Listening to Voices From “Outside” on Access to Justice

As Julie Macfarlane noted here last week, it is imperative that those in the legal profession seeking to address issues in access to justice bring a variety of perspectives into the tent, including most importantly, the public whose needs are being addressed.

One of the highlights for me at last week’s Pitblado Lectures was hearing from a number of panelists who are not lawyers in response to the various access to justice-themed presentations delivered by an assortment of judges, academics and lawyers. These panelists’ views were insightful and refreshing and provided a much needed “reality check.”

Dr. Jane Ursel made a number of important points at the end of the first day’s schedule. Dr. Ursel, a professor of sociology and domestic violence researcher, emphasized the importance of asking whether efforts to increase access to justice are based on reliable evidence so as ensure that it is the problem and not the symptom that is being addressed.

She went on to comment that the administration of justice is an important component of access to justice. The administration of justice, she said, is like housework – when it works, it’s invisible; when it doesn’t, everyone notices. She pointed to the enormous public costs associated with a lack of access to justice and suggested more efforts be made to calculate those costs and use that information as a tool to convince governments to increase their investments in access to justice as a cost-avoidance strategy.

Dr. Ursel asked why the legal market couldn’t change in the same ways that the medical system has changed. Access to healthcare has increased through a shift to primary care access points where individuals may receive care from a nurse practitioner, pharmacist, physiotherapist or a physician. Why, she asked, can’t legal services also be provided through an integrated and timely multi-disciplinary service delivery model?

Drew Perry, a retired Manitoba government bureaucrat and current Complaints Review Commissioner for the Law Society of Manitoba, commented on the need for lawyers to get creative and think sideways in addressing issues of access to justice. He noted that change has been defined as “relentless pressure applied continuously” and suggested that access to justice needs a champion to move the agenda forward toward meaningful change.

Neil Cohen, Executive Director of the Community Unemployed Help Centre and Marston Grindey, a Law Society of Manitoba Lay Bencher and restorative justice advocate rounded out the reality check panels with their suggestions on what is needed from the perspective of those with boots on the ground.

As Julie Macfarlane noted, it is essential that we, the legal profession insiders, get over our:

“…feeling that only certain people can “speak” for the A2J Sector, and anyone who steps forward from the lower ranks – a court services foot solider, a law student with a great idea, a “non-lawyer” (argh!) from a social agency, or, most ghastly of all, a member of the public – is speaking “out of turn”.”

I wholly agree that these are the voices that we must listen to and learn from. As was very competently illustrated by these layperson panel members, the legal profession has much to learn from those outside our profession who have observed and often, lived the challenges of seeking access to justice.

Comments

  1. As one of Julie Macfarlane’s “ghastly” members of the public I’ll take this opportunity to once again speak out of turn.

    I am rather skeptical that Drew Perry, Neil Cohen and Marston Grindey qualify as voices speaking for interests other than those of the legal establishment.

    The most fundamental problem in Canada is the result of a political system so dysfunctional that it cannot be called in any sense a democracy. We need first a legislative branch, both provincially and federally, that is committed to serving the public interest and that will then insist on putting in place truly independent mechanisms for providing oversight of the Bar and the Bench.

    In the U.K., on whose legal system our own is purportedly based, there has been an ambitious program of reform to do precisely that. The result may not be universally viewed as a resounding success, but the jury is still out. In Canada the legal and political establishments do not have the will to undertake any initiative, and so distract themselves with endless discussion.

  2. Advise not your children to be lawyers. First, the cause of the A2J problem must be correctly identified before solutions are decided. The cause is the present method of delivering legal services, the “handcraftsman’s” method, instead of law firms relying upon specialized support services.

    The cause is not the lack of the right improvement to the current method. To the contrary, because of its very inadequate cost-efficiency and production capacity, the “handcraftsman’s” method has been replaced by support services methods everywhere, except by the legal profession. Does any doctor’s office provide all treatments for all patients as do law firms for all clients? Does any motor vehicle manufacturer make all parts of every motor vehicle? Nobody does except lawyers, because their law societies haven’t been put under sufficient pressure to force them to innovate a solution.

    And next, decide who by force of law has the power and the duty to act by innovating that support-services solution? The law societies. Who is it that is not acting? The law societies. Who stands to lose nothing to this access to justice problem of unaffordable legal services? Law society Benchers. What programs have they set in motion to attack the problem? There are none. What law society published text states that the problem is a law society problem to accept and solve? There is none.

    Do Benchers fulfill there personal motivations for becoming Benchers? Of course. Do they fulfill their public duty to make legal services affordable? Of course not; they never have considered that to be their duty. Competent and ethically practising lawyers is their duty to ensure they say, but not affordable lawyers. Who serves to protect and preserve the 19th century management structures used by our law societies? Their Benchers. Who will be comfortably and happily retired while the rest of law society member-lawyers struggle on with the very negative future left them? The Benchers.

    So, suffer and soldier on young lawyers. But also, cut your financial loses and those of your families; ask government to rid this land of its law societies. Until then, you shouldn’t tell your children and grandchildren to become lawyers, unless you have a comfortable law practice waiting for them.

    The problem is not a legal problem. Lawyers do not have the skills necessary to solve it. As a result, the present situation exemplifies the history of Canada’s law societies and Benchers, i.e., management by part-time amateurs.

    For in-depth analysis, see my “access to justice” articles posted on my SSRN author’s page, and my shorter summaries here on Slaw. — Ken Chasse, LSUC (since 1966), & LSBC (since 1978).