ABA President Michelle Behnke on How We Talk About Justice

Episode Notes

Transcript

Michelle Behnke:

We have to explore lots of different areas and ways of finding solutions, and it’s not likely one size fits all.

Announcer:

Equal access to justice is a core American value. In each episode of Talk Justice, an LSC Podcast, we’ll explore ways to expand access to justice and illustrate why it is important to the legal community, business, government, and the general public. Talk Justice is sponsored by the Leaders Council of the Legal Services Corporation.

Ronald S. Flagg:

Hello and welcome to Talk Justice. I’m Ron Flagg, president of LSC and your host for this episode. Joining me today is Michelle Behnke, President of the American Bar Association. Michelle, like me, helps from the great state of Wisconsin, where she is a member of the Boardman Clark Law Firm in Madison. Prior to joining that firm, she was the principal of the firm, Michelle Benke & Associates, where her practice focused on business, real estate, and estate planning. Michelle has previously served in many facets of the ABA, including as treasurer, as chair of the Commission on Racial and Ethnic Diversity in the profession and on the board of governors. Michelle has been elected into the American Law Institute, the American Bar Foundation Fellows, the Wisconsin Bar Foundation Fellows, and the American College of Real Estate Lawyers. She has also served as president of the International Women’s Forum, Wisconsin.

Michelle, it’s great to talk to you today.

Michelle Behnke:

It’s great to be here. Thanks for having me.

Ronald S. Flagg:

I want to start with a question that I like to ask other lawyers. What sparked your interest in the law and led you to this career?

Michelle Behnke:

So I had no lawyers in my family. I knew nothing about law, but a guidance counselor in high school was the one that actually put the bug in my ear, so to speak. I was down in the guidance counselor’s office. I know this will come as a shock to people, but I liked to talk. I talked a lot in high school and I liked to debate. And one day she said, “You should be a lawyer.” And I had no idea what that meant, but one of the questions that gets asked all the time when you’re in high school is like, “What are you doing next? Or what do you want to be? ” And when I said I wanted to be a lawyer, I got really positive responses. I didn’t know why, but I got really positive responses. So I just kept saying it. And when you finish high school and you go to college, people are going, “So you’re going to be a lawyer, right?” And I was like, “Yeah, sure, sure.” So I backed into it by the suggestion of a guidance counselor.

Ronald S. Flagg:

But for those chance meetings and events in our lives, we don’t know where we’d end up.

Michelle Behnke:

Exactly. Exactly.

Ronald S. Flagg:

Here’s to that guidance counselor.

Michelle Behnke:

Yep.

Ronald S. Flagg:

So at the recent midyear meeting of the ABA, you spoke about the nation’s 250th anniversary, and your message for the legal profession was to think about the role lawyers have historically played in solving problems and in mediating differences. And you encouraged lawyers to model the respectful adversarial conversations that help us address our biggest challenges. Your remarks really resonated with me because ICLSC as a great example of bipartisan collaboration to address a major challenge,

One that lawyers and members of the judiciary work to create. LSC was created in 1974 with the support of the ABA and it’s then President Lewis Powell, later a Supreme Court Justice. And we were created through the shared commitment of members of both political parties. And we have now spent more than 50 years advancing access to justice while continuing to receive strong bipartisan support, including most recently in January when our latest appropriation was approved. So this is just one example of the theme that I think you sounded at the midyear, but I really agree with you about how important constructive and respectful communication is. So my question to you, and I apologize for the long wind up, how can those of us in the legal profession better collaborate across divides to advance solution to the problems facing our justice system?

Michelle Behnke:

So I’ve given this a lot of thought, and I have to say, I’ve drawn on some of my own experiences. Sometimes somebody would say something to me and I would experience what they said, I’d perceive what they said, and I had certain ideas about what they were saying, and sometimes it wasn’t a positive intent. And so I would be a little riled up and I would kind of go into lawyer mode, ready to argue back. What I have been thinking about is that we need to be more curious. So when somebody says something to you, rather than crafting your counter argument, I think you need to start with, “Tell me more.” Help me understand where that comes from. I think what’s missing at the present moment is we really don’t understand each other and we really are spending a lot more time arguing. When I have asked people, “Tell me more.” When I have asked people, “Help me understand how you think about this.

” I’ve often, not always, but often found that my perception, my lens was not exactly spot on. I may have perceived some of what they were intending, but to the extent that I was attributing bad motive or ill intent, it’s usually not as strong as I perceived it. And when I don’t go to arguing, we actually can have a pretty good dialogue and we usually find something on which we agree, which allows us to keep the conversation going. That’s kind of a long wind up to say. I think if we are more curious, we will be able to engage in more substantial dialogue, which will actually help us find solutions or at least crystallize the problems that we might both be trying to solve. As lawyers, we’re really good at going to the argument, but I think if we take a beat and ask the questions and we’re more curious, we’re actually likely to be a little better at the problem solving.

Ronald S. Flagg:

I think that’s great advice. Listening rather than formulating a counter argument is really important, whether it’s across the table as lawyers or as human beings in other circumstances and settings. I was thinking back on when one of your predecessors as ABA president, Deborah Enoch Ross, joined me on a podcast, I think it was two years ago. And one of the things we talked about was a theme that Deborah advanced cornerstones of democracy. And the final report from that initiative came out earlier this year. It’s called Lawyer As Public Citizen, Collaboration, Civics, and Civility. For the Report, lawyers were polled about whether they agreed or disagreed with certain statements. Something they had broad agreement about was the following statement, and I quote, “We need new ways to talk about justice that resonate beyond legal circles or political tribes.” That, again, resonates with me as well. We need to speak to other than members of our choir.

How can we help people outside the legal sector understand that justice is not some abstract, lofty idea or some sort of partisan issue, but a functional part of all of our lives? What makes justice resonate with the general public?

Michelle Behnke:

I think that phrase, that sentence, that sentiment resonates with me as well. During this year, we’ve been talking an awful lot about rule of law, for instance. And as lawyers, if I use that phrase once in a speech, I use it probably five times. As lawyers, we think we know what that means, but if I’m in the grocery store and I’m talking to my neighbor and I say the rule of law, side note, I do actually say that word in the grocery store. They often will nod, but you can kind of see in their eyes that it is not resonating in that same way. And so what I’ve been thinking about a lot this year is that same question, how do we make this real? And I think we have to break down the components of what we mean by the rule of law, and we have to talk about it in everyday terms.

So instead of saying the rule of law is vitally important to our democratic system of government, I talk about people like if you got into a car accident and you were injured, you expect that you’d be able to go into court, you’d be able to seek compensation for your injuries. And if your neighbor had that same incident, you’d expect that your neighbor would be able to go into court and seek compensation for their injuries. And you would expect both of those cases to be handled in the same way. You wouldn’t expect because you live in a blue house that the judge would throw you out of court, and if your neighbor lived in a red house, they would somehow get millions of dollars of compensation. You expect the same outcome. You expect the same rules to apply to everybody. You don’t expect that because one of you makes one amount of money a year and another makes a different amount of money, that the rules are completely different, that it’s chaotic.

And when I talk about it in those senses, you want to buy a house and you enter into a contract and you want to end up with the house. When you make it real experiences that they’ve had in their life, then they seem to get what we’re talking about when we talk about the rule of law and why our system of government applying equally to everybody matters.

Ronald S. Flagg:

Yeah, I think you’re absolutely right. I think the value of telling a story is so much more powerful than referring to abstract terms that we as lawyers are fond of. But if you can bring an example involving housing or family issues or trying to climb from under medical debt, then all of a sudden the light shines and people understand what you’re talking about.

Michelle Behnke:

Exactly.

Ronald S. Flagg:

Exactly. Along these lines, something I think about a lot is the fact that many Americans mistakenly believe because of the spotlight on criminal law in media and entertainment outlets, that they have a constitutional right to an attorney in civil court. Unfortunately, I think probably most of us have seen numerous episodes of Law and Order or all of its sequels. And so in each of those episodes, people are read their rights to have an attorney appointed and they assume that if you lose your house or you face the loss of a child or the loss of your veterans’ benefits, that they’ll read you your rights to an attorney. What can we do to increase public understander other than perhaps creating a civil court version of law and order?

Michelle Behnke:

So in Wisconsin, you may know that actually for a little while, we really were talking about a civil Gideon, a right to that council, even in civil matters, so that theoretically there would be a Miranda type reading that would say, “If you’re dealing with these civil issues, you have a right to legal counsel.” Short of that, again, I think it’s storytelling and I think it’s trying to make it real for people. We in the ABA go to Washington every year to lobby in support of LSC. And when I first started going, I would talk to my legislators and I would say to them, kind of in this very moral, the world needs to be right and people need to have this assistance. What I realized was talking about it kind of in a business sense actually tended to work better. And so when I talked about the kinds of issues that people faced and having to navigate that without counsel and kind of the horrible outcomes that could arise, and maybe even more, not just the horrible outcomes that would happen for those clients, but how the system gets clogged down, then people seem to understand the importance of getting people some assistance and helping them through these really critical life issues.

Ronald S. Flagg:

Yeah. We’ve certainly, over the last decade in our advocacy with legislators have really emphasized that it’s a constituent service.

Michelle Behnke:

Exactly.

Ronald S. Flagg:

It’s their constituents who have these housing and family issues and medical debt issues. And when those constituents call members of Congress and they’re able to refer them to legal aid, that’s a huge plus for those constituents as well as the system, as you said. Michelle, you spoke at our event in Madison for the release of LSC’s Rural Justice Task Force Report last October. It was great seeing you there and

Announcer:

We’re

Ronald S. Flagg:

So grateful that you took the time to join us. The report discusses in part one of the major topics that the legal profession is grappling with today and for a long time, legal deserts. When we’ve made lawyers a vital resource for justice and uneven distribution of them throughout the country is a big problem. And Wisconsin mirrors those issues in terms of the population centers and urban areas and smaller populations in rural and other far flung areas. Where should the legal profession invest our efforts to address legal deserts and how should we address those?

Michelle Behnke:

Well, I think, again, as lawyers, we look for a solution, the solution, the perfect solution. And I think what I heard and understood through the program was that there isn’t likely going to be one. And so I think what I would say is that we have to explore lots of different areas and ways of finding solutions, and it’s not likely one size fits all. During the course of our program, we talked about community justice workers. Other places have looked for, I’ll call them specialists, people who do some very unique things like veterans benefits. That work by itself may not be something that a lot of lawyers know how to do or are familiar with. And so somebody who specializes in that can be especially effective. Some places are encouraging lawyers to go to more rural areas, supporting them with stipends and things of that nature to encourage people to go to these places that might actually allow you not to have to bill a ridiculous number of hours per year, but also connect you with a community that needs representation.

AI is another thing that people have talked about and thought about, and are there ways that we can deploy AI to provide some assistance and guidance? So I don’t have the perfect answer because I don’t think there’s one solution for how we do this, but I do think that lawyers have to be open to looking for the variety of solutions. We can’t simply say, “We’ve always done it this way.” And having one lawyer represent one person all the way through their case is the one way in which this issue will be resolved because there just aren’t enough lawyers to go around.

Ronald S. Flagg:

No, you’re absolutely right. LSC did a justice gap report a few years back and found that 92% of the problems affecting low income Americans receive no or inadequate assistance. So the status quo is not serving many people well. And so we need to be open-minded about potential solutions as you suggest. One of the topics you mentioned, artificial intelligence is of course a major topic that lawyers among others are talking about right now. What’s your personal perspective on the use of AI by lawyers and what do you see as the role of the ABA here in guiding lawyers through uncharted waters?

Michelle Behnke:

So when I first heard about AI, I was actually running for this position and literally from my first speech to the nominating committee when I used the word ChatGPT and people literally were looking at me like I was speaking Italian. To my second speech, which was six months later, everybody knew what AI was and they were all kind of wringing their hands already about what effect AI was going to have on the practice of law. I personally have kind of moved in my thinking. It seemed really scary and foreign. As a transactional lawyer, I do a lot of drafting and the thing I think I hate the most is a blank piece of paper, getting things started. How am I going to organize this? And that’s something that AI does very well. Once I have things on a piece of paper, I can edit the living daylights out of that document.

You might not even recognize full paragraphs. There might be a few ands and those that remain, but it speeds my ability to get to the editing. So I love AI in that respect, but I will say we do know of some of the shortcomings. It is still evolving. We’ve all heard the cases of hallucination cases that are cited and we know that AI was created based on kind of algorithms and data. And within our society, the majority of that data comes from one segment of the population. And so those things might not always be true for other segments of the population. And we have to be cognizant of that and kind of think of how we can supplement or fix those things as we’re working with AI. The ABA’s role, I think, is to help lawyers understand what the parameters are, what the dangers are, how to use it effectively and ethically.

If you look at the rules of model conduct, it requires lawyers to be competent, and that includes being cognizant of and being able to use the current technology. I know this will sound like one of those war stories, but when I first started practicing 38 years ago, not everybody had a computer on their desktop. And when it was coming out and when some firms were starting to add those, people just thought this was the end of law as we knew it. I mean, lawyers were going to become typists and we weren’t going to be drawing on our massive skill and acumen, et cetera. Now, if you walked into somebody’s office and they didn’t have a desktop or a laptop, we’d be scratching our heads wondering whether they were actually competent in practicing law. So the ABA’s role is to help lawyers understand what the shortcomings are, how to use it, how to stay, keep your client’s information confidential, uphold all those rules that at its core, we believe to be important for the practice of law, but to get with the program, so to speak, to keep progressing as technology progresses.

Ronald S. Flagg:

Well, it’ll be interesting to look back on this conversation in five years and see where we are. I suspect that we’re going to be in a very different place than any of us thought.

Michelle Behnke:

I agree. I agree.

Ronald S. Flagg:

Michelle, ABA Day is just a few weeks away. And if anybody doesn’t know, ABA Day is when lawyers take to Capitol Hill to advocate for issues important to the legal profession. And for decades, a primary focus of ABA Day has been highlighting the importance of funding for legal services. I want to underscore that we at LSC are very grateful for this partnership and for the fact that ABA leadership is so outspoken about supporting civil legal services and puts such a high priority on it in its own advocacy. We’ve sort of talked about this already, but I think it’s worth revisiting. In your opinion, what’s the most compelling way to make the case for robust investment in civil legal assistance?

Michelle Behnke:

From my vantage point, the most important is to help our congressional members understand that that investment is not a handout. It’s really, as you say, an investment. It’s an investment in our system of government. Show them how a lack of representation, a lack of assistance actually affects not just the people that are in the courtroom or that are seeking the assistance, but the entire system. As you mentioned earlier, help them understand how this affects people in their district. We always take our maps and we show them the legal service entities that are operating in various parts of the state and how many people in their congressional district actually get assistance through this program. If they understand this isn’t a Wyoming issue or a New York issue, but it’s homegrown folks in Wisconsin, that makes a difference. I try to help them understand how much more pro bono lawyers can do when they have those LSC entities that have that expertise and can provide training to lawyers, can provide support and resources to lawyers, that increases the number of lawyers that can actually provide pro bono.

Congressional members always like the idea of thinking that they’re getting lawyers to provide some free legal services. So I encourage them to think about that as a component. I try to help them understand that civil legal service representation helps people avoid other issues. If you’re in there and you’re helping somebody with wrongful termination, right? They come in for wrongful termination, but if you help solve that problem, you’ve probably also helped to solve them getting evicted from an apartment. And if you solve help keeping them from being evicted, then those folks are perhaps not needing to draw on public benefits for food and housing, et cetera. So there’s a ripple effect, or conversely, a multiplier effect that when you provide this assistance, you’re actually preventing some of the other harms that cost a great deal of money on the system. And then if all else fails, or just to guild the lily a little, I talk about how much better the court system in particular operates when people have representation.

And so I’m a business lawyer. If I’m there and you’re paying me whatever you’re paying me per hour, and we have to sit and wait because somebody ahead of us in that case doesn’t have representation and doesn’t know how the system works, the judge is going to take more time. The judge is going to try and help make sure that this gets done properly. And so while you’re waiting and you’re paying your lawyer, that doesn’t come out well for you. So there are just myriad ways of showing them how beneficial it is to have people have proper representation, and it really affects the entire system.

Ronald S. Flagg:

Well, Michelle, we’re so lucky to have you as our lead advocate on ABA Day this year. It’s really been a pleasure to talk to you today and thanks for joining me. And more importantly, thank you for your leadership and your partnership in our shared access to justice goals between the ABA and LSC.

Michelle Behnke:

Thank you. This has been great fun.

Ronald S. Flagg:

And many thanks to our listeners for tuning in to this episode of Talk Justice. Be sure to subscribe so you don’t miss an episode. In the meantime, stay well.

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