Column

What If?: Hypothetical Questions About Improving Access to Justice

I’m current reading (and loving) the book “What if?” by Randall Monroe of xkcd fame. The subtitle tells you what the book is about: Serious Scientific Answers to Absurd Hypothetical Questions. As with xkcd itself, the beauty of the book is the depth of thought and extrapolation beyond the facile that goes in to answering such questions as “what would happen if everybody on earth jumped at the same time” or “what would happen if a baseball pitcher threw the ball at 9/10 the speed of light”? I’m inspired in this column to pose my own “what ifs” around access to justice issues and I invite you to join in.

What if…

  • All Canadian courts and tribunals had fully digitized, interoperable and accessible electronic dockets?
  • All family law matters from divorce, child custody, probate, etc…were subject to publication bans?
  • A pre-requisite to employment as a crown prosecutor was 10 years of experience in criminal defence?
  • All small claims courts, or any other civil matter with a financial or damage limit under $100,000 could only proceed by way of written submission subject to a 10 page maximum?
  • All courts were required to revise and update their Rules every 2 years with a view to keeping the complete set within a target word or page count of roughly half the current size?
  • Every reported case going back to Confederation was freely available on CanLII?[i]

Assuming the preconditions

An important aspect of Mr. Monroe’s book is that in every circumstance where a logical, financial, physical or theoretical barrier to exploration of the question exists, he either constructs a way around the barrier or merely assumes away its existence. This is critically important to a proper analysis of the “what if” question. In law as in life, it is far too easy to focus on identifying the barrier than the solution. And in many cases, one side finds benefits from the barrier.

In our world, financial limitations dominate the conversation. Certainly there are other constraints, but “who will pay for it” or “what needs to be cut to make this happen” are pervasive thoughts. When the financial question needs to be answered before the substantive evaluation can begin, I hold out little hope that the substantive evaluation will ever occur. Similarly, when the question is constrained by a prerequisite that only a fixed dollar amount is available, then the original question is no longer being investigated.

Even if we can successfully assume away the financial constraints by collectively agreeing on the balance between the private and public (through taxes collected and distributed by governments) obligation to financially support the system, our next challenge is often about “turf”. In the administration of justice, particularly in an adversarial system, the roles of players can come into conflict. Governments must develop and maintain the system, but their representatives (executive, administrative and legal) are also players. The legal profession has duties to the court, to the Crown and to the defence of their client’s rights and interests. And the independent judiciary must have the authority to manage its own affairs.

What about unforeseen consequences?

It’s the stuff you don’t think about that makes the “What if” book so interesting. for example, in determining the answer to the “everybody jumps” question, Mr. Monroe first needed to bring everyone to Rhode Island…because that was a land mass of suitable size to accommodate every person on earth standing cheek-to-jowl. The unforeseen consequence was the challenge in the out-migration from that space after the experiment was done. [Nasty things happen in the baseball example, too.]

As with the barriers to the making the change, undue focus on the presumed negative consequences can paralyze action before it even begins. Many years ago, I worked with a fellow who described this as the “bucket-of-sand and bucket-of-grease” scenario in which for any given situation involving potential change or decision-making, you could throw the contents of one bucket to slow it down or the contents of the other to speed it up.

Consider the various A2J, court reform, legal futures and other reports that have been issued over the years. Then look at the accompanying press and professional assessment of those reports and you will undoubtedly find a veritable beach worth of sand surrounding nearly each one.

As enjoyable as it is to consider the Newtonian implications of iterative and compounding actions and reactions to the chain of events triggered in Monroe’s hypothetical “what ifs”, exceedingly few of the justice “what ifs” or proposals offered above will result in decimation of judicial precincts or dystopian futures where justice is brutally dispensed by dolphin-guided drones. Or, to put it simply, there may be better odds of improvement than deterioration in access to justice if we try some of the ideas put forth in recent reports.

Moving from the hypothetical to the actual

If we are to ever move from the hypothetical to the actual, we have to be prepared to cut each other a little slack on solving the preconditions and avoiding possible future problems. On this basis, efforts like the CBA Legal Futures Initiative and the National Self-Represented Litigants Project are to be commended because they advance the “what if” analysis, identify milestones and propose actions to move forward.

In determining the preconditions for any hypothetical justice “what ifs” that appeal to you, can you find a spot where you might have some influence? If so, look for your bucket of grease and get things moving.

In anticipating the consequences, are there outcomes truly and objectively negative for all concerned, or just bad for you? If the latter, please resist the temptation to pick up your bucket of sand as some of us would like to find out what can happen if we try to move things forward.

_______________________

[i] Unlike the others, this is quite achievable in very short order with a little help. We’re pretty close in Saskatchewan and are building plans to cover the country.

Comments

  1. OK, I’ll play What if?

    What if freedom of speech was extended to our courtrooms so that anyone, not just law society members, could present any case that meets the criterium of being in the public interest?

    This is not just hypothetical. I and a colleague were in court this past Tuesday seeking (among other things) that specific freedom and opposed by the Law Society of BC. Though the judge denied it that day, she was unable to conclude the case, so we will be back.