaken at the community level— through community education, community level advocacy, or organizing collec- tive action. Other problems require changes in state policy or law.
Table 2 is an example of an action strategy which includes case-specific mediation, community education, and legislative advocacy.
6.3.3 Client and Community Interests
In some ways, paralegal programs operate like traditional legal services organiza- tions. Their mission is the same: to solve people’s justice problems or, put another way, to remedy violations of rights. Like lawyers, paralegals maintain case files and uphold client confidentiality. Many paralegal programs also borrow the term “cli- ent” from the lawyer’s lexicon to refer to the people they serve.
But in fact the word “client” only partially describes the people served by community-based paralegals. For paralegal programs emphasizing legal empow- erment, “client” is an imperfect term because community-based paralegals engage the individuals and communities with whom they work not only as people in need of a service but also as social agents.
Another way in which the term “client” misses the mark is that in one key respect paralegal programs tend not to defend the client’s interest as highly as a lawyer would. The adversarial nature of the common law system—based on the theory that a neutral decision-maker is more likely to arrive at a balanced view if each side has a zealous advocate than if all sides attempt a degree of neutrality— rests on the presumption of “equality of arms.” It makes sense where both sides have comparable representation.
But in intra-community disputes—that is, disputes between members of the communities that paralegals serve—it is not uncommon for none of the par- ties to have any form of representation. The paralegal program may be the only source of justice services available. It would be arbitrary, then, for the paralegal program to favor the party who happens to approach its office first. Rather than the particular persons who file complaints, then, paralegal programs often con- ceive of their ultimate duty as being toward the entire community and toward basic principles of justice and democratic equality.
Table 1: Service Provision vs. Empowerment-Oriented Approaches
Strict Service Provision Approach Empowerment-Oriented Approach
An Individual Level Problem:
A woman complains that her employer fired her without paying her last three months’ worth of wages.
Paralegal takes the details of the case, assures the client that the program will help her, and then sends her home. Paralegal approaches employer, citing law and the possibility of litigation. Employer sends the back wages to the paralegal office. Client is called to pick up the wages.
Paralegal takes the details of the case, and then explains to the client the law on back wages and the remedies available. Paralegal discusses strategy with the client: the first step is either a letter or a visit to the employer. If they decide on a visit, then client and paralegal might go together; if they decide on a letter, then paralegal explains the contents of the letter to the client. By the time client obtains relief, client should know more about employment law and about the process of seeking redress.
A Community Level Problem:
Members of a farmers’ group complain that seed loans promised from the Ministry of Agriculture have not arrived.
Paralegal assures the farmers that the program will help them and sends them home. Paralegal tracks down the relevant officer in the ministry, who has no explanation for the delay. It is apparent that he was waiting for a bribe. Paralegal complains to a senior officer in the ministry, who agrees to look into it. After several meetings of this kind, the seed loan is delivered.
Paralegal discusses strategy with the farmers, and approaches the ministry with the leader of the farmers’ group and representatives of those farmers whose loans were withheld. The group leader and the farmers are involved and informed throughout the process of advocacy. After the loans are delivered, the paralegal works with the farmers’ group to improve their system of internal communication, so that members have a way of raising complaints, and so that the group can take action on its own behalf.
Table 2: Addressing Underlying Causes Using Layered Intervention: Child Neglect
Problem Intervention
Timap paralegal offices receive numerous complaints from single mothers who claim that the fathers of their children refuse to take responsibility for the costs of parenting.
Paralegals primarily use mediation to establish child support agreements. They invoke the obligation under customary law to take care of one’s child. They also incorporate elders from both families, who add legitimacy to the agreements and later assist in monitoring and enforcement. It became clear that one root cause of these child neglect
cases is young men and women having children before they are capable of raising a family.
Paralegals address this social issue through community education and dialogue. They convene meetings with young people to discuss safe sex, sexual health, and family planning. The meetings include a nurse who was born and raised in the area (and who therefore was familiar with the social pressures which young people face there) and a peer educator from an organization dedicated to sexual health education. The dialogues give youth the chance to ask candid and specific questions about condom use and sexual health. Dialogues also provide young people with a chance to discuss the difficult choices they face with each other and with mentors.
Another problem which may be causally related to the prevalence of child neglect is inadequate legal protection of mothers. An outdated ordinance caps child support payments at 100 Leones per week (U.S. $0.04). Though magistrates sometimes depart from that limit, the ordinance severely weakens the possibility of a formal legal remedy in the event that mediation fails.
One way of dealing with legal inadequacy is to find an alternative. When mediation fails, paralegals suggest the use of customary courts rather than formal litigation. Customary law requires that a man take responsibility for his children, and customary law is not bound by the formal-law ordinance. At the same time, Timap as a program is advocating for replacing the ordinance with a sensible and modern system for determining child-support payments.
6.3.4 Client versus Partner
Conversely, to call the person(s) whom a paralegal assists a client also may miss the mark in that many paralegal programs strive for a partnership between the paralegals and the populations they serve, rather than a provider-client relationship. This is particularly the case where empowerment is a goal.
Yet another variation on this theme is that some lawyers may treat their impov- erished clients in a disrespectful manner, due to the lawyers’ superior education, knowl- edge, status, and financial resources. Under such circumstances, the recipient of the services is a client in name only. Out of ignorance, she accepts the attorney’s advice and pays the attorney’s fees without knowing whether she is being well-served. While parale- gals do not automatically epitomize virtue, when they pursue their work with a spirit of partnership they are likely to treat the people they serve with respect.
6.3.5 Community versus Group
Finally, it is important to keep in mind that sometimes paralegals work with and for a distinct group within a community, rather than for the community as a whole or for individuals within it. Some paralegal programs specifically aim to serve and strengthen women, for instance. To the extent possible, they may try to cooperate with the men in the area, but their main focus is on protecting the rights of women.
Similarly, other programs may concentrate on tenant farmers as a partner popu- lation. They accordingly may be indifferent to some other groups within the commu- nity—shop-owners, for instance. And they may even be hostile to other groups—such as landowners who might aim to undermine farmers’ rights.