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The Access to Clothing Crisis

Access to Clothing[1] is a complex issue that seems almost impossible to effectively address. Some consider it one of our most pressing issues[2]. The well-off continue to be able to afford appropriate clothing for all occasions. The least fortunate amongst us are able to access free or subsidized clothing to be worn during the most important events in their lives. The middle class cannot afford to purchase clothing at all.

To the great discomfort of businesses, restaurants and hosts and hostesses everywhere, most members of the middle-class have given up wearing purchased clothes entirely. Many people now wear home-made clothing that is barely adequate[3] for most occasions. Public policy analysts refer to this group as the self-clothed. Many other people eschew clothing entirely. These are the unclothed.

The Tailor’s Guild is naturally very concerned, being good professionals, and also being faced with public criticism from the best-robed members of society. Tailors have encouraged their apprentices and journeymen to work in pro-bono clinics as duty-tailors. But there still remain far too many self-clothed and un-clothed.

Naturally, this problem has not gone unnoticed. There has been much discussion amongst the great and the good given the fundamental importance of clothing. One approach has been to focus on the modern trend for clothing that is unnecessarily expensive. There is much merit in this analysis as it is difficult to understand why tuxedos and ball gowns have come to be required in shopping malls and bowling alleys. We may have come to require fancier dress than is actually fit for purpose.

Many tailors do not accept that the self-clothed and un-clothed can be making reasonable choices. Clothing is fundamental. Tailors charge fair rates that reflect their training and expertise and which allow them a reasonable standard of living. To earn a living at the hourly rates that the self-clothed and un-clothed could afford to pay would mean working 60 hours a day. Even increasing leverage by hiring more apprentices and journeyman does not reduce the blended hourly rates sufficiently.

The Tailors’ Society is naturally concerned as well. Effective regulation in the public interest requires ensuring Access to Clothing. But it is also important that professionalism be maintained. The tailor-client relationship is highly important. It is well understood that one’s clothing is a fundamental aspect of one’s identity and that tailoring fit clothing requires the exercise of professional judgment taking into account the particular shape and character of the client.

In order to protect the public, it has been thought best to require that tailors own and control all tailor practices. Who but tailors could be trusted with knowledge of intimate client measurements and preferences? Tailors have, understandably, been prohibited from sharing any of their hourly rate revenue with anyone except other tailors. Perhaps for this reason, most tailors practice in sole practice or with several other tailors[4].

Some have suggested that modern production processes and technology could be used by tailors to produce cheaper “off-the-rack” clothing at a lower cost . While some of the large tailor firms have made progress using project-planning tools and by garment process outsourcing, the tailors serving individuals in sole practice and small firms do not have the experience, expertise or the capital to innovate outside of the hourly rate framework. And those in the business and technology world have little interest in tailoring. They cannot invest in tailoring practices and tailors cannot share fees with them.

But all is well. There is no perceived demand from tailors for new practice structures. The importance of clothing to self-identity makes it absurd to think that proper clothing could be designed and manufactured with the assistance of computers, production lines and the like. How could anyone be able to obtain clothing that sufficiently suited client size, shape, personality and intended social usage except from expert bespoke tailors[5] who spend the time needed to do the job.

Members of the Tailors’ Guild and the Tailors’ Society continue to work closely together to address the Access to Clothing issue. Despite new-fangled names like Target, Gap and Lululemon showing up in other countries, it is difficult to imagine how Access to Clothing could be addressed by such radical approaches.

While lawyers and bespoke tailors obviously have entirely different practices, tailors interested in this issue might consider a thoughtful analysis of the effect of regulation on innovation in legal practice by Ray Worthy Campbell entitled Rethinking Regulation And Innovation in The U.S. Legal Services Market as recently reviewed by Professor Laurel Terry in her blog post Creative Destruction and the Legal Services & Legal Education Markets.  Lawyers will be aware of the early innovators that presaged change in the legal services market such as Axiom Law, Contract Express, the Co-operative, CPA Global , Legal Zoom, Quality Solicitors, Riverview Law, Rocket Lawyer, Slater & Gordon, Winn Solicitors.

But, there is no reason to think that the market for clothing could or should change as the market for legal services has changed or that innovation is affected by current regulation of tailors.

We must continue to work together to address the Access to Clothing (A2C) crisis[6].


[1] Sometimes A2C for those in the know.

[2] Badum, Badum

[3] Ibid.

[4] Some tailors, who design and sew military, religious or other uniforms for corporate clients, establish larger firms of tailors which allows them to specialize. Some tailors spend their time designing and sewing complicated epaulettes. Others design and sew the elegant designs in beautiful cloth. There are relationship tailors and tailors who ensure that the work of the specialist tailors suits overall client requirements. It is a great challenge to plan and manage the work of so many skilled craftspeople.

[5] Similarly, the suggestion of expanded scope of practice for para-tailors to assist the self-clothed and unclothed is easily rejected. The essential issue is not really not Access to Clothing but rather Access to Proper Clothing. It is not reasonable to think that anything less than expert tailoring could be sufficient given the importance of clothing.

[6] The opinions expressed in this article are not the opinions of the Tailors’ Guild, the Tailors’ Society nor necessarily those of the author.

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Comments

  1. Malcolm,

    Very clever and very cute, but:

    “The middle class cannot afford to purchase clothing at all.” – from the sources from whom they want to purchase the clothing, believing (for whatever reason, more often than not incorrectly) that their preferred sources are their better choice. It’s a labels issue. The middle class isn’t prepared to shop on Canal St, even when Canal St is more than adequate.

    Funny thing about those bespoke choices though. They’re too often the Emperors’ new tailors. Or, if they’re not, they’ve outsourced the work to the same sources as the Canal St. vendors.

    “Tailors charge fair rates that reflect their training and expertise and which allow them a reasonable standard of living.” – Reasonable as defined by the tailors. Others might not agree.

    “To earn a living at the hourly rates that the self-clothed and un-clothed could afford to pay would mean working 60 hours a day.” – Shouldn’t that have been: “To earn a living which supports the lifestyle the tailors consider reasonable would mean …

    Some might suggest that this amounts to nothing more than the claim that, since tailors have worked long and hard to acquire expertise, they should be allowed to charge amounts they think reflects their perceived value of their work. (I suppose Groucho had something to say about this. Certainly Karl did. I don’t know about Chico, Gummo and Zeppo. Harpo was always tooting his own horn.)

    “How could anyone be able to obtain clothing that sufficiently suited client size, shape, personality and intended social usage except from expert bespoke tailors[5] who spend the time needed to do the job.”

    The real question is how to fund those tailors. If the members of the Tailors Guild really believe that access to adequate legal – oops, I mean tailoring – services is a basic entitlement, then they and the Guild should be in favour of a publicly Piece Corps..

    But, then, we both know what has happened (at least in Ontario) whenever it’s been suggested that there be a Public Tailors Guild (even on the criminal side such exists in the former colonies to the south.

    It’s be(en) spoked.

    Cheers,

    David

  2. Malcolm Mercer

    Thanks for the comment David. Of course, there is much in your c0mment with which I agree and much within my article with which I don’t!

    A key thought that the article tries to express is that the means of production (i.e. lawyers spending time on client problems) is inherently self-limiting. While bespoke work based on professional time spent (legal or tailoring) is the appropriate means of production in many legal contexts, it seems to me that technological and business process innovation would allow means of delivering legal services other than just by lawyers time. This is the point of analogy to the off-the-rack clothing as opposed to bespore clothing. It seems to me that, in some contexts, legal expertise can be built into the technology or the business process so that the “hours” aren’t spent each time for each consultation. In this scalable way, the unit cost of service is reduced without devaluing the expertise. Yet, our current regulatory model does not allow for such innovation.

    Your essential point (i.e. that the issue is funding) is a perfectly fair one where the current means of production is the best means. Criminal defence is the perfect example and funding is an important point there. The other (most applicable in family law) is that the process may be unduly complex (more fair than necessary and affordable i.e. ball-gowns in bowling alleys).

    Malcolm

  3. Dr. Emir Crowne

    Oh what privileged, Western lives we live when can equivocate between clothing and justice, without any regard to the fact that access to clothing is indeed a “pressing” social issue.

    The Emperor isn’t the only one without clothes…

  4. Thank you Malcolm! This is a brilliant piece. Humour often helps us to step back and look at our current situation with new (and hopefully more open) eyes – to see things from a different perspective. I love that you took Richard Susskind’s use of the category of “bespoke” services to a new level. We definitely need to reform and expand the types of processes available to the public and move away from the hourly billing model! Thanks again. Kari

  5. Julie Macfarlane

    In my recent study with Canadians who cannot afford clothing – or in some cases are wearing clothing that is ill-suited for their climate, or just plain bad taste – I found that many of them questioned why fashionable and climatically suitable clothing was priced out of their reach. Most assumed that this was because tailors had sufficient wealthy clients that there was little incentive for them to innovate with less costly approaches to tailoring. Some of my study respondents reflected that their own, earlier investment in costly clothing was a source of revenue for tailors who then left them on their own to finish the job. Their major complaint was that tailors seemed less interested in ensuring that people are well-dressed and more interested in their bottom lines.

    Strangely, at the same time there is a growing crisis in unemployed newly trained tailors which the industry seems only slightly concerned about (possibly because the leading tailors are fully employed). Some have suggested that these unemployed or under employed tailors could offer innovative services to less well off clients. This seems like a reasonable possibility given the unmet demand for affordable clothing.

    Of course, there are tailors who try to offer alternatives to less well off clients. Some go to lengths to find cheaper fabrics and even take personal losses to ensure that they can dress their client appropriately. What is interesting however is how little impact these acts of kindness have on the practices of the tailoring industry as a whole. They are still regarded as marginal, aberrant even and tolerated only as long as they do not encroach on the assumptions held tightly by the profession – that “real” tailoring is bespoke work (even when many clients all seem to end up with a very similar set of clothes); that it the business of highly qualified professional;, and that there are no real alternatives. After all, if you shop for your party wear at Target you cannot expect anyone to take you seriously at those parties.

  6. Malcolm Mercer

    Thanks for these comments.

    I’m particularly pleased that Professor Macfarlane has taken up the A2C torch. Those interested in valuable empirical analysis of analogous unmet needs should read The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants Final Report May 2013 by Professor Macfarlane at http://www.representing-yourself.com/doc/report.pdf

  7. mercer – noun – Middle English – a dealer in textile fabrics, especially silks and other costly materials – The Shorter OED on Historical Principles.

    Once upon a time there was a valley called Tailorland. Most of the people there already had fine sets of clothes and verily that was good. From time to time, some of the people needed additional apparel for everyday activities. They were able to acquire such apparel from highly skilled craftspeople known as solicitailors who were readily accessible in communities throughout the valley and who delivered, by any measure (!), very high quality clothes at very reasonable prices. For those buyers, there was no access-to-affordable-clothes crisis whatsoever.

    From time to time, some of the people in Tailorland got themselves into arguments, duels and other adversarial, disputatious pickles. They often needed clothes that would allow them to repel attacks and smite enemies. They would buy chain mail tunics, suits of armor, heavy leather jerkins, hobnail boots, shields, maces, those little swimsuits worn in silly mixed martial arts nuggie fests, and so on.

    To buy such outfits, the people had to go to a type of craftsperson known as a barristailor. Now the barristailors usually did good work, but they were harder to find, not as conveniently located, and they frequently charged the very arm and leg that they were dressing.

    Barristailor outfits were very expensive to make (even the silly little swimsuits), and they remained expensive partly because of why they were needed in the first place but mostly because the market for them was, unlike the market for solicitailors, quite astonishingly dysfunctional. This dysfunction was partly the fault of the barristailors themselves but mostly the fault of the government of Tailorland which, despite good intentions, repeatedly bungled the structuring of the dispute resolution system through poor analysis, misconceived tinkering, and both benign and malign neglect.

    Finally, some people became concerned enough about this that they made changes to how tailors in general operated their businesses. They launched attacks against the solicitailors who were blameless. This was just what the barristailors needed to deflect attention away from the barristailor side of the equation. In the end, the solicitailors were decimated and the plodders who replaced them ended up delivering far inferior products at far higher prices – which was exactly what had happened one valley over. Strangely, no lessons were learned from the awful experience in the neighbouring valley. Instead, the errors there were copied holus bolus. Readily at hand were far, far better solutions to the access-to-affordable-barristailor problem, but they were ignored. The solicitailors understood why the better solutions were ignored, but they were badly under-represented at the decision-making plena, kept that way, and marginalized.

    Of course, the barristailors just carried on as before, except they began to allow non-barristailors to own almost half of their firms. In the scheme, a giant, non-barristailor cat could own 49% of a firm while the other 51% would be owned by 102 scurrying barristailor mice each one of whom owned 0.5% of the firm. Eventually, the cat was able to dictate to the mice how to run the firm. All the cat had to do was co-opt 4 of 102 mice to achieve control.

    All the people of Tailorland were badly harmed by all this arrant foolishness, but the harms took some time to develop and become apparent. As a result, the people who brought about the changes were long gone when the harm hit and were never held accountable for the wreckage they had wrought.

    The End (for now).

  8. The unclothed and the self clothed kept getting sunburnt and frostbite (not on the same day, obviously) and blamed the tailors, saying it was their fault and they should do something about the weather, so that they could continue to be unclothed or self clothed and not “waste” their money on purchased clothing. “Clearly”, they said, “the tailors are perpetuating this ‘weather industry’ just to give themselves a job!”

    Eventually, the self clothed, the unclothed and the tailors all realized that a compromise could be reached. Purchased clothing was needed on many occasions, but, it was also possible for people to be self clothed on other occasions. (But never unclothed – yuck! Put a shirt on!) So, the tailors began welcoming customers who only wanted to purchase specific items, instead of the entire wardrobe. And, the self clothed realized that they could not do it all on their own – and that they had to spend money from time to time to properly go about life in the weather.

    The End

  9. Compounding the problem in Tailorland, on the barristailor side, is that the absence of any tailor willing to help the patron sometimes means that, at Fashion Week, the judges aren’t able to see past the clothes and model to the message.

  10. Julia Hincks, Kevin Quong and Kate Parisotto

    We are three apprentice tailors, who have just been handed needle, scissors and thread.

    As you noted, many people are now self-clothed, or wearing “home-made clothing that is barely adequate for most occasions”. One of the reasons for this may be that there are few resources to help people craft clothing that would be adequate, meaning that the self-clothed are often at a disadvantage when attending social events with those in fancy dress. Perhaps if tailors could also work to create additional resources to help the self-clothed, such as publicly available patterns to sew from, the self-clothed would be better able to hold their own when appearing at social events wearing clothing that they themselves have crafted. Unfortunately, this is still more akin to sewing a patch on the torn knee of a pair of jeans than to fixing the access to clothing issue. To mend the access to clothing problem, changes to the tailoring system as a whole, and to the system of funding that is provided to tailors who do tailor aid work, is required.

    The access to clothing crisis is compounded by an ever increasing reliance on tailors alone to solve this pressing issue. Tailor aid shops were once able to employ apprentice and journeymen tailors to provide bespoke tailoring service to clients who could not afford to pay for such garments. These storefronts were modestly funded by the government, in recognizing that many people who require custom clothing, cannot afford to pay a tailor’s rate. Due to funding cuts, many of these storefronts have closed their doors, or are no longer able to provide the same custom services for clients who cannot afford bespoke clothing, but who desperately need it. The government should provide increased funding to tailors, which will allow them to assist those in need of tailoring services in crafting designs out of publicly available patterns, and in crafting custom patterns for these clients when necessary. The funding for such revolutionized access to clothing storefronts should be allocated in a way that encourages master and journeymen tailors to employ the services of apprentice tailors, for example, by allowing the master and journeymen tailors to bill a higher rate for the garments that are created with the assistance of an apprentice.

    This would be a good solution because, often overlooked in the access to clothing debate, is the fact that there is an ever increasing number of capable and skilled young apprentices and journeymen who are willing, but simply don’t have the opportunity to provide their services. This vast, untapped resource of apprentices and journeymen are often eager to create appropriate clothing for all individuals of society and for all occasions, but are often unemployed due to the lack of stores that are hiring, or the lack of training from more experienced tailors necessary in order to open their own store. The issue is not that there is a lack of willing and capable tailors to service the self-clothed and un-clothed with affordable and appropriate clothing, but with the lack of infrastructure and services designed to make use of these apprentices and journeymen. With trade schools producing an ever increasing number of future tailors, one answer to the access to clothing debate may be to make more efficient use of these young, up-and-coming tailors.

  11. David Cheifetz

    Would you enlist in a Piece Corps for a minimum term – say 3 years – in return for a reasonable salary if that meant you’d have to live wherever the Corps decided you were most needed? Even if that meant spending a year, in say, Inuvik rather than Come by Chance?

  12. Julia Hincks, Kevin Quong and Kate Parisotto

    While we cannot speak for all apprentice tailors across the Country, we have heard through the apprentice tailor network that jobs in northern communities such as Inuvik, especially those offering the stability of the 3-year term, would be coveted and highly sought.

  13. Lisa Fong, Tracy Wachmann, Mike Ng

    Thanks Malcolm; you (and others) make some excellent points about the building A2C crisis in Tailorland. Unfortunately, the increasing number of unclothed and under-clothed citizens venturing out in public is not enough for the general public to perceive the depth of the crisis, or the urgent need for reducing the numbers of under-tailored.

    While the A2C crisis is a common topic among individual tailors, their guild, the Tailors’ Society, the government and the fashion industry, no consensus seems to be shaping up regarding a solution. Perhaps some tailors are indeed too focused on preserving their self-interest to consider more holistic approachs that might require that they relinquish some control or benefit, for the broader good. But the issue is complex. Market-based solutions, such as off-the-rack fashion, or patterns and sewing machines for those who wish to make their own clothes, may go a long way to increasing the affordability of clothing, but they will not replace a properly -funded public tailoring system. Sometimes, people have no choice but to engage in a “walk-off” (Zoolander) with serious consequences at stake and that’s when tailoring has no real substitute. The main focus needs to be on reducing the barriers to obtaining adequately-tailored clothing.

    The general public will not support adequate funding of a tailor-aid system during these tough economic times until they are made aware of the full extent of the crisis and perceive access to acceptable clothing as being on the same level of societal imperatives like access to health services or education. To accomplish this we need to do a much better job of connecting A2C and other outcomes in the minds of the general public: under-clothed citizens’ health will decline from overexposure to the elements (both cold and sun), further taxing the health care system; families may fall apart under the stress and embarrassment of making and wearing their own clothing; those children forced to attend school in their birthday suits may be permanently traumatized or choose to play hookey rather than be subjected to the shame of conspicuous under-consumption.

    Regulation of tailors be left to market forces. Most patrons do not have the information or skill-set necessary to discern whether their clothing has been competently designed and constructed. Regulation of the competence and conduct of tailors, as well as those who provide develop products, is needed to ensure that they have the requisite education, experience and ethical judgement to make a good set of clothes.

  14. Caroline Mercer

    Is this a metaphor?
    I just spent about half an hour writing a response to this and then realized this is a metaphor…
    Sneaky, sneaky…………

  15. Malcolm Mercer

    Lisa, Tracy Mike:

    As all good tailors know, one size does not fit all. The A2C crisis is no single problem. A number of solutions are required because there is no one problem and because no one underlying problem is simply solved. And there is the problem of unintended consequences.

    The funding issue needs to be understood as different than the production issue. The focus of my article was on the means of production because I doubt that it is well understood that production other than by bespoke expert tailoring is at least frustrated if not effectively banned.

    If appropriate clothing can be produced by more efficient means, then it should done whether paid for by the general public or the wearer of the clothes. Public funding should not be an excuse for unnecessarily expensive production methods. The public purse is clearly limited.

    This is not to diminish the importance of bespoke tailoring for clothing that truly requires it nor to suggest that appropriate clothing is merely a fashion statement rather than, for some occasions, an important requirement to be publically funded where necessary.

    As for regulation of the production of clothing as well as regulation of tailors, regulation can be beneficial where the consumer does not have the information or expertise to judge the suitability of their purchase. But there is regulation and there is regulation. I doubt that the same regulatory tools would be appropriate for mass-production of clothing than are appropriate for bespoke production. And choosing not to regulate in some areas might be the better choice. Could purchasers be permitted to decide whether to purchase from a qualified tailor (which proper training, assessed competence, insurance, and supervision based on a code of conduct) or from a non-tailor? Perhaps there are types of clothing where purchasers need not be protected but can decide for themselves.

  16. Malcolm Mercer

    Julia , Kevin and Kate:

    I agree that helping the self-clothed by making patterns available is a useful contribution. But (I think) like duty-tailoring and unbundled-tailoring, you are right that these are patches not solutions. But there don’t seem to be any magic solutions and so patching is worthwhile.

    As for your proposition that:

    The issue is not that there is a lack of willing and capable tailors to service the self-clothed and un-clothed with affordable and appropriate clothing, but with the lack of infrastructure and services designed to make use of these apprentices and journeymen.

    it seems implicit in your proposition that clothing is properly and that the issue is only connecting supply to demand. I accept that there is no lack of tailors but part of the problem seems to me to be that bespoke tailoring as a means of production simply can’t produce sufficiently low cost yet appropriate clothing for some purposes. So I agree that the issue isn’t a lack of tailors but I’m not so sure that tailors are the only answer.

    But I agree with your proposition as well in that you note that the lack of infrastructure and services. It is significant that the vast majority of tailors making clothes for individuals do so as sole-practitioners or in shops with a few other tailors.

    For a small shop, hiring a new apprentice or journey-tailor is a big deal. There needs to be enough work for hiring a young tailor to make sense and, for a sole practitioner, this may well mean nearly doubling the work of the shop. The additional work needs to be economically done at an hourly rate that pays for the young bespoke tailor. And the “infrastructure” in a small shop is likely limited.

    I suspect that this part of the reason that tailor-clinics make sense. Governments have the resources and expertise to establish tailor-clinics that do not naturally arise in the private sector as currently regulated. This is a different point than public funding versus private funding.

    I suspect that the market could create similar (but different) infrastructure if external investment and technology were permitted. An infrastructure combining tailors, para-tailors, technology and business processes might well provide a context for young tailors to be part of the solution if only for some types of clothing. But, I don’t see that infrastructure evolving in a world of soles and smalls.

    And welcome to the Guild! You have joined in ‘interesting’ times.

  17. Malcolm Mercer

    Brad

    I’m not sure how to read your ‘solicitailors’ fable. I suspect that it is in the tradition of the Brothers Grimm. The horrible of the mischieviously-dressed Big Bad Wolf trying to eat the elegantly clothed Red Riding Hood was designed to stop children from going outdoors and to obey their mothers even where there were no wolves to be found. The fear of the unknown is powerful. It can be protective but it can also unduly inhibit prudent exploration and innovation.

    And I think that your Tailorland is a bit different than than the world that I imagine (which is of course appropriate as we are both imagining). You imagine bucolic solicitailor practices put at risk by the smelly aggressive barristailors. Not so simple, I imagine.

    While we tailors can of course learn nothing from others, the world of lawyering may provide a parallel. In that world, the issue is not only access to justice but also access to legal services. The world of solicitors is not quite so bucolic as the solicitailor world that you describe. It appears quite clear that many members of the public do not use solicitors for wills, contracts and such because they do not see the cost-benefit of doing so. This is not to say for a moment that solicitors do not provide valuable fairly priced services. Rather, limiting the means of production of legal service to spending lawyer time (or time directly supervised by a lawyer on a problem) is inherently limiting and so needs for some legal services are unmet.

    This point that there are unmet needs for legal services is proven by looking at where innovation is actually happening outside of the regulated sphere or where alternative structures are permitted – and it is not in litigation but in the market for legal services. the Co-Op, Legal Zoom, Neota Logic, Quality Solicitors, Rocket Lawyer, Slater and Gordon (for wills and contracts) provide examples.

    But it would be wrong to throw the (unclothed) baby put with the bathwater. Recognizing that there are unmet needs for day-to-day clothing and not just clothing to “repel attacks and smite enemies” does not argue for abandoning solicitailors to the Big Bad Wolf.

    But assuming away the problem by bucolic images or avoiding innovation by assuming inevitable horribles isn’t the answer either. The right answers won’t likely be found at the extremes of complete prohibition and complete deregulation.

    And I suspect that complete prohibition in the regulated sphere may ultimately put solicitailors at risk from the unregulated sphere. Innovation occurs and unmet needs will be addressed. As King Canute learned (and at the risk of mixing metaphors), water finds a course and does not obey commands.

    But most importantly, people should not be denied affordable clothing for insufficient reason. The most interesting and valuable discussion is about how to allow innovative production of some clothing while avoiding undue adverse consequences on the production of clothing generally.

  18. Malcolm,
    Solicitor practices are in danger of being put at risk by a barrister-dominated Convocation and by other entities such as, perhaps, government, who either are content to risk solicitor practices to deflect real change to barrister practices (in the case of Convocation) or are looking for quick votes and to hell with the long-term consequences (in the case of government).

    Let’s look at wills. Nothing stops anyone from doing their own will. Nothing stops them from buying kits. Homemade wills and wills from kits are inherently dangerous. If badly done, they lead to litigation. Who benefits? Barristers. Who loses? The testator’s family, the court system, the taxpayers. The real question is whether solicitors are selling high-quality wills at affordable prices. The answer to that is yes. $200-$300 for a well-drafted will is not much cost on its own or to access years of education and experience. There is so much price competition for wills work that wills have almost become a loss leader.

    There is a fair bit of time involved in drafting a will properly – getting the information, incorporating it into the document, meeting with the clients, ensuring they understand all the provisions, ensuring they have capacity and are not being unduly influenced, providing secure storage, and so on. Sure, they can buy a kit from legal-zoom or whoever, but they are taking various large risks in doing so, and if they are taking large risks, then they should buy insurance for those risks, or, better yet pay a fair and highly-competitive fee to have it done right in the first place. I have seen many kit and home-made wills. They very often have problems in them that could have been inexpensively avoided.

    Sure, let the public do their own wills or buy kits, but if they want them done right, please give them the best access possible to skilled, inexpensive legal services, and that is a highly competitive solicitor bar. Anything else will be a derogation from the quality solicitors provide leading to problems leading to litigation leading to benefits to barristers. A properly run system should minimize the need for barristers, not maximize it.

    And I am not afraid of the unknown, as you seem to suggest. I know the so-called unknown all too well, and that is why I do not want to see those harms happen here.

    It is simply not the case that allowing non-solicitors to do solicitor’s work improves the lot of the public. Take real estate law for example. In the US, there were no laws protecting real estate lawyers. As a result, the giant, billion-dollar US title insurers (just four of them have 87% of the market) undercut the real estate lawyers into virtual extinction. Then, the prices zoomed up to where Americans pay far more in conveyancing costs than they used to when hundreds of thousands of real estate lawyers were competing for the work, and far more than Ontarians ever have. The Government of California accurately calls the title insurance industry “a dysfunctional business in which the public pays too much.” The Supreme Court of Iowa accurately calls the title insurance industry “an invidious form of business.” It is the only insurance industry that does not give a damn beyond lip service about the very thing they are insuring for the simple reason that they have an abysmal record of paying claims. The house, car and life insurance industries pay out 90% of their premiums earned in claims. The US title insurance industry pays out 4.5% (not 45%, 4.5%) of its premiums in claims (according to Fitch Inc.). The US public has been badly, badly, badly harmed by the replacement of real estate lawyers with giant title insurance companies, and it was all done in the name of competition. Competition on a level playing field is fine, but that is not what happens. The US title insurers claim that nothing stops lawyers from re-entering the real estate market but that claim is empty. Having been undercut to death by unfair pricing once, having received no help from the government, having been abandoned by the public whose treachery swiftly bounced back in their faces, why would lawyers put themselves through that again? Instead, they go into litigation law and sue doctors for hangnails.

    Furthermore, solicitors have not avoided innovation. Far from it. We have embraced computers like nobody’s business. That has allowed us to provide even more complete wills than in the days when the poor beleaguered secretary had to type them afresh whenever a client wanted some changes. These and other innovations have allowed us to keep costs very affordable for our services.

    I repeat that there is no crisis of accessing solicitor services on a very affordable basis. Sure, some may choose to their own legal work but they most often do so in an environment of false economy and lack of awareness. Solicitors offer the most cost-effective, non-government subsidized, legal services you can find.

    It is the litigators whose services are horrendously expensive. Those are the services that the great middle class cannot afford. Litigation services are tremendously expensive because of two main reasons. First and foremost, the government has created a system with far too may steps between commencing an action and achieving resolution of the action. There is the fact-finding stage, the pleadings stage, the discoveries stage, the mediation stage, the pre-trial stage, and the trial stage. Only the first stage is not set by the government, and we can agree that the pleadings stage and the trial stage are indispensable. The intervening stages do little except hugely increase the cost of dispute-resolution. Each stage is separated by, on average, six months from the preceding and succeeding stages. The barrister is carrying 200 files. Thus, at each stage, the barrister much refresh his memory and prepare and often research anew. All the preparation etc. is necessary because the client sure won’t thank you if you show up unprepared. But preparation takes time, and time is money, lots and lots of money. There are solutions to problems arising out of the structure of the system and you and I have discussed them, but I will not go into them here.

    The second main reason is that there are too many barristers per capita – a problem that is certain to worsen. When there are too many barristers per capita, the overall cost of litigation to the public and to the government goes up, not down, and way up. To some commentators, this seems counter-intuitive, but they simply do not understand the dynamics at work. Busy barristers with loads of clients are happier to settle their cases on reasonable terms far earlier than are barristers who are terrified that they do not now and will not in future have enough clients to pay the overhead, the student debt, and provide what is for the vast majority of lawyers a middle class living. This is topic for a book, not a blog, and, as my forearms are getting sore, I will end by saying again that the problems of access to justice are found on the barrister side of the bar, but I fear that it is the solicitor side of the bar that will be made to suffer for it.

    Cheers.
    Brad

  19. For those who did not see it, I thought it would be helpful to put into this blog Justice Brown’s observation, reported in the Globe in early July 2013, that ‘the root of the problem is a belief that “trials are bad” and “mediation will solve all problems,” which took hold in recent decades and sapped the will to move cases swiftly to trial’. Thus, I am far from the only one who sees where the real problems lie.

    All these mediation and interim steps were implemented by the government in the mistaken belief that they would foster settlements and reduce the strain on the court system. If is apparent that they do not work as hoped, and have instead greatly exacerbated the access to justice problem.

    The major solutions to the access to justice problem are to be found there, and nowhere else. There are some other minor things that can be done such as greater use of computer filing and the like, but they will not address the real problem and that is too much time and steps between commencing and resolving a dispute.

    Implementing the real solutions will cause consternation among barristers. They will fear the unknown of fewer steps and less time on files. I believe their fears are (1) misplaced and (2) unfounded. First, they are misplaced because if we can bring the cost of dispute resolution down significantly, the public will benefit and that is a good thing. Second, they are unfounded because barristers will still make a good living partly from people who will pay to retain a “winner” and mostly from the new work that will result when people realize that they can now seek justice at a reasonable cost for disputes that they would otherwise have dropped due to excessive cost.

    The hard part will be getting the government and the barrister bar to recognize this and implement real solutions to real problems instead of attacking solicitors’ work and implementing false and harmful solutions to non-problems.

    Cheers again.

  20. Being the recipient of a “Coat of many colours”, and wore it in shame. My tailors of necessity, each placed thier own agenda colour scheme that did not represent my human rights of security of person and timely service.

    Seriously, the rights of rebutal to a chosen colour is hidden from the average tailor-client relationship. when, the rights of client-tailor are fudged to a patchwork, you have to like my output as it is the only way!! To empowering clients with the existing rules of garment making and steps to steer one into changing the faulty existing patterns that have not evolved to the existing circumstances. (Garment Gang Stalkers!)

    Which, Leads us to the problem not mentioned in the client-tailor saga. Human rights/empowering, to easy access to the rights of a client to decline a coat of many colours or choosing the fabric and patterning of such. To knowing the rules of all the contents to the fabric of fair play. OCL, CAS, Medical, Police and especially the child’s rights of non fabricated dress of representation in Family Law Litigation.

    Coercion of a hidden design, Preplanned, accepted garments that are mass produced in advance. You only have these options, again fails to allow fairness in the process. Hidden processes to get the final garment, is also a deterent to the purchaser, as no security in the process as it changes as time drags on.

    Media is also avoiding the issues as too many top dog tailors will sue!!! Discredit a Tailor?? See if any other prominent Tailor will take you on as a client. :(

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