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Wake Up! Speak Up! Shake Up!

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:

  • 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.

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Comments

  1. Jacqueline J. Buyze

    Dear Ms. Munro,

    I am a attorney turned children’s book author and write in response to your post entited: “Wake Up Speak Up Shake Up”. I believe that my books and related educational efforts are an intregal component to Justice Bauman’s call to action. I hope you will consider doing a story, comment, or review on my books/series.

    “A Story of Lawyers™” was written to educate children of all ages, but specifically my nieces and nephews, about the work lawyers do, to honor those who admirably serve our profession, and to help improve public perceptions. At the encouragement of colleagues and friends, the book was published and expanded it into an educational series. The second book, “A Story of Lawyers™ with Views from the Bench”, explains the role of the judiciary in our system of justice. It incorporates most of the benchmark materials found in Sandra Day O’Connor’s icivics curriculum and is being considered for state and national education efforts. A third book, “A Story of Lawyers™ Raising the Bar”, is set for release before the end of the year. It explains the function and purpose of bar associations, the many ways lawyers volunteer in their communities, and programs like Legal Aid that are available throughout the country.

    It is a much easier task to shape a child’s perception than it is to change that of an adult. The legal profession is indeed changing. The future of the profession will be determined by the young lawyers of today. We can help them in their efforts by working through children today.

    If you would like additional information, please feel free to contact me. My phone number and email address are provided below. I thank you for your kind attention and look forward to your response.

    Jacqueline J. Buyze
    Attorney / Mediator / Author
    Phone: 239-404-6926
    http://www.BuyzeMediation.com / http://www.astoryoflawyers.com

    Please like “A Story of Lawyers” on Facebook

  2. I began my foray, as a non-lawyer and self-represented litigant, into the legal system, in the same year that Beverley McLachlin succeeded Antonio Lamer as Canada’s Chief Justice. I now try, with limited success, to recall my naive impression of the legal system in those early days.

    In due course I concluded that the entire system would suffer severely from the results of a spectrum of problems, most notably a profoundly dysfunctional culture. But until much more recently I did not foresee where we are today. Now it is clear. If the system hasn’t already gone over that proverbial precipice, it is very close.

    What about the rule of law? When I first came across that term it mystified me. I thought “rule” and “law” were synonyms, so I went looking for the law of laws. Then I realized that the term is contrasted with “rule of kings”, that is “rule” means “sovereignty”.

    I’ll bet that most Canadians today would still not know what the term means. I’ve read a great deal of rhetoric on it, so when I spotted Tom Bingham’s book at Chapters and perused it I decided it wasn’t worth buying. But in due course I changed my mind.

    I still can’t entirely agree with the reviewers’ praise of the book. Bingham describes the ideal as he sees it in the British context. I don’t know what the reality is in the U.K. but in Canada we are nowhere near that ideal, and I’m sure many members of the legal establishment understand why.

    One of my concerns is that if what I’ve learned about the conduct of the legal establishment becomes widely understood then some people are going to use that conduct as an excuse for serving their own interests without regard to the rule of law as long as they think they too can get away with it.

    Maybe that’s what we are already seeing. Personally, I think the rule of law is the essential prerequisite for a healthy society. And so we have to find a way to commit to getting there. Just because the public can’t decipher jurisprudence and the rhetoric of the legal establishment doesn’t mean they won’t comprehend that they are being deceived.

  3. Carolyn Elefant

    I can’t believe you have judges who can speak so eloquently to change. I am moving to Canada! Great post.

  4. The great increase in the percentage of unrepresented litigants is not due to a loss of public confidence in the justice system. It is due to the unavailability of legal services at reasonable cost. Litigants don’t choose to represent themselves. They have no choice, other than to do nothing about the legal problems that otherwise compel them to go to court without lawyers. They don’t want to suffer the embarrassment of fumbling in court, of coping poorly with rules of procedure, and with the necessary documentation. They don’t want to endure the high probability of losing, and thus being forced into bankruptcy by court costs. And worst of all, having to suffer the family break-up that is caused by extreme financial difficulties.
    The confession that the legal profession is unable to cope is well documented and made patent in the Federation of Law Societies of Canada’s (the FLSC’s) published text, “Inventory of Access to Legal Services Initiatives of the Law Societies of Canada” (Sept. 2012). Our law societies’ “initiatives” it says are of 3 types: (1) self-help; (2) the use of people less competent than practising lawyers; and, (3) pro and low bono. That is a confession of inadequacy that justifies government intervention by way of rolling back law societies’ monopoly over the provision of legal services and the profession’s freedom from government intervention in the provision of legal services. This “Inventory text” abandons lawyers in favour of less competent people, and its best “initiative” is the great uncertainties of volume, availability, and timing of pro and low bono. Such is the nature of such gift-giving because paying clients must come first. This “Inventory text” does not say that its inventory of solutions is temporary. Nor does it say that the FLSC is attempting to meet the problem head-on by way of a solution that will bring the middle and low income client back to lawyers’ offices because legal services at reasonable cost can be developed. The absence of such statements shows that the FLSC does not understand the cause of the problem. That is why the legal profession can be said to be facing its most serious problem ever. It doesn’t know how to make itself relevant again to the legal problems of the majority of Canada’s population.
    Governments can see that law societies have been fumbling totally inadequately for decades. Middle and low income clients are the majority of the clients, and the legal services they need are the majority of legal services needed. And those clients pay the majority of the taxes and have the majority of the votes. Therefore, surely governments fear that the internet, social media, and news media can very quickly make this problem a leading political issue, one serious enough to force an election upon a minority government as exists in Ontario. But apparently the FLSC has no such fears. Wherein its Inventory text is there a reference to the fact that this problem can “go viral” almost over-night, leaving its member law societies with insufficient time to make a persuasive response?
    The cause of the problem is the present method of delivering legal services, which is the “handcraftsman’s” method, whereby the same lawyer or group of lawyers performs all parts of the work necessary to deliver a legal service to a client. It’s too slow and cost-inefficient. Instead, other professions, and all of large scale manufacturing, use the “support services” method, i.e., those parts of any service or product that a professional person or firm or manufacturer is inefficient at performing or making, are given to a specialist or special manufacturer. For example, there are many different types of specialized surgeon for a family doctor to choose from, and automobile manufacturers contract out such difficult parts to special parts companies. The support services method enables everybody to be cost-efficient and make a profit. But not the legal profession. That failing is the cause of the unavailability of legal services at reasonable cost.
    The only example in Canada’s legal profession of such an effective support service is the LAO LAW division of Legal Aid Ontario (LAO). It is a centralized legal support service that has a 34-year history (since July 1979) of success, popularity, and of saving LAO millions of dollars that otherwise would have been paid out on lawyers’ legal aid accounts. It also provides draft document services, and several other support services developed from its initial legal research services. Therefore, it is an example of how the problem can be solved. But, there is no reference to it, let alone analysis of its methods, in all of the reports that have been written, and conferences held concerning this, our most serious of problems. (One exception-Professor Trebilcock’s 2008 report on LAO mentions it at page 41). But why no relevant analysis of LAO LAW? Because those reports and conference speeches were written by lawyers. But the problem is not a legal problem, nor one solved by a more intensive use of previously used solutions, which is what is recommended. Without actual experience solving the problem, we lawyers do not have the necessary expertise. Law societies, left to their own skills, will never solve the problem. Here is the appropriate analogy: a horse-powered transportation system cannot be made to have the capacity, speed, and cost-efficiency of a motor vehicle powered transportation system. But that is exactly what the FLSC and its members are trying to do. Unless support services methods of delivering legal services are adopted, government intervention is required so as to bring back legal services at reasonable cost to the residents of Canada.
    I know these statements to be true and valid because I was the first Director of Research of LAO LAW. Therefore I know the necessary technology well. And, I’ve had the necessary prolonged experience to make it successful. What other lawyer can say that? All other recommendations are therefore speculative. Mine are not.
    But ironically, it is the FLSC that has the necessary solution in its hands. It is the sponsor of CanLII, the Canadian Legal Information Institute, which now provides excellent online access to caselaw (court and tribunal decisions), statutes, and regulations. So the obvious solution is to have CanLII provide the services that LAO LAW provides. But CanLII would provide them to all lawyers and judges in Canada, and in all major fields of law. Therefore, the Ontario and federal governments, being the financiers of LAO, should be very willing to give CanLII, a copy of LAO LAW’s database of materials. And willing to finance the hiring and training of the necessary lawyers. CanLII will provide such services at cost, from which monies the governments’ start-up financing will be paid back. In this way, the problem can be solved in 2013. The legal profession can thus be proud of itself again. So, let us demand that the FLSC be able to publish this, “CanLII support services solution to the problem of the unavailability of legal services at reasonable cost, before the end of September.
    — Ken Chasse, member, LSUC (1966) & LSBC (1978).