The foundational tenets of our legal system include justice and fairness. It is assumed is that we can access and assert our rights in law. Increasingly what we see in the courts is a rising number of people who represent themselves with measurably worse outcomes than if they had retained a lawyer, and many more who are just not seeking justice at all because of legal costs. For many years, the focus was improving access through legal aid and pro bono legal services. However, today that is only one small part of the answer to a very big problem. What more can be done to improve the situation?
Alan Shanoff has argued that real access to justice means reducing the roles that lawyers play in the courts. Is technology the tool we need to replace lawyers? Technology is already assisting people to avoid the courtroom through opportunities like online dispute resolution.
A less radical proposal is to use technology to drive down the costs of lawyers, with the hope that those savings will trickle down to the public. Certainly there is a lot of discussion based around court technologies, there was an entire two-day Canadian Forum on Court Technology which took place in Montreal October 24-25, and there has been progress with work on identifying best practices for remote court appearances, including this report from Canada and this one from Australia. But even technological solutions as simple as electronic filing progress slowly through the court system. While some courts in Canada don’t even accept faxes, Singapore just moved to a comprehensive eLitigation model, after 13 years of success with electronic filing.
Finally, there is a real concern that technology is actually decreasing access to justice. The fear is that digital access to justice tools will be seen as a cost effective ‘upgrade’ to traditional access to justice initiatives, and investment that in the new technology could come at too high a price for people without the skills or equipment needed to navigate online tools. From the perspective of someone on the other side of the ‘digital divide’, every dollar spent on digital access to justice projects might very well be a dollar taken away from other projects that could serve them better. Even courts ‘getting with the times’ and adopting new technologies pose a threat to these constituents. While the need to take time off work to physically file documents with the court was a barrier to justice before, moving to an online model threatens to create entirely new obstacles that my have to be dealt with.
The Star has an interesting article on the status of The digital divide as an issue in Canadian Society. Here is one of the take-aways:
While 66.7 per cent of households over the age of 65 in the top half of income use the Internet, that number drops to only 28.5 per cent for the poorest quartile of households.
Patrick Michael writes about the increasing role that technology plays in persuasive presentations to the court. Will self-represented litigants be able to continue to compete in court as persuasion goes more high tech?
JCUP installed a prototype system in Division 8 of the Jefferson Circuit Court. A recent murder trial demonstrated the flexibility of the pilot system. The prosecution used a document camera to display a diagram of the crime scene on one screen. Photographs of the physical evidence identified on the diagram were shown on the second screen from a laptop. The defense utilized the touch-screen technology with a witness illustrating the distances between pieces of evidence on the crime scene photographs.
Yamir Taddase at LawTimes writes about the struggle that some of the bastions of Access to Justice, pro-bono lawyers, have with the current system.
As part of discussions on revolutionizing Canada’s legal system, lawyers and judges have talked about the need to look beyond pro bono law to respond to urgent needs related to access to justice. During a recent speech at the Law Society of Upper Canada, Supreme Court Justice Thomas Cromwell urged lawyers to be innovative in addressing the issue.
Finally, if you are looking for an article to fire up your passion for the need for real and tangible action on access to justice, I urge you to read this article by Mitch Kowalski on some of the shortcomings of the most recent CBA report on the subject.
Much of the CBA Report calls for more resources to be put into legal aid, into new court systems, into new centres of excellence and on and on and on.
Interesting ideas, all of them. But what the report fails to answer is the fundamental question: who is going to pay for this? Every government in this country will tell you, “there isn’t any money,” so I’m troubled that the report assumes unlimited funding is available. I’m equally troubled that the writers have ignored the economic realities in which we live.
If you’ve never participated in a Twitter Chat before, let me explain: it’s a mix of a networking event, and a retro ‘chat room’. Questions are asked by a moderator, and everyone is free to respond and engage with each others’ ideas. It’s a great way to get new perspective on issues, and connect with new and interesting people. Read more about how twitter chats work.
The next #cbafutureschat is Tuesday November 26 at 7pm ET.