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The Public / Legal Profession Divide in Access to Justice

We need to change our primary focus. Too often, we focus inward on how the system operates from the point of view of those who work in it. ….. The focus must be on the people who need to use the system. … Litigants, and particularly self-represented litigants, are not, as they are too often seen, an inconvenience; they are why the system exists. … Until we involve those who use the system in the reform process, the system will not really work for those who use it.
National Action Committee on Access to Justice in Civil and Family Matters, Final Report: “Access to Civil & Family Justice – A Roadmap for Change” October 2013

For those of us interested in meaningful justice reform these are very encouraging words. Putting the “user” at the centre makes sense and is completely aligned with system design and reform efforts in other contexts. In fact, users need to participate directly and proactively in the design development processes.

Many previous reports including the 1996 CBA Systems of Civil Justice Task Force Report have highlighted the need for a user focus. Why, then, haven’t we actually made the users the centre of the vision and the work of justice reform? Despite the best intentions, reform efforts continue to involve the “usual suspects” – those who work within and are responsible for the very system they are supposed to change (lawyers, judges and court personnel). Efforts to consult with and involve “outsiders”, the “users” (except possibly sophisticated litigants who are represented by inhouse counsel who are really insiders and not outsiders), has been superficial and marginalized. Many of us don’t really want to hear what the users have to say or to heed their advice.

Professor Julie Macfarlane has published important research about self-represented litigants. Her comprehensive report is filled with important information based on the real-life experiences of Canadians who have represented themselves in courts in Ontario, BC and Alberta. Professor Macfarlane has been invited to speak about her study to many audiences of lawyers, justice system professionals and public (non-lawyer) groups. As she explains in her blog post she is beginning to feel as if she is living in “two parallel universes”. The public audiences completely resonate with her findings and comments; many in the audiences of lawyers dismiss the results and insist “the public should be assured that the legal system has worked well for 150 years, and we must trust it to continue to take care of us all.”

She comments:

In the legal conferences I have attended this Fall there is an upbeat and often self-congratulatory tone, despite the chaos and dysfunction that is threatening to engulf our courts and justice system. The focus is often on small matters of internal reorganization rather than on the larger picture. Some of my colleagues seem unconcerned about what is happening at the other end of the rabbit hole. In our court registries, in hearing rooms and courtrooms, in duty counsel’s office or in the courthouse legal information services, there is a flood of people desperate for help –anxious, confused, distressed, emotional, and sometimes angry. Ask anyone working at any of these locations.

Professor Macfarlane reports that when she presents to legal audiences she feel “isolated” and the tension is palpable. One of Canada’s most respected legal practitioners and scholars is feeling ostracized by her own legal community.

Why is there such a gulf between what the public (the users) are saying and what the legal profession believes and does? Perhaps it comes down to one or more of the following (with my comments in brackets):

  • Some lawyers and Judges have experienced frustration dealing with true “vexatious litigants”. [Very few self-represented litigants (“SRLs”) are “vexatious”. The vast majority are doing their best in a complex and unfamiliar system.]
  • Many lawyers practice in areas relatively unaffected by SRLs. [That doesn’t mean the problem doesn’t exist or that they shouldn’t care about access to justice.]
  • Some choose to blame the SRLs because they don’t understand how things work. [Exactly the problem.]
  • Some believe the problem of SRLs is over-stated. [Not according to recent research.]
  • Many don’t believe there are serious problems with the system. [They applaud the NAC report but deny its main premise that the system is broken and major change is needed.]
  • General resistance to change. [This is part of human nature. We can’t let it rule us.]
  • Self-interest. [If there truly is a crisis it is in our self-interest to respond and change.]

Professor Macfarlane responds to the push back from the legal community by challenging all of us to ponder our underlying culture and beliefs and to move to action:

… [T]his reaction confirms to me the importance of naming the scale of the problem that we are facing – and to find ways to talk about it without defensiveness, antagonism or defeatism. We are smart people, we are deeply committed to our work, and we can and must figure out how to respond to this crisis – in multiple small ways since there is no magical single fix here – but first, we have to care about the question of access to justice.

We must care about access to justice. Thank you for continuing to stand up for the user Julie!

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Comments

  1. To best serve self-represented litigants (SRL’s): (1) define the problem of unaffordable legal services accurately; (2) determine the exact cause of the problem; and then, (3) devise a feasible, effective solution. The cause is not simply that SLR’s and other users of the justice system are not listened to. Nor will the solution be found in simply listening to them. The best that SLR’s can say is to define the problem accurately—the majority of the population cannot obtain legal services at reasonable cost. Then, because they have the legal power to regulate the legal profession, the law societies must successfully innovate a solution. Otherwise, there will be no solution. However, the Federation of Law Societies of Canada’s report , Inventory of Access to Legal Services Initiatives of the Law Societies of Canada (Sept. 2012) defines the problem (paragraph 1) as being merely, “gaps in access to legal services.” The solutions this report lists fall into three categories: (1) self-help; (2) cutting costs by cutting competence—using people of lesser competence than lawyers; and, (3) pro bono & low bono. These solutions are completely inadequate. They show that the law societies have first decided what they are willing to do and then defined the problem to fit those solutions. Therefore, the exact cause of the problem is missed and not understood. And therefore: (1) the problem has been allowed to become worse for decades; (2) we are still a long way from a solution; and as a result, (3) we are at considerable risk of government intervention by way of either: (a) socialized law, or, (b) free enterprise law, allowing non-lawyer ownership of law firms. Both will greatly reduce the number of middle and small-sized law firms, and greatly increase the number of lawyers who have to be employees of entities that are not law firms. For more details, see my Slaw posts in 2013 on: Oct. 24th; August 9th; and Feb. 5th and 12th. – Ken Chasse, LSUC & LSBC.

  2. Legal Profession–Social Contract and Social Covenant?

    …”Whereas Canada is founded upon principles that recognize the Supremacy of God and the Rule of Law.”

    Rabbi Jonathan Sacks-” A social covenant is when 2 or more individuals come together and pledge themselves together in a bond of loyalty and love [Philia] to do together what neither can achieve alone. A covenant is a coming together to create a “we”, something new, something bigger than “me”. A covenant brings about a transformation and has nothing to do with power and everything to do with agreeing to be their for one another in a pledge of mutual responsibility. A covenant involves the idea of collective responsibility. A social contract creates a state. A social covenant creates a society…he intervenes. He acts: the mark of a true leader…teaching us the primacy of conscience over conformity, the law of justice over the law of the land.”

    All that needs to be said has been said. People are suffering. End of story.

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