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To Build Public Support for Access to Civil Justice We Have to Let the Public Know That Access to Justice Is for Them Too

The results of two recent studies in the U.S. have used public opinion data to suggest that increasing public support for access to civil justice is a promising way to increase government funding.[1] The argument is that if the civil legal aid system[2] is viewed by the middle class as a program that could benefit them if they encounter trouble, rather than being only for the poor, a wider segment of the public will have a stake in access to justice and they will support higher levels of public funding. The question of how much public pressure would be required to improve the historically stubborn problem of adequate funding for legal aid and other access to justice services is a separate issue that can be set aside for now.

The American literature focuses on raising support for access to legal representation in the courts. That is important and good but access to justice in terms of obtaining help dealing with legal problems is much broader in scope. The broader view is what might usefully be emphasized in order to build public support. The results of over two decades of legal problems research, including approximately fifty major studies from around the world, have consistently told us that the prevalence of everyday legal problems experienced by the public is so great that it extends well beyond what could feasibly, or should be, dealt with by the existing formal justice system.

The results of the 2014 national survey of Everyday Legal Problems and the Cost of Justice in Canada carried out by the Canadian Forum on Civil Justice (CFCJ)[3] tell us that:

  • Within a three-year period, 48.4% of adult Canadians will experience at least one problem that has legal aspects to it, and that they consider serious and difficult to resolve. That amounts to 11.4 million people.
  • Almost everybody –95% of people— who experiences a problem does something in an attempt to resolve it.
  • Among people who say the problem has been resolved 70% feel they achieved little or nothing of what they had initially expected in the outcome.
  • About 46% of people with problems that have been resolved feel the outcome was unfair.

A good metaphor for the landscape of legal problems presented by the contemporary body of legal problems research is an iceberg. The part above the water line represents the 6.7% of the public who, according to the results of the CFCJ survey, used the courts to resolve the problem. The layer just below the water line probably for the most part represents people who should have access to the formal justice system. However, as we move deeper down the iceberg there are layers of people experiencing legal problems and needing help to resolve their problems, but probably not in the courts. This is analogous to changing ideas in the delivery of health care that not every health problem requires the services of a physician. Similarly, not every legal problem must be resolved by legal representation or in the courts.

A much broader range of responses to the legal problems experienced by the public is needed. Fortunately, as the science fiction writer William Gibson famously stated “the future has already arrived. It is just not evenly distributed.”[4] Some of the promising features of the wider landscape of access to justice have been around for a long time. Public legal education (PLE) is a major part of the access to justice programs of community legal clinics in Ontario, giving people information that enable them to recognize the signals that they may have a legal problem as well as where to go for help. There are public legal education organizations in every province and territory dedicated to informing people about the law and where they can obtain help. In this changing landscape, some community legal clinics in Ontario have developed innovative forms of outreach. In recent years, legal health check-ups, for example, have enabled community groups to identify people among their clients who may have legal problems and who can then be referred to the clinics.[5] Also some Ontario community legal clinics are developing secondary legal consultation programs that provide legal advice to community services agencies, allowing them to better assist their own clients with problems that have legal and non-legal aspects.[6] Moving across the country for another example, in British Columbia the Legal Services Society (LSS) has implemented a digital delivery system called MyLawBC. This system gives people tools to identify, manage and resolve their legal problems.

People know when they have a problem, but they often do not recognize the legal nature of it. If people don’t recognize a problem as legal they will not act on it appropriately. Compounding this legal consciousness problem, the results of legal problems research consistently shows that people often do not know where to go for help when they experience a problem. The American research is probably correct in concluding that a greater stake in access to justice by members of the public will result in greater public support for funding the infrastructure of access to justice. How do we go about doing that concretely?

We need new approaches in the quiver of access of justice services to address the vast majority of legal problems experienced by the public that are, from the point of view of the people experiencing them, serious and difficult to resolve and that have negative consequences if they are not dealt with. However, they may not need the services of a lawyer and given the cost-benefit calculation will not, and probably should not, be resolved in the formal justice system. For that to work we need to develop both digital and in-person forms of outreach that are available throughout communities so that access to justice services will have a presence there and people will be aware of them. The public legal education aspect of this will build legal capability among the public so that people will recognize that many of their everyday activities have legal foundations. When they have a problem they will understand that it may or may not be the beginnings of a legal problem and they should seek assistance before the problem becomes more difficult. More ways of helping people deal with legal problems should be offered as part of a continuum of access to justice services that provide the appropriate assistance for specific problems. The final report of the Action Committee on Access to Justice in Civil and Family Matters recommends an Early Resolution Services Sector (ERSS) that embodies this idea.[7] If we continue to build a broader and more comprehensive access to justice system, individuals and community groups will come to know about it and use it. It might be expected that as the public uses a more broadly-based system their stake in it will grow and they will let policy makers, politicians and others know that this is what they want and need. In the future, as we look at social change in the rear view mirror, as we usually do, this will all seem so very reasonable. At present it is just not sufficiently widely available or widely known.

Ab Currie, Ph.D.
Senior Research Fellow
Canadian Forum on Civil Justice

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[1] Expanding Civil Legal Aid; Strategies for Branding and Communication, The Public Welfare Foundation and the Kresge Foundation, 2013; Celinda Lake, Anat Shenker Orario, Daniel Gotoff and Cory Teter, Building a Civil Justice System that Delivers Justice For All, Voices for Justice and the Public Welfare Foundation, 2017.

[2] The United States Department of Justice describes civil legal aid as a program that offers “free legal advocacy and legal information for low- and middle-income people to help address the civil legal problems they may face.” The United States Department of Justice, “Civil Legal Aid 101 (Washington DC, 2016), online: U.S. Department of Justice <https://www.justice.gov/lair/civil-legal-aid-101>.

[3] Trevor C. W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report, Canadian Forum on Civil Justice, Toronto, 2016

[4] William Gibson is believed to have first made the statement in an interview on a National Public Radio program “Fresh Air”, August 31, 1993. It has been repeated many times by Gibson and others.

[5] Ab Currie, Extending the Reach of Legal Aid: Report on the Pilot Phase of the Legal Health Check-Up Project, Canadian Forum on Civil Justice, 2016; Ab Currie, Engaging the Power of Community to Expand Legal Services for Low-Income Ontarians, Canadian Forum on Civil Justice, 2017.

[6] Ab Currie, Legal Secondary Consultation: How legal aid can support communities and expand access to justice, forthcoming, 2017

[7] Access to Civil and Family Justice: Roadmap For Change, Ottawa, 2013 at p. 11

Comments

  1. Re: more public funding for court resources in Ontario

    Is it true that private Ontario auto insurers have roughly 55,000 cases languishing in our ON court system? Isn’t it true that these auto insurers use going to court as a hardball tactic to scare even the most legitimate, seriously injured claimants into accepting lowball settlements. If both of these are true – then why should the public help fund even more of this sort of abuse of injured ON motorists via the courts? Why not adopt a user-fee system that would require auto insurers to pick up a significant proportion of the costs of running our courts given they use them not just to litigate questionable injury claims – but rather as a claims handling hardball tactic. Asking the public to help fund even more of this abuse undermines justice rather than offering better access.

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