The Importance of Evidence-Based Practices in Civil Justice System Reform

In a previous column, we described the Canadian Forum on Civil Justice’s Inventory of Reforms, a freely accessible, online database that contains descriptions of civil justice system reform initiatives from across Canada. The importance of this information is not only in letting people within a jurisdiction know what is changing, but also letting all jurisdictions across the country see what is being tried elsewhere. The natural extension of this is the ability to identify the most effective reforms so that they can be highlighted and applied elsewhere, though this function is naturally the most challenging to put into practice.

In setting out the scope of the Inventory when it was initially developed in 2006, we specifically avoided claiming that it would be a collection of best practices. An article by Ingo Keilitz, “No More Best Practices,” does a good job of discouraging the use of this term, on the basis that no practice can really be determined to be the best one; continual measurement and improvement is required. Instead, Keilitz suggests using evidence-based practices, which “…are programs, strategies, or procedures for which there is demonstrable evidence that their use produces desirable performance outputs and outcomes.”

Evidence-based practice is increasingly used in fields from medicine to librarianship, with a focus on setting out measurable criteria that can be used to determine the effectiveness of a particular practice. In a recent article, “Evidence-Based Access to Justice“, Laura Abel of the Brennan Center for Justice at NYU School of Law highlights the lack of evidence-based approaches in evaluating access to justice initiatives in the civil justice system, and proposes that legal help lines and information centres could be measured in terms of a demonstrable impact on the ability of a self-represented litigant to manage – and win – a case.

It is far beyond the scope of the Inventory project to carry out a meaningful evaluation of the reforms it describes; such measures need to be woven into the design and implementation of the reforms themselves. However, reforms are increasingly being implemented with evidence-based metrics as a fundamental part of the design and execution. Where this is in place, the Inventory describes the evaluative framework, and what the outcome of the evaluation was.

It is hoped that other jurisdictions are able to make use of these evaluations (taking into account different contexts) to consider whether the reform, or something like it, would benefit their province. Progress necessarily involves some experimentation, and not all reforms will prove to be equally effective in increasing access to civil justice or reducing costs. It is not as easy as simply assembling a list of best practices, but the ability to evaluate and share information about what can be shown to work has strong value for creating effective, long-term change. 

Bradley Albrecht

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