Column

Part of the Problem or Part of the Solution?

I’ve been staring at the horizon again. It’s not hard to see that change to our legal system is on the way. Everywhere we turn we encounter reports of things broken or in disarray. 

For instance, access to justice is a pressing concern. Chief Justice McLachlin speaks about it frequently, as does British Columbia’s Chief Justice Finch (see here). They do important work identifying that access to justice has become a privilege of the wealthy. They applaud the pro bono work of the legal profession, and encourage us to work towards innovative solutions.

Meanwhile, legal aid coverage is shown to be inadequate. Respected B.C. lawyer Len Doust recently authored a report highlighting the problems created when our most vulnerable citizens don’t have access to legal services. One of his most telling findings is that we’d save signficant public money if we were able to broaden the reach of legal aid:

… it is very clear that there are very real economic costs to inadequate legal aid. … costs borne by society at large include: costs associated with delays in court and administrative proceedings; increased court operation costs attributable to unrepresented litigants and accused; and, more broadly, costs associated with legal problems that are not resolved in an acceptable manner (including increased health care costs, increased social assistance costs and so on). 

But given the current political climate, I fear that pleas to increase legal aid funding will not meet with success. A recent story in the Vancouver Sun set out some of the problems: budget cuts in court services and the prosection service and significant delays in the appointment of BC Provincial Court judges lead to delays in the prosection of criminal matters, often leading to charges being dismissed because they take too long to get to trial. 

Others have identified the coming changes to the legal profession. In my first SLAW column, I reported on Richard Susskind’s prediction that the legal profession is undergoing profound change. Two forces will drive this transformation: a market pull towards the commoditization of legal services and the development and uptake of new and disruptive legal technologies.

One over-arching issue is complexity and its impact on the rule of law. (Thanks to Simon Fodden for his excellent column on this topic last summer). 

Is one of the reasons that clients are moving away from the profession in droves (either choosing to go it alone, or aggressively seeking to contain their legal spend) because the law has become so nuanced? Has the law become so nuanced that it isn’t really useful any more? 

One good example of an excess of nuance is the strata property regime in British Columbia. Our Strata Property Act runs to nearly 300 sections. There is also an 80-section regulation, and Forms A to Z.1. CLEBC publishes an 1100-page practice manual to explain it all. We also publish practice manuals of similar length for family law; motor vehicle accident claims; company law; secured transactions; real estate transactions, and so on.

Where do we legal publishers fit in all this? Are we part of the solution or are we part of the problem? 

There’s no doubt that we serve the traditional model of legal services: we provide key tools that lawyers need to serve their clients. I’d like to think that at a minimum, we make the situation less dire; after all, as publishers of secondary material, we are actively trying to save lawyers time and money by giving them practical advice about how to handle their work. We provide information about the tiny little details of how to practice law in British Columbia. And our commitment to including precedents in our manuals saves lawyers from wasting time in repetitive drafting work. Feedback from our customers suggests that we’re providing a valuable service by taking much of the guesswork out of the practice of law. 

But our CLEBC practice manuals shouldn’t be confused with public legal education. Our books are written specifically for lawyers, and they discuss the law as it is. We do our best to explain complicated concepts in understandable language, but legal language and concepts can be exceptionally dense.

What’s ahead? There’s no doubt that the use of technology offers some promise. As I write this column, I’m following tweets from the NELIC conference being held at Berkeley. According to the conference description, they are exploring “the next biggest disruptive technologies in the legal industry.” They’re hoping for discussion about the long-term impact of these technologies, and how they might come to be broadly adapted. Topics include quantitative legal prediction, legal automation, legal finance, the design of user-facing interfaces that make it possible for laypeople to manage the law, and startups in the legal industry. I’ll be very interested to follow up on the conference proceedings. 

Legal publishers should prepare to engage with these initiatives; I expect that’s where our future lies. In our publications, we’ve taken the trouble to break down legal transactions step by step; surely this detail can inform the legal automation, legal prediction, and user-facing interfaces for non-lawyers that are being developed now.

At the other extreme, I’m still struck by a New Yorker story about driving in China. Apparently, minor traffic accidents are settled on the street, in cash. Witnesses and other bystanders participate in the discussion until a settlement is concluded. There’s a certain attractive simplicity to this form of dispute resolution; on the other hand, DIY justice is one step away from anarchy.

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