Fostering a Culture of Legal Literacy

I have had the good fortune of being involved in a number of groups and initiatives aimed at improving access to justice and reforming family law processes over the last several years – from pro bono advice clinics and rosters, to public legal information websites and Wikibooks, to the reconstruction of court rules and legislation – and have recently become plagued by the feeling we’re getting something wrong, that there’s something more fundamental at play I’m overlooking. Partly this stems from the observation in Meaningful Change for Family Justice: Beyond Wise Words (PDF) that despite the innovations and overhauls to date, “reports and inquiries continue to call for further reform, saying that the changes to date, while welcome, are simply not enough.” Partly it comes from a concern that the main thrust of our service delivery just might be targeted at the wrong point in people’s interactions with the justice system, that perhaps we are shutting the barn door a bit too late.

At present, the bulk of public services seem to me to be delivered at one of three points in people’s involvement with the law: general public legal information delivered through seminars, workshops and pamphlets to people who are idly grazing for legal information or helping a friend; narrowly-focused legal information, advice and representation delivered to individuals at the moment of crisis, often following separation, a threat to take the children or service of process; or, detailed, concrete legal information and advice delivered to individuals who are well engaged in a proceeding, usually unrepresented by counsel, and are seeking details about specific issues, such as making or replying to an application, demanding or making disclosure or preparing for trial. I’m sure there are delivery models that I am overlooking, but I’ll bet this is where the lion’s share of our country’s law foundations spend their money.

The delivery of general-purpose public legal information is inexpensive to arrange, and has the merit of engaging lawyers with the community and the community with the justice system. However, relatively few people attend seminars or browse websites on family law out of curiosity. Would that more did.

The delivery of information and services at times of crisis is where legal aid, pro bono groups and other service organizations have traditionally spent their time and money. Although it demands significant human resources and a concomitant degree of infrastructure, it addresses the most visible need and provides help when it is needed most. It is also precisely the least opportune time to provide legal information and advice; people in panic are rarely able to absorb the difficult, complex and sometimes counterintuitive information required to make the difficult decisions that must be made and which shape the future course of their litigation. This delivery model also has poor spread, in the sense that there is usually only one person being helped and the services provided go no further than the individual; they tend not to improve the general understanding of the community as a whole.

The delivery of targeted information in the refractory stage between crisis and resolution often provides the greatest benefit to the individual. They are calm and able to digest the information provided, they have some experience in court and are able to sort that information into the model of the system they have begun to form, and they gain a more richly contextualized sense of the fabric of the law beyond the specific issue or event prompting them to seek help. However, as with the delivery of information at times of crisis, this model also does not distribute information beyond the individual recipient.

Assuming that my observations are more or less accurate, it seems to me that the bulk of our efforts are directed at the time when people are:

  1. the least able to absorb the information we seek to provide;
  2. the least equipped to make the critical decisions necessary for their case; and,
  3. already locked into a costly and adversarial process that is, in all likelihood, the worst possible way to resolve a family law dispute.

This leads me to that nagging question. How can we reach these individuals before they reach their Waterloo?

The current approach to public legal information, advice and representation strikes me as a bit like providing advice about dental care only when the tooth is already half rotten and the options are reduced to extraction or a root canal, without having previously discussed the importance of basic dental hygiene. In both cases, the litigant/patient receives help at a watershed moment when choice of action is limited and locked into a process that will cost the both individual and the system greatly; in both cases, the crisis might have been averted, or at least mitigated, had basic information been provided much earlier on, at far less emotional and economic cost. I suppose another analogy would be to a system of health care relying on walk-in clinics as the primary point of contact rather than family doctors providing ongoing, prophylactic care.

Since there seems to be no practical way – well, no tactful way – to discern the likely breakdown of a relationship and encourage the parties toward counselling, mediation or a collaborative process before disaster strikes, the only solution that comes to mind is a culture shift.

Our society remains deeply mired in an assumption that court is where legal disputes are resolved. Collect a random selection of passersby, and put to them a scenario of dismissal without cause, an unfair eviction or a thieving neighbour. Ask them what they’d do to resolve the problem, and the answer will almost invariably involve litigation. This, I think, is a key issue and the primary reason why our public services are delivered as they are. This may be what needs to change.

I therefore suggest we must treat legal literacy as a value as worthy of pursuit as English literacy or numeracy. It is, after all, an essential component of competent citizenship in a democratic civil society, and of understanding one’s rights and obligations as an employee, a tenant or a neighbour. Perhaps a sufficient knowledge of the principles of fundamental justice and the manifold ways in which disputes can be resolved quickly, efficiently and cooperatively, without the delay, expense and acrimony of the trial process, will usurp Judge Judy, Damages and Boston Legal as our paradigms of dispute resolution.

I am under no illusions that this can be accomplished any time soon, but if the effort begins in primary school and is reinforced and expanded in high school, perhaps the barn door will one day be bolted before it is too late. However, unless we begin this sort of messaging early and frequently, we are unlikely to shift the popular approach to the disputes of separated families, and will continue pouring buckets of money into an inherently inefficient service model with nothing being done to divert potential litigants from an equally inefficient court system. Apart from the general improvement in personal wellbeing to be had from choosing dispute resolution processes other than court, I expect that even a modest decrease in the number of people heading to court will yield substantial savings for the court system and the organizations providing public legal information, advice and assistance.

A version of this post was first published in the A2JBlog of the Canadian Forum on Civil Justice on 28 March 2014.

John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary

Comments

  1. Trade & Commerce power-s. 91(2) Constitution Act, 1867 + federal election campaign on now. This is the only possibly effective course of action for the serious problems of Canada’s justice system. They have been getting worse for decades and won’t be solved until this combination is used against the extremely obsolete management structure of Canada’s law societies. Attacking such problems is contrary to the self-interest of law society benchers. Like all of us, they want solutions, but they don’t want to pay the price of: (1) their time (of unknown and most likely prohibitive quantities); (2) trial-and-error stressful efforts; and, (3) personal risk of failure, to get those solutions. So problems like unaffordable legal services, and the very poor “legal health and knowledge” of the Canadian population, are left to get worse, decade after decade. For example, for most of the population, the Canadian Charter of Rights and Freedoms is not effectively available to them to solve their personal legal problems. They need lawyers, fully and affordably retained–and not just pro bono and limited retainer, targeted legal services lawyers. They pay for the justice system where benchers earn a very good living, compared to their average incomes.
    The population’s “legal health” should be as important as its medical health. But because of the state of law society management, that would require socialized law, which would require coordinated federal-provincial government intervention into the provision of legal 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.” At: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2647948
    — Ken Chasse, member, LSUC & LSBC, from Toronto.

  2. Mr. Boyd, you are raising such necessary questions that I feel compelled to respond despite being a non-lawyer/SRL, but apologize if by doing so I am taking up more than my fair share of airtime in what is, after all, a forum for lawyers. At the same time, I think the expertise needed to answer some of the questions extends beyond law, so venture to contribute. It is also possible that a detailed discussion becomes too specialized for this forum, in which case, if anyone wants to respond to me off-forum, an email sent to the first four letters of my last name at telus extension net will reach me.

    Your analysis of current legal information dissemination is accurate, but the schools are not the answer for many reasons, some of which I have discussed in the past on my blog (edrogue.blogspot.ca), which is mostly about public education and the problems that already plague it. Not only would your plan unfathomably burden schools, but also, it would not achieve the objective of legal literacy.

    The answer to insufficient legal literacy lies in recognizing BOTH that people know far too little about the law AND that the law is far too complex for most people to know about. The fact that it has become so complex has a lot to do with the economics of legal practice and patronage, which I wish someone would write a book about (if they already have, please let me know).

    In brief, I perceive these economics as follows:
    a) The common *civil* law is made by those who can afford to litigate; therefore,
    b) for categories of people who cannot afford to litigate, there is no common law – so the courts cannot help them even if they get there.
    c) Those who can afford to litigate can also afford political influence; therefore,
    d) for categories of people who cannot afford to litigate, there is no recourse in political action to create legislation, and
    e) even if legislation is enacted, it can be overthrown in court by those who can afford to litigate.
    f) Most of those who can afford to litigate i) can write their legal fees off as business expenses, and
    ii) are also on paid time, so
    g) those who can afford to litigate actually profit from litigating, independent of case outcomes, and are motivated to do more of it, so
    h) the gap in the logic of the common law steadily grows in the absence of deliberate correction or a change in economic forces.

    The economics of law are not the only reason why the law doesn’t make enough sense to be taught to a wide audience prophylactically. Others include its adversarial nature, another is judicial independence/discretion, and another is the extremely erudite nature of its discourse. As I said in a comment on the NSRLP blog, elite systems are by nature exclusionary, and exclusion is necessary to sustain high performance. If one wishes to broaden participation, one may sacrifice performance – and it is necessary to simplify. And simplification of the law, rather than showcasing its erudition, more often exposes the economically-driven gaps in its logic. This means that a circle-the-wagons mentality prevails in any discussion of broadening participation in the law or knowledge of it, because just as with our personalities, we all know darn well what our flaws are, but that doesn’t mean we willingly expose them or seek to repair them.

    You mention, for example, the legal parameters of being an employee, a tenant, or a neighbour, to which one might add voter, taxpayer, spouse, and parent. It might seem a pretty good idea to require a brief course in applicable law before any of those statuses is activated – a session on parenting law in prenatal class, for instance. I am not a lawyer but have explored a few of those areas of law, and defy anyone to articulate a set of legal rights or duties in any of them that is RELIABLY ENFORCEABLE.

    Unlike criminal law, in which things are simply wrong and people doing them will face consequences if caught, in civil law the outcomes are far too malleable to be coherent.

    All that said, the objective of broader legal literacy is a valid one. But in a rights-based culture, the paradox is that people have a right to remain ignorant until they choose to alter that condition. I draw a parallel to the investment market, where firms often fall into the trap of believing that investors just need to be “better educated” about their company to perceive that its real value is higher than the stock price would indicate. What I think used to be called the smart markets theory said that in fact, investors always know exactly what they need to know. Similarly, it is entirely possible that the consumer of laws knows exactly what they need to know about law now – and when that changes, they will change their knowledge level accordingly. This would mean that the most respectful and efficient route the legal community can take is to ensure that its premises make sense, and that the information is available when the legal consumer seeks it out.

    In other words: “change begins at home.”