In my work with the Canadian Bar Association’s Access to Justice Committee and the Association for Canadian Clinical Legal Education, I have observed three major research opportunities for law faculties that are not being given the attention I feel they demand. These opportunities involve “big picture” issues in our Canadian legal system, and I believe law faculties (with some exceptions) do not focus enough on them. Here they are:
1. Access to justice
This is the biggest legal issue of our generation. Our democracy is based on the rule of law, and if our citizens cannot get access to the law, they lose faith in our system. I consider access to justice as being the foundation of our democracy. It’s starting to crumble.
The CBA issued its Equal Justice report in 2013, and the National Action Committee issued its report the same year. Both reports offer ideas for further development. The Chief Justice of Canada has spoken out many times on the importance of the issue.
However, one obstacle facing governments is the lack of data and research. I am aware of 3-4 law schools who have major access to justice research under way, and a number of law schools have smaller efforts. However, too many law schools are missing out on this opportunity. There is scope here for joint efforts among law schools.
2. Changes to the practice of law
There have been major changes to the practice of law, and more are coming. Just a few of these changes involve fixed billings, the use of technology, and the appearance of paralegals. More insurance companies are hiring in-house lawyers to represent them, rather than retaining outside counsel. Examining these trends and their impact on law firms and their service delivery model could be a joint research opportunity for law schools and business schools.
There is one more big issue coming that could disrupt the entire legal profession: artificial intelligence. What form could it take? What impact can it have on the relationship between lawyers and clients? It’s still early, but this could be the topic of shared research opportunities between law faculties, computer science faculties, business schools, and the private bar.
3. Dysfunction in the court system, including the advent of self-represented litigants
We have all heard the stories about delays in our court system. The Jordan decision has forced governments to give priority to criminal trials, which in turn has resulted in lengthy delays in civil cases. One Toronto practitioner told me recently that he was given the earliest available Superior Court trial date: fall 2019.
In Ontario, 50-70% of parties in family court do not have a lawyer, which only serves to slow down the system. It can take years to get to trial if a party decides to be obstructive. The losers are those with low incomes and their children. Judges are learning to deal with self-represented litigants every day in every level of court.
Julie Macfarlane at Windsor Law has done excellent work with her National Self-Represented Litigants Project. Research on self-represented litigants does not appear to be a priority elsewhere across the country.
I challenge law faculties across Canada to take a hard look at these topics that fundamentally affect the courts, the profession, and our citizens. It’s time we stepped up and took ownership of these issues.
I would appreciate hearing from faculty members who are considering research in these areas. Many of the student legal clinics across the country have data that could be mined for research purposes. If we put our heads together, there are all kinds of opportunity for collaboration.