Continuing Professional Development

Applying reflexivity to legal practice

Dr David Cliff describes how and why reflexive practice is becoming essential for legal professionals to ‘contemporise their work … with a knowledge of self and its impact’.

About the author: Dr David Cliff is founder of Gedanken, a leading-edge executive and business coaching organisation.

We do not live in a codified world of law. Indeed, in a world of postmodernism, where the group unit has been described by some as consisting of a single person, the simple approach to the interpretation of law - and the practice that supports it - is unsustainable. The ever-increasing social, technical and increasingly environmental complexities citizens face precludes this.

Whilst the law has always had the flexibility of applying various forms of relativism to it (if only for purposes of mitigation). Modern times, however, generate challenging environments for the individual practitioner to work between the application of the rule of law, the institutions, practice and procedural requirements that sustain it, and an increasing number of imponderables that impact upon human beings in an ever more diverse, changing world.

Reflexivity in legal practice

Now more than ever, the practice of reflexivity in legal practice has become essential. Its origins come from social research methods. Popularly, people have heard of the ‘Hawthorne effect’, ie, the fact that the presence of the observer can materially affect the outcome of that which is being researched. This relatively simple insight belies a huge set of implications about the role and presence of lawyers in their practice as it impacts upon representing their clients across a myriad of potential causes. Contemporary practice is, therefore, improved by a deeper level of analysis that requires reflexivity at its heart.

Reflexivity occurs at a number of levels. We can talk about reflexivity in terms of the interpretation of the law itself. The very nature of interpreting safety legislation, voluntary codes and regulatory requirements often requires a level of interpretation that takes into account rapidly changing circumstances in the social world as well as evolving legal practice.

Moving beyond this to the practitioners own practice development, most people are familiar with the concept of reflection. Reflection, at its simplest level, is as literal as looking in a mirror and considering potential improvements. Take, for example, going to a special event: our clothes may not coordinate properly, or our hair may need straightening, etc. This corrective opportunity, at this level, allows for subtle improvements and the avoidance of mistakes in presentation. There are direct parallels to legal practice: What have we learned? What could we have done differently? What was our level of knowledge and was it adequate for the situation that was presented?

Keeping to the dressing in front of a mirror parallel, deeper reflection still takes the analysis of our physical reflection beyond simply appearance. What social conventions are involved in the way we dress? Are we going to a party or a wake? Are we attempting to make a social statement or blend in? These second-level reflections look at the presentation of self and its social impact.

Beyond this is a level of reflection that starts to begin to look at reflexive practice also. At this point, it is as if we have effectively stepped through our mirror and started to view ourselves from the perspective of the client, the court or some other body. In the clothing analogy, this ‘view’ might be: Has this person made an effort? or Are they competent and credible? The practice connotations are obvious - with the client/court/ other stakeholders’ experience of us in this process - what was the experience of quality, preparation, practice, adequacy of thought processes and argument, organisation and communication of competence?

Then we can begin to enter the realms of pure reflexivity, and ask ourselves, for example: What influence did I bring?; What was my impact in events?; and How did my presence there change things?; What are my biases, prejudices and values, and how are they reflected in how I have approached the situation I was in?

Why does this matter?

Without doubt, a legal practitioner massively impacts and influences the process of legal practice and outcomes. They are not anodyne operatives in isolation to the social schema that clients find themselves in, but are active social players in events and contribute to: outcomes for the client; the interpretation of the law; the generation of case law; and indeed, sometimes offer significant contributions to the very society in which we live in. This becomes apparent when seminal cases occur that establish precedent, attract large public attention, are legally paradigmatic or confront moral relativism.

Reflexivity is very important when encountering relatively new law. How do you feel about a police dog being treated as a serving police oÿcer, with concomitant rights, rather than the hitherto status of being property only? Whatever the wording of the legislation, our involvement in a relevant case will touch our own values towards animals, be that empathy or indifference, a sense of the importance of triviality of the issue when compared with human issues, the dog you loved as a child, or the one that bit you, and myriad other factors.

Cultivating reflexivity is as incumbent upon paralegals as it is on judges. Professional practice does not occur in isolation to deeply held values, experiences, our ethics and levels of empathy/emotional intelligence. It requires us to understand, in detail, the social context in which our practice contribution occurs for society, communities and the client. The notion that the law offers a fixed focal point to give a coherent sense of an otherwise diverse world may be comforting, but it does not illuminate practice in that diversity.

The Oxford English Dictionary defines reflexivity as ‘turned, reflected back upon the mind itself’. It involves understanding aspects of our actions, thoughts, feelings, identity and value bases and their impact upon the individuals, structures and situations we encounter. It involves the exploration of learned experiences, attitudes and biases, and even some notion of the cognitive biases that exist in all human beings and how they manifest in ourselves. It involves getting as close as possible to how you are experienced and perceived by others in a world of uncertainty.

How is this achieved?

As esoteric as reflexivity may sound for some, this is none other than enhanced awareness and knowledge, from a psychological point of view, of self and other, with some relatively simple ways to achieve this. Quality supervision is something that is often subordinated in practices to the ‘open door’ process of case management, with a problem focus wherein developmental opportunities for reflection are missed opportunities. Many firms focus upon cases and outcomes without viewing the processes by which they were achieved.

Such approaches require more detailed case studies, some systematised recording and often a revisitation of thinking in subsequent sessions. Reflexivity rarely occurs when simply convened on an ad hoc basis. CILEx, the Law Society and the Solicitors Regulation Authority are quite clear about the value of systematised supervision to maintain standards, and that supervisors must be appropriately trained. Supervision that encourages reflexive practice may require more input, moving the supervisor away from a simple maintainer of standards to something more phenomenological.

Then there are our own opportunities to undertake personal reflection. This is about giving time to undertake the necessary introspective processes to consider not only our practice, but ourselves in relation to our practice. This might involve the keeping of a personal journal, providing a cumulative narrative of one's thoughts and developments. Peers can facilitate this further, where there is an explicit agenda on reflexivity as part of shared learning experiences. Encouraging peer-to-peer reflexivity groups could be an extremely pro-active, valuable practice, especially when facilitated by a senior member of staff who can set the climate for the depth of sharing and understanding needed.

Finally, and potentially least practised of all, is the opportunity for reflexive practice with an allied professional whose practice incorporates reflexivity as a norm, such as a counsellor or a coach. This, of course, will be entirely unnecessary if we can establish practice norms for ourselves and in the organisation as described above.

Conclusion

Reflexive practice is becoming essential for dynamic, evolving professionals to contemporise their work in an ever-changing world, with a knowledge of self and its impact. Sometimes, in the pragmatic, often reductionist world of maintaining quality standards and meeting regulation requirements, it can seem a luxury involving disproportionate amounts of time with dubious output. The reality is, however, that firms which encourage actively reflexive practice have a habit of producing emotionally intelligent lawyers who can tackle the most challenging of legal scenarios, whilst maintaining good outcomes, effective client relationships and high credibility in the socio-legal circles they operate in.