Access to Justice Reform and the Data Deficit- Some Lessons Learned
On September 15, 2015 the Canadian Forum on Civil Justice (CFCJ) published Civil Non-Family Cases Filed in the Supreme Court of BC – Research Results and Lessons Learned. This study is one piece of a larger, five year “Cost of Justice” research initiative being undertaken by CFCJ with the goal of defining the economic and social costs of justice on two fronts: the cost of delivering access to justice, and the cost of not delivering access to justice.
The study was conducted by Focus Consultants of Victoria, B.C. in 2014 and 2015 in the Supreme Court of British Columbia. It was premised on the fact that, while we know that approximately 2% of cases filed in section 96 courts resolve by trial, we know almost nothing about what happens to the other 98%. The assumption was once commonly made that because these cases are not tried, they have settled. However, research into unmet legal need and unrepresented litigants suggests that many of these cases do not ultimately resolve.
Accordingly, the study aimed to learn more about the trajectory, characteristics and outcomes of these cases, and about the experience of the claimants in terms of their satisfaction, ancillary costs incurred and other impacts. Because the study was particularly interested to acquire data on the proportion of civil cases that appear to drop out or remain unresolved, it is referred to as “the attrition study.” It also intended to address questions about why cases do not continue within the court system and what happens to the claims, and the claimants, after they leave the system.
Numerous reports exploring remedies to the access problem call for studies like this. They observe that current reform efforts are being seriously handicapped by a paucity of hard, empirical data about Canada’s civil justice system. They observe that much data is simply not captured. The data that does exist is low quality and fragmented, and there is limited capacity in the system to organize or use it.
The attrition study experienced these difficulties first hand. It confronted multiple problems in trying to collect data from the 500 motor vehicle accident and general civil (non-family) files in the study. The researchers experienced diverse challenges related to the definition and extraction of an appropriate sample of cases, limitations related to the currency and completeness of court records, an inability to contact claimants to discuss their court experiences, a lack of understanding by claimants of the civil legal processes they were involved in, and an inability to engage civil lawyers in the research.
In an effort to address these constraints, changes were made to the original methodologies used in the research. In the face of incomplete or uninformative file records, unavailable claimants or claimants with little understanding of the process or outcome of their case, telephone interviews were conducted with lawyers who represented the claimants in the original sample. There is little incentive for counsel to take the time for such interviews and, when they do, confidentiality concerns mean that questions about specific claimants cannot be answered. The researchers collected what general information they could from lawyers.
Having to rely on very small samples, the researchers reported findings from both claimant and lawyer surveys. These findings tentatively suggest, for example, that a majority of motor vehicle accident and general civil cases do eventually settle. A number of factors may impact these findings, including the apparent significant impact of contingency fee arrangements on the settlement rates in personal injury cases. Ultimately, the results were not robust enough to support conclusions that could be reliably generalized to these or other civil non-family cases in BC.
Despite the want of generalizable findings, the attrition study does potentially add value to the future development of research related to civil court processes and the experiences of litigants. The report includes a detailed discussion of the research challenges that were encountered, their impacts and the attempts that were made to address them. Many of these challenges will be relevant to other researchers and to institutions attempting to conduct research involving civil court records or claimant perspectives. The report includes recommendations to improve the planning and implementation of this type of civil justice research.
In this respect, the report observes that to understand the factors that impede or facilitate access to justice, it is essential for researchers to be able to engage with users of the justice system. “For this engagement to occur, it is also necessary for government, the courts and justice organizations to appreciate the factors that facilitate or impede researchers’ access to users and/or information about the user experience.”
The report stresses, for example, the value that would be served by complete and accurate court records that reflect current file status as well as information as to whether and how a case has been resolved. Court files that disclose case trajectories and the nature and timing of case outcomes in more detail would be enormously useful from a justice research perspective.
It would also be useful to be able to ascertain from court files when ADR or informal judicial settlement processes are used, and to differentiate between represented and self-represented litigants, as well as between individual, small business and corporate parties. Registries are urged to consider if forms initiating process could break down case types with more particularity, and consistently include contact data for the parties.
The Canadian Bar Association and the national Action Committee on Access to Justice in Civil and Family Matters have been trying, over the last couple of years, to stimulate interest nationally in empirical justice research. They are motivated by the recognition that effective justice reform must be founded on a much more comprehensive and empirically sound understanding of the operation of the justice system. In furtherance of that objective, the attrition study’s recommendations should be considered by those in the justice system with control over data collection.
By M. Jerry McHale, QC – Lam Chair in Law and Public Policy, University of Victoria
As those who know Jerry McHale can attest, he has reflected deeply about this topic. His views are always welcome and provide much food for thought. There are many aspects of his essay that merit attention and discussion. For present purposes, I will highlight just one and offer what I trust will be received as a respectful and constructive commentary. This sentence stood out for me: “Court files that disclose case trajectories and the nature and timing of case outcomes in more detail would be enormously useful from a justice research perspective.”
Our justice system is premised upon keeping much of what parties to litigation do about their dispute behind veils of privilege, confidentiality and secrecy. Solicitor-client privilege is one (as the article notes). Confidentiality and privilege pertaining to “without prejudice” settlement negotiations and settlements is another. The “implied obligation of confidentiality” is another. Discovery rules and rules of evidence aim not just to focus parties on issues, but also preserve privacy as to what is not needed. Legislative and judicial encouragement of ADR and private arbitration may be added to the list of “veils.” All of those are in place for good reason if one assumes that litigation belong to the disputants, not the courts or the public.
That must be the bane of the existence of research projects into the delivery of “access to justice” and to the cause of those who urge further reform of the civil justice system. If 98% of all cases never get to trial, then what happens in the 2% may well not be representative at all. Also — contrary to what the article seems to assume — the resolution of the 2% does not necessarily represent “justice.” And the 98% plus 2% is just a subset of all actual or potential disputes, most of which never become formal litigation cases.
The point may be illustrated by considering (a) the number of disputes that get resolved in the “marketplace” and never result in formal legal proceedings, and (b) the number of trial decisions that are “wrong.”
With regard to (a), “law and sociology” studies reflect on how most people most all of the time resolve issues without resort to the courts. Businesses accommodate customers who complain, even where they think that legally they are in the right. People who queue to buy a ticket use frowns, stares and glares to enforce compliance with the queuing custom. A little book by Yale’s Professor Michael Reisman (Law in Brief Encounters) is a helpful read to understand how many and varied are the social processes for encouraging and enforcing cooperation without resort to the state’s formal processes. So too is reflecting on the fact that as a species we would have died out long ago if elementary social cooperation were not the norm (which makes the law’s general premise that people are entitled to be self-regarding and non-cooperative ironic, at least). Perhaps such resolution of issues is not solely based on justice concerns, but includes equity, mercy, goodwill, reputation, as well as simply a desire to move on with life.
With regard to (b), the incidence of trial decisions reversed in whole or in part on appeal is high (40% of civil cases appealed). And that is so notwithstanding rules of law relating to appeals (e.g., Housen v. Nikolaisen) that trial judges are entitled to deference as to facts, mixed fact and law, discretionary matters and so on. Deference is not justified by arguing that trial judges are always right about such matters, but rather that having a final outcome is preferable to having a reversal that encourages more appeals in the name of achieving “perfect justice” (which dovetails, of course, with “justice as proportionality” arguments that getting what is arguably the “right answer” is often not worth the public or private cost).
If one assumes that “access to justice” and “justice” are public goods that the state takes over as soon as it detects a legal dispute (e.g., on filing a Notice of Civil Claim), then one’s perspective changes. In such a state-driven exercise, not having as many trials as there are lawsuits is taken (more or less explicitly) as a failure of the system and a denial of “access to justice.” Judges managing cases assumes greater importance. And mandatory reporting by private litigants as to how they bring, prosecute, settle, abandon or take their cases to judgment (“enhanced interrogation” of litigants) is seen as a diagnostic tool enabling further state involvement.
A perspective that regarded individuals as being free to frame, manage and resolve their disputes as they deem best and to involve the state (e.g., judges) only on a “by exception” basis, would likely come to a different assessment of what access to justice entailed. No doubt there are legal and political philosophies behind each approach, the study of which would enhance an understanding of how things are done and what changes, if any, should be considered.
That is not a counsel for avoiding study of how people resolve their differences, of course. It does, however, suggest caution about the extent of mandating reporting, particularly if it would involve over-riding privileges, confidences and privacy issues that have their own value and importance. And it is respectfully offered as a reminder to be careful as to premises and perspectives.
Mr Holmes makes a lot of good points about why court files should not contain all the information that Mr McHale would like (for good analytical reasons) to see. Just as law professors are heard to complain that the parties have settled some case that would have been a great precedent on a difficult point of law, so too parties settle or drop lawsuits that may at one time have represented an important concern of theirs.
It is vital to remember that the action belongs to the parties, not to “the system”.
I think there was an Ontario figure from the 1990s that fully half of all civil actions started in the Superior Court never even attracted a statement of defence. Some US courts had similar figures. So whether the suit was launched by way of putting pressure on the defendant – and it worked, or the bluff was called – we don’t know. But those claims do not necessarily represent a failure of access to justice.
On the other hand, I have heard senior judges say that half of the cases (presumably once disputed) settle for the wrong reasons, i.e. not because the parties have come to an acceptable compromise but because they, or one of them, have run out of money or patience or witnesses and cannot or will not continue, however unsatisfactory that may be.
That observation was one of the main reasons to promote early mediation – to get the parties to address their interests before their patience or resources were exhausted.
A “civil service” type support service is needed by all law societies. To provide the necessary continuing and evolving expertise and analysis, and recommended implementation and innovation, a permanent, national institute should be created that is available to all of Canada’s law societies. It would be funded by enabling CanLII to provide legal opinions at cost to all lawyers, judges, and litigants, as explained in, “A2J: Preventing the Abolition of Law Societies by Curing Their Management Structure Defects,” (Slaw, September 25, 2015;
at: http://www.slaw.ca/2015/09/25/a2j-preventing-the-abolition-of-law-societies-by-curing-their-management-structure-defects/).
Both of the comments posted so far are, to me, very disappointing.
They are in line with what I perceive to be a desire of the legal profession to keep from the public any knowledge whatsoever of what they do, while continuing to enjoy large incomes. My perspective is based on litigation experience of a sort that may be relatively rare.
Without the aid of counsel I’ve faced repeatedly powerful entities, including the B.C. provincial government and most recently the Law Society. In every action, I wanted everything – let me repeat that – everything – to be disclosed to the public. The other parties clearly wanted nothing disclosed, and so I’ve seen a number of the tools deployed, including one particularly interesting example when I went to the provincial OIPC office seeking access to an archive of documents held (apparently) by the Ministry of Attorney General. The OIPC, after a great deal of game playing and delay issued an order denying me that access at the very same time that the Commissioner, David Loukidelis, accepted the offer on which he had been quietly deliberating to become Deputy Attorney General.
Over to you Mr. Holmes. Does that not sound just a little suspicious?