Jordan Furlong published another great column recently about how the word the word "disruption" is being used to describe many changes in legal practice and technology. He points out that the word is most often used to describe legal process innovation. The comment boards lit up with discussion of what may or may not be disruptive. I agree with Jordan and other commenters that improving legal process or process innovation is not really disruptive. Examples of legal process innovation abound, but they mostly just introduce efficiencies into practice (for example, by standardizing steps in common procedures). On the other hand, new technology such as Neota (which seeks to replace legal analysis with programming) and the online dispute resolution program developed by HiiL (well described in this blog) may well prove to be disruptive.
But disruptive forces are at work in the world around us. They couldn't have been highlighted more clearly than in recent remarks from BC Supreme Court Chief Justice Bauman. When he accepted an award recently from the BC Trial Lawyers Association, he exhorted BC lawyers to "Wake up! Speak Up! Shake Up!". He went on:
We as lawyers, as you well know, are facing significant challenges these days: access to justice issues are daunting and potentially fatal to our profession as we know it. Similarly, public confidence in our profession and in its institutions, especially the Courts, is a continuing challenge.
Richard Susskind famously asked in his book: The End of Lawyers? It is today the very question we should ask ourselves. The willingness of government and the public to abandon lawyers and the Courts as the dispute resolvers of choice is startling and disturbing. As a profession if we are not accessible and accountable and importantly, seen to be, we risk the possibility of losing all relevance.
I believe that Chief Justice Bauman has identified the real source of disruption. And the change is not coming from within the practice of law (for instance, by introducing process efficiencies). This disruption comes from a change in society’s attitude to the legal profession and the rule of law. How can we tell that public confidence in the legal profession has diminished? A few examples:
- The number of self represented litigants in our courts is staggeringly high. According to a recent position paper from the BC Branch of the CBA, in BC’s Provincial Court, 90 to 95% of family law matters have at least one unrepresented party. Even in the BC Court of Appeal, self-represented litigants appeared on 27% of civil cases and 21% of criminal cases.
- In 2012, the BC government passed the Civil Resolution Tribunal Act. The Tribunal will be a new dispute resolution and adjudicative body with authority to hear some strata property disputes and, where the parties agree, small claims matters. Section 20 of the Act states that parties are to represent themselves. Lawyers are only allowed to participate as set out in that section.
- In response to concerns about access to justice, the Law Society of BC recently changed its rules to allow an increased role for paralegals working under the supervision of a lawyer. Paralegals may now appear in court and give legal advice in specified circumstances.
In some ways, the legal profession is in an exceptionally difficult position. When we speak up in favour of the rule of law and our justice system, we run the real risk of appearing to protect our vested interests and to be afraid of any change. We may understand and believe that we are protecting the very foundation of our society: the rule of law, but our society tends not to view issues through that lens. This is much more than an image problem.
My worry is that as a society we are now turning away from the rule of law, lawyers, and even from the justice system. Will our society start to see the rule of law as an expensive luxury rather than an essential foundation to our economy and our society? If you want a bracing look at what happens when the courts aren't supported by the government, read this excellent NY Times series about the crisis in the Bronx criminal courts.
In British Columbia the legal profession has been proactive about speaking out:
- The Law Society of BC is very clear about the importance of the rule of law;
- Gordon Turriff, QC, used his term as President of the Law Society of BC to speak out about this issue; he traveled throughout the province and around the world to deliver the message.
- The BC Branch of the CBA has developed an excellent platform document: Agenda for Justice. This thoughtful platform sets out the key justice issues in BC, with proposed solutions.
- In late April, the CBA is holding a summit on “Envisioning Equal Justice Summit: Building Justice for Everyone”; this ambitious program is designed to address practical steps forward on access to justice initiatives.
And Chief Justice Bauman has good advice for us. He encourages lawyers to renew our dedication to serving the public, embrace change, participate in access to justice initiatives, mentor young lawyers, and continue our long tradition of community service and involvement in political life. All this and more will surely be needed if we are to ensure that the disruption around us results in healthy change.