Government Intervention to Solve the “Access to Justice” Problem Is Inevitable

All that has been written and said in relation to the “access to justice” problem — that is, the fact that the majority of the population cannot obtain legal services at reasonable cost – fails to contain the necessary solution. That is because the law societies and other such institutions and experts that write the reports and speak to the problem do not understand a fundamental fact. That fact, stated as an issue, is: shouldn’t the present method of delivering legal services be abolished in favour of some other method?

The present method of legal services delivery is the “handcraftsman’s” method, i.e., the same lawyer or group of lawyers performs all stages of the work necessary to delivering the finished legal service to the client. That method is slow, inefficient, and therefore has a poor cost-efficiency. As a result, legal fees have to be too high in order to pay for the extra time that using that method requires. And legal fees will have to continue to increase in response to an ever-increasing volume of complex laws and technology to cope with in delivering all legal services.

The handcraftsman’s method was given up more than 100 years ago by the medical profession, and by all of large-scale manufacturing. Instead, they rely of the following three-pronged strategy for coping with their “costs of services delivery and manufacturing” problems: (1) the use of specialization as an on-going process in response to new knowledge, complexity, and technology; (2) scaling-up the volume of work done by each specialist; and, (3) an intense application of technology, particularly now electronic technology, in the work done by each specialist. That strategy results in a “support-services method” of services delivery, in place of the handcraftsman’s method.

Four very essential benefits are obtained from this support-services method: (1) costs are substantially reduced; (2) the competence with which the work is done is substantially increased; (3) response time is greatly reduced; and most important of all, (4) the probability of making an error that hurts the patient, customer, or client is reduced to a minimum. Therefore, the same doctor does not perform all parts of the treatment of patients. Nor does the same surgeon do every kind of surgery. The specialty that was surgery has been divided up into several different kinds of surgery in response to constantly increasing medical knowledge and technology. And similarly, car manufacturers contract out the more difficult and complex parts of manufacturing motor vehicles to companies that specialize in making those difficult, complex parts. As a result, both the car manufacturer and the special-parts companies make a profit. Similarly, the specialist surgeon functions as a support service for the family doctor.

The opposite results are obtained by using the handcraftsman’s method of services delivery. For example, because legal research is considered to be too time-consuming to produce adequate revenue, most legal research is done by law students and young lawyers because they work at a lower hourly rate fee structure. As a result, (1) only limited cost-savings are obtained; but, (2) the competence with which the research work is done is greatly reduced; (3) the response time is greatly increased; and worst of all, (4) the probability of making an error that hurts the client is substantially increased. But legal research is the foundation of all other legal services. Therefore it should not be given to the legal profession’s least experienced people. Good legal research is as much the product of one’s experience as a lawyer, as it is of one’s training and talent, if not more so.

In the support-services method, legal research is given to lawyers who are specialists in doing legal research, accompanied by sophisticated in-house databases by which all of the office’s work-product is captured for use in future research projects. And those databases are maintained by experts in database management so as to maximize the many benefits obtained from them. There are several other support services that can be developed from such databases. As a result, such a database becomes more important and valuable than any lawyer in the office. And it makes untrue the belief that all law offices are only as good as the lawyers in them. With proper database management, every retiring or otherwise-exiting lawyer leaves behind in the office database his/her expertise and special knowledge and insights, which are thus available to all remaining lawyers and to every newly recruited lawyer, thus drastically reducing training time. In legal research support services, each legal research specialist has detailed, finger-tip and quickly used knowledge of the materials in the office database related to his/her specialty, and of all of the legal literature related to that specialty. In this way specialization in both personnel and legal materials is employed as an on-going process. And as a result, those four benefits, essential to high quality legal services, are obtained and maximized as greater levels of specialization are enabled by constantly scaling-up the volume of work done by each specialist, and new specialist and specialization created. That’s why successful businesses get bigger so as to maximize the benefits of their success. “Nothing cuts costs like scaling-up,” is a basic principle of all engineering. And, “if you want to sell cars at a lower price, make more of them”–Henry Ford.

But in none of the authoritative reports and discussions on the problem of the affordability of legal services is this issue as to the method of delivering them even mentioned, let alone analyzed. The reports’ recommendations deal with improvements to the present system of services-delivery, without questioning the worth of the system itself. That is why there has been no solution to this problem, even though a solution has been most compellingly needed for decades. As a result, all of the authoritative people who have dealt with this problem are like experts trying to improve a horse-powered transportation system so that it will have the capacity, speed, and cost-efficiency of a motor vehicle powered transportation system. It cannot be done, no matter how much it is improved. Similarly, the handcraftsman’s method of legal services delivery cannot be made to solve the problem, no matter how much it is improved. But law societies and legal experts continue to try, again and again, as shown by each new report, institutional “initiative,” and other published proposals.

Therefore, the problem and its long history of failure, requires government intervention, because law societies, being the regulators of the legal profession in Canada, do not realize that they do not understand the true nature of the problem and won’t accept the fact that they and all other such institutions within the legal profession do not have the expertise necessary to solve the problem. If left to carry on as they have been, these regulators will never solve the problem, and the damage, injury, and distress that it is causing will continue to increase.

So, we must get ready for, as some have predicted, the disappearance of middle-sized and small law offices over the next ten years, and also for government intervention that rolls back law societies’ monopoly over the provision of legal services and the legal profession’s independence from government interference. That intervention will take the form of variations on the theme of governments’ using an expansion of legal aid organizations as the basic infrastructure by which to introduce programs of socialized law.

It has to be that way because of the size of the damage the problem is inflicting upon the population and upon our courts, so clogged as they are by unrepresented litigants that we are in danger of becoming a legally dysfunctional society. In particular, it is the middle class that is being hurt. They pay most of the taxes that support the justice system, but they can’t make effective use of any of it because of the unavailability of legal services at reasonable cost. Particularly important, they cannot make effective use of the rule of law and the rights and freedoms protected by the Canadian Charter of Rights and Freedoms. For them, the Charter is a paper tiger. Therefore, why should they continue to respect the justice system, or the constitution, or any of the people that they employ, including lawyers? Constitutions can’t work effectively without the respect of the populations for which they are enacted. Therefore, if governments want to stay in power, they cannot allow this situation to continue.

But in very telling and sharp contrast, our law societies don’t have sufficient respect for, and fear of, the power of the internet and social media, which, combined with the news media, enable the severely damaged people to find each other with amazing speed and talk-up this wide-spread and most damaging of problems. It is only a matter of time before it will “go viral” almost overnight, thereby becoming a major political issue—an issue, that when so publicized, will provide insufficient time for law societies to publish a persuasive response, and will compel governments to act.

I know all the above to be right because I was the first Director of Research at LAO LAW, the legal research support service at Legal Aid Ontario (at LAO; 1979-1988), and during that time I designed its unique technology of centralized legal research. As a result, it now provides much more than legal research support for lawyers in private practice who do legal aid cases. Therefore, I’ve had the “on the battlefield” experience that none of the fine generals who have written about this problem have had—nine years of intense trial-and-error experience to learn what I know now to be the solution to the problem. They have never had an opportunity to put their recommendations into effect and see the consequences. Therefore, what they recommend is speculative. But what I recommend is proven fact. The proof of the importance of that difference lies in the fact that all of the reports written, and all of the conferences held about this “access to justice” problem and about LAO, all failed to examine LAO LAW. LAO LAW now has a 34-year history of success, popularity, of saving LAO millions in paying lawyers’ accounts, and of being the best legal research unit in Canada. Nowhere else in Canada’s legal profession is there such a proven example of the successful solution to the problem—the very successful use of the “support services method” instead of the “handcraftsman’s method” of delivering legal services.