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