Humanizing the Cry for Access to Justice

The Chief Justice’s speech in Calgary, which I mentioned here last week, illustrated that despite all of our efforts to address access to justice the problem is getting worse, not better:

The cry for access to justice is rising from what was once a dull murmer to a crescendo.

She noted that the courts and government share some of the responsibility for the solution, but lawyers play an important role too, especially in pressuring these other actors to take action.

The Canadian Bar Association launched a campaign in Calgary, #whataboutalex, to humanize the struggle for access to justice. Kim Covert of National explains,

 “Alex” is several avatars representing composites of people with limited or uncertain access to the justice system that the Access to Justice Committee met in the course of preparing its Reaching Equal Justice report. As the policy issues relating to those avatars arise during the election – or even if they don’t arise – we’ll be tweeting about our various Alexes and inviting members to retweet and to engage in a conversation with candidates and their networks about what government can do to improve access to justice. “Every person should have fair benefit and protection of the law when a fundamental legal interest is threatened. Together we can put the issues of equal justice on the political radar,” the campaign materials say.

The #whataboutalex website provides narratives of how the lack of access to justice frequently affects the lives of Canadians. The intent is to provide a voice to Canadians who have otherwise been ignored by the legal system and the legal community.

One of the greatest challenges of dealing with legal reform and public members demanding access to justice is the perception that lawyers are rather indifferent to the problems. I wish I could say that was not true, but for far too many lawyers as long as their bills are being paid they have little incentive to commit to change.

The CBA is the notable exception to this, and #whataboutalex provides a powerful call to not only the politicians in this upcoming election, but also the rest of the bar who may need to be reminded that our professional responsibilities extend beyond our relationship with our clients:

5.6-1 A lawyer must encourage public respect for and try to improve the administration of justice.

Where this administration of justice is ineffective for the vast majority of the public, the incentive to participate in change to encourage respect for this system has never been more dire.

 

Comments

  1. Law societies are the cause of the unaffordable legal services problem. They have failed to bring about the necessary transition in the method of delivering (producing) legal services from the “handcraftsman’s” method to the support services method. All other competitive fields of the production of goods and services have made that transition. Instead, our law societies have watched the problem’s victims grow larger for decades: the population; the courts; the legal profession itself; and legal aid funding. The present method of legal services delivery does not use highly specialized, high volume support services. “Nothing is as effective at cutting costs as scaling-up.” No doctor’s office provides all treatments and all remedies for all patients, as does a law office for all clients. Therefore, using present methods, legal services work cannot be done with the necessary cost-efficiency to keep legal services affordable. The improvements that have been recommended won’t even have the effect of adding a motor to a bicycle, because the solution requires a motor vehicle to solve the problem. Law firms suffer the same limitation that cottage industries endure – they don’t use highly specialized support services. See:

    “A2J: Preventing the Abolition of Law Societies by Curing the Defects in Their Management Structure – A Solution to the Unaffordable Legal Services Problem”; (there are 10 major defects) click for a pdf download at the bottom of the abstract summary, at:
    http://ssrn.com/abstract=2647948

  2. Have law societies considered educating lawyers only in areas of law such as human rights, landlord and tenant or other narrow areas of law so not only could their education be cheaper but the ability to operate without the expectation to know everything though limiting can also be liberating and effective? In many professions and trades there is stratification of skills. Why not law?

    Donevan Donevan@mnsi.net

  3. Donevan,

    Law schools are accredited on the basis of mandatory courses in torts, contracts, property, criminal and constitutional law.

    Human rights, LTB, or other public-facing areas of law are not mandatory, nor do I believe they should be given the very broad application of law generally.

    Where we do find these subjects being mandated is in licensed paralegal education in Ontario, which makes complete sense since this is within their scope of practice, and they can provide these services in a more cost-effective manner.

    This shouldn’t be perceived as a stratification of skills, or of lawyers on top of paralegals, but rather our legal system evolving to meet different interests and needs of the public.

  4. More than eight years ago, I wrote a blog post (http://www.law21.ca/2008/01/divided-profession-collective-governance/) that suggested a future regulatory system in which different areas of law were governed separately from each other, on the basis that estates lawyers didn’t know nearly enough about corporate M&A law to effectively govern its practitioners, and vice versa. That might still happen, but it’s probably a least a decade or two away, at best.

    I’ve also suggested that law schools might themselves specialize their curricula (http://www.law21.ca/2008/02/student-focused-law-degrees/), and with the development of upper-year practice concentrations in a few schools today, we’re starting to see some sign that that’s coming to fruition. But given that the first-year curriculum in most Canadian law schools hasn’t changed much since the 1950s, I’m curbing my enthusiasm in this area too.

    Omar wrote:

    One of the greatest challenges of dealing with legal reform and public members demanding access to justice is the perception that lawyers are rather indifferent to the problems. I wish I could say that was not true, but for far too many lawyers as long as their bills are being paid they have little incentive to commit to change.

    Lawyers are indifferent to the problems, full stop. Quite a few individual lawyers who work harder and make less money than others, because they want better access to justice and are willing to make sacrifices to advance that goal, are the praiseworthy exceptions. Collectively, as a profession, we have proven repeatedly that we like things just fine the way they are. We ought to be honest about that, with ourselves and with others.

    As a profession, we are long overdue for a serious self-examination of just who we’re supposed to be and what we’re supposed to be for. We’ve been able to ignore those questions because, among other reasons, we enjoy the luxury of having an entire market to ourselves, choosing to serve only a small segment of that market, and preventing anyone else from serving the remainder. That’s been the effective result of lawyers’ market governance over the past several decades. The will to change this state of affairs is largely absent from the profession’s leaders and almost entirely absent from its rank and file. We made this bed, and the vast majority of us sleep soundly in it.

    Ultimately, the market for legal services will do the heavy lifting for us, by encouraging and exploiting alternatives to lawyers in those market sectors in which we are least interested. That will free lawyers to do what we apparently really want to do: serve the most easily accessible clients who have the most complex challenges and who will generate the most lucrative work. And we won’t have to wring our hands about “access to justice” anymore, which I’m sure will be a great relief to everyone else who’s tired of listening to us talk about it.

  5. There is actually something truly wonderful about a well-grounded legal education that would make me kind of reluctant to mess with a good thing. At least, it’s a wonderful thing for practicing law, but not so much for systems analysis. High performing, elite systems have certain characteristics that cannot be stripped away without gutting their high performance, and one of them is the quality of training. Mess with that at your peril.

    I do get tired of listening to lawyers talk about A2J, but only because the vast majority of the discussion fails to move beyond a rudimentary analysis when such smart people should be capable of so much more. It sounds mostly like “blah blah blah more funding blah blah more funding.” It is clear that most lawyers can only visualize access to justice as a world with more lawyers being paid to handle more cases, and their contemplation of access cannot move much beyond the question of who will be paying them if not the client. The fact that improving access to justice may require going around lawyers to court, instead of through them, is not much on the radar.

    The other thing I get tired of is the inherently patronizing outlook of the profession, embodied, I’m sorry to say, in the #whataboutalex campaign. The attitude is, basically, that simple people need simple law, and that the special stuff stays in the hands of lawyers. So again, as I’ve said elsewhere, administrative law and Charter law, corporate law of various types, consumer protection, taxation, and challenging various powers such as permit boards and regulatory agencies… all that is deemed as a matter of course as something that no mere citizen could handle on their own. Yet those issues are the ones that define justice; they make the law that the courts dispense as “justice”, and their outcomes set the precedents that shape the nature of the rule of law under which we all live. The reality is that only those who can afford to litigate have historically made the law. And lawyers are the filtration system that decides who can afford to litigate.

    Jordan is quite right here; the market is looking at alternatives to lawyers. The relationship of the people is with the courts, not with lawyers. The SRL phenomenon is making that point every day. And people who go to court are not just looking to solve the simple problems that plague their simple little lives. They are looking for full inclusion in making law.

    The reason that lawyers do not go to this question is, of course, that no one wants to contemplate their own obsolescence. But I don’t believe that lawyers need to become obsolete, and I think it would be a shame if they did. Lawyers, after all, are the body of talent from which we draw judges, and if the direction I think the A2J movement should go comes to fruition, then we will need a lot more judges.

    The conversations that lawyers should be having about access to justice should be about the law itself – the stuff that other people don’t understand and can’t work with. I have really only found one example: I am just reading a 2008 article from the Supreme Court Law Review by Melina Buckley, “Searching for the Constitutional Core of Access to Justice.” THIS is what people look to lawyers for. The way that barriers to justice are built into the law itself should provide fruit for endless discussion.

    Court systems and perhaps regulatory agencies should be hiring management consultants to assist them with strategic analysis and organizational design to help them meet the challenges the marketplace is bringing. Lawyers, in contrast, should be engaging with and illuminating the related questions of law. When lawyers do what they do best, and do what no one else can do, no one questions their value. And no one gets tired of listening.

  6. Karen,

    The fixation on funding as a means to enhance A2J certainly stems out of self-interest, and a paradigm that cannot imagine alternatives which does not increase more of the same stuff which already hasn’t worked. That much I agree with.

    But campaigns like the one featured here are important, and are a first step. As with all justice issues, there is a risk stratification involved, and the subjects covered by public education campaigns focus on the ones which impact the greatest number of people, and in the most significant ways.

    It’s not a matter of being patronizing. It’s a matter of recognizing the majority of the Canadian public have very limited understanding of the legal system. We have to start with somewhere, and the simple somewheres are a good start.

  7. Karen wrote:

    It is clear that most lawyers can only visualize access to justice as a world with more lawyers being paid to handle more cases, and their contemplation of access cannot move much beyond the question of who will be paying them if not the client. The fact that improving access to justice may require going around lawyers to court, instead of through them, is not much on the radar.

    I agree with this entirely, and I think it lies at the heart of the profession’s failure to increase access to justice primarily through increased civil legal aid funding. Legal aid should be better funded, as a public good; but lawyers, who would be the beneficiaries of that funding, are not exactly in a conflict-free position when lobbying for it. This has always made it easy for governments to dismiss the bar’s advocacy efforts as self-serving, even though the bar’s motivation in this respect is partly altruistic and partly self-interested. That’s hardly a crime — how many of us give to charity without thinking at least once about the tax deduction? — but it leaves the profession open to charges of hypocrisy, to which it has not historically responded well. It also reveals our narrow thinking about access solutions.

    Access to justice does not necessarily mean access to a lawyer. There are some legal situations that absolutely require a lawyer’s assistance: indictable criminal charges, refugee and asylum claims, child protection matters, and others. But many other legal situations do not feature the combination of complexity and consequence that should trigger a lawyer’s presence. They could be addressed by licensed paralegals and trained notaries, by legal document providers and expert applications, by online dispute resolution mechanisms, or by many of the other alternative solutions just now coming into the market. They could also be addressed by major, meaningful reform of the legal system, and especially the dispute resolution process, to reduce the vast degree of unnecessary complexity and its consequent costs.

    Truly effective and transparent A2J advocacy by the legal profession would acknowledge this reality. It would do everything possible to encourage the development, improvement, and accessibility of reliable lawyer alternatives in appropriate situations, while insisting on publicly funded lawyer involvement in the fewer but more serious situations listed above. It would grab sacred bulls by the horns — confronting the court system over its ridiculous antiquarian procedures, for example, which most lawyers fear to do because they don’t want to compromise their chances of a judicial appointment someday.

    In other words, effective A2J advocacy would involve real risk and real sacrifice on lawyers’ part. The profession risks nothing and sacrifices nothing by giving speeches and haranguing governments. But if we encourage competitors, accelerate innovation, challenge judges, and take other meaningful steps — if we put some skin in the game and some cash on the barrelhead — people will start taking us seriously, and fast.