Making a List: Barriers to Access to Justice

After engaging this afternoon in a discussion about a number of issues related to ongoing access to justice, I continued thinking about the barriers that stand between ordinary people with legal problems and their effective access to justice. Many of the obstacles are obvious and have been extensively studied (for example, see the ongoing work of Dr. Julie MacFarlane on the experiences of self-representing litigants). But not all barriers to access to justice are readily apparent.

Initially, this was just going to be a mental list, formed as part of a conversation with myself (I engage in those entirely too often) but then I remembered I hadn’t yet contributed my Slaw post for the day.

It’s important, from time to time, to remind ourselves that these barriers continue to exist despite both the ongoing efforts to remove barriers and the good intentions of legislators, regulators, service providers, lawyers and legal system participants. I suggest it is equally important to revisit the barriers themselves from time to time, to see what new solutions may present themselves, and assess how effective any previous attempts at barrier-removal may have been.

Following is my initial list of barriers to access to justice that I’ve seen or heard of people encountering:

  • Fees directly related to litigation, including Court filing fees, file copying fees, transcript fees
  • Third party fees related to litigation, including expert fees, court reporter fees, process service fees
  • Communication barriers, including where language spoken, read and understood by individual with legal problems isn’t language in which information or services are made available
  • Office hours – of lawyers, courts, government services
  • Inaccessible legal information, whether due to language and literacy or medium of delivery
  • Too many referrals made, such that an individual loses interest or feels defeated
  • Complex processes for simple tasks
  • Unclear instructions to complete documents or undertake processes
  • A gatekeeper mentality among service providers, who view their role as restricting rather than facilitating access
  • Law school tuitions and cultures that function to maintain homogeneity rather than promote racial and ethnic and socioeconomic diversity
  • Conflict of interest rules that prohibit providing even the most summary advice where there is a known conflict
  • Risk adverse legal culture that often places self-protection above the public interest
  • Slow response of legal and court systems to technological advances that could enhance access to justice
  • Intermediary helpers who don’t have adequate understanding of legal issues to make appropriate referrals
  • Misapprehensions and misconceptions about how the legal system works and what kinds of remedies and outcomes are achievable
  • Lack of motivation or lost motivation to carry out intentions and follow processes to achieve desired outcomes
  • Geographical inaccessibility of needed supports and services
  • Physical inaccessibility of services due to individual mobility issues, disability, or health
  • Over-burdened legal systems not adequately resourced in terms of staff, technology or facilities
  • Over-reliance on the non-profit sector to address issues and on pro bono supports of professional volunteers
  • Legal fees – both in terms of their affordability and their uncertainty
  • Prior or ongoing negative experiences with lawyers
  • Finding pro bono lawyers or lawyers who will accept limited scope retainers or provide alternative billing arrangements
  • Too few lawyers available in remote or rural communities, or lawyers there are in conflict and ineligible to act
  • Law school debts that make lower paying social justice positions less attractive to new lawyers

This list, though rather too long already, is necessarily incomplete, based as it is on only my own experiences and research; but, your contributions could make it more complete.

What else would you add based on your own research, experiences and anecdotal evidence? What do you see as ongoing barriers or obstacles to access to justice for those you serve, and those you don’t?

Comments

  1. I would add rogue (partisan and or unqualified) medico-legal experts to your list. The Ontario personal injury litigation system is littered with them. Insurer defense lawyers love to hire them. Plaintiff lawyers (OTLA) have for too long tolerated them because they are cash cows who generate the need for expensive litigation (and endless assessment battles) with their too often bogus but predictable accusations of malingering.
    It is good to see that finally OTLA has taken a stance and has recently called for an Inquiry into the quality of the poor medico-legal evidence tainting Ontario’s civil justice system. These “hired gun” experts who have long proliferated the Ontario auto accident system are an access to justice issue for vulnerable accident victims. It is past time steps were taken to purge them from the system.

  2. Supply of lawyers is a fundamental factor in access to justice. More lawyers, more competition, lower fees. So add to the list poor work-life balance for junior associates, structural problems causing unequal and high attrition rates from private practice, a lack of support for alternative low cost practice models from regulators, a lack of training for law students and junior lawyers that would make solo practice a realistic option, including both practice administration and technology training, limitations on non-lawyer legal work, high barriers to entry for new lawyers, difficulty in getting foreign credentials recognized…

    As you say, incomplete list.

  3. Thank you Brian and Jason Morris for getting the ball rolling.

    This post on Lawyerist today reminds me of another barrier – which is the monopoly on legal service delivery held by lawyers and the threat of prosecution for unauthorized practice of law (UPL): https://lawyerist.com/105755/now-time-rethink-upl-regulations/

  4. The latter link is a marvellous one. What it clarifies is that the list from your conversation with self (always a useful exercise, not one to be deplored!) is a list of symptoms, not problems. The problem is largely what is known as “provider capture.” This is also why the problem will not be solved by lawyers; in a very broad sense, lawyers (their collective power) are the problem, and the problem cannot also be the solution.
    None of this should be taken to be an anti-lawyer sentiment, but a statement again that both the perspective and the ideas to solve the access to justice challenge are most likely to come from outside the occupation itself.

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