Understanding the Impacts of Access to Legal Help

If popular culture is to be believed, the success of a legal dispute is determined foremost by the calibre and character of one’s legal representative; the ability to deliver an inspiring closing argument is a clear signal that a favorable outcome is forthcoming. The recipe, it would appear, is one part institutional knowledge added to one part intuitiveness sprinkled with a dash of showmanship. (A devil-may-care regard for the truth and facts is optional.) Notwithstanding the oft times sensationalistic portrayal of lawyers in film, novels and the news, the role that legal professionals play in securing satisfactory outcomes for people involved in legal disputes is an important question. The complexities involved in navigating much of the formal justice system assume a level of expertise acquired almost exclusively through legal training and experience. Further, in all areas of the law, the potentially life-altering consequences of a legal dispute favor hedging one’s bets with those most familiar— theoretically, procedurally and experientially— with the institution responsible for deciding their fate. There are, of course, scenarios where the underdogs representing themselves come out victorious. However, what are often missing from those narratives are the adverse physical health, mental health, financial, interpersonal and social challenges that unfold or worsen as a direct result of the experience and that sometimes persist long after legal problems are resolved. These two extremes – full representation and self-representation— are not the only possible options to satisfactorily resolve a legal dispute. Moreover, not all legal problems demand the services of a lawyer or need to be resolved through the courts. However, for legal problems that are serious enough to benefit from access to professional legal assistance in some form, and in particular as relates to serious civil and family justice problems, Canadian legal literature offers little empirical evidence of the extent to which the involvement of a legal professional affects outcomes, or short- and long-term impacts for litigants.

The Canadian Forum on Civil Justice’s (CFCJ’s) Measuring the Impact of Legal Service Interventions project (“Measuring Impacts” project) seeks to be one of the first national studies in Canada to use a longitudinal research approach to collect data on the relationship between legal help, outcomes and impacts for justice seekers. For the first phase of this project (2019-2020), the CFCJ received a grant from the Law Foundation of Ontario (LFO) to carry out a literature review, develop a research plan and create a research network.[1] This exploratory and planning phase was a necessary, initial step to lay the groundwork for a study that applies an approach that has rarely been used in civil justice research in Canada and that seeks to assess impacts over time related to ongoing and resolved legal matters.

Why does this research matter?

Legal problems are ubiquitous. In Canada, the likelihood of experiencing at least one serious civil or family justice problem at some point in adulthood is almost 100%.[2] Within any three-year span, an estimated 48% of adults in Canada experience at least one civil or family justice problem that is serious enough to require the services of a lawyer; in Ontario, the rate (pre-COVID-19) is a disquieting 54%.[3] In particular, when the stakes are high – a possible eviction, a custody fight over children, the loss of benefits on which one’s livelihood depends, to offer a few examples— the ideal for many people experiencing a serious civil or family justice problem is to hire a legal professional. The benefits of having an intermediary who is well-versed in legal jargon, knows which court forms to file and when to file them, is familiar with the ins and outs of the formal justice system and can effectively act as a guide and representative along the journey towards resolution are clear. Nonetheless, the prohibitive cost of full representation[4] means that for a majority of low- and middle-income earners facing a serious civil or family justice problem, there is no foreseeable way to make this ideal their reality.[5] The result is a growing crisis in self-representation.

One of the questions that the CFCJ’s Measuring Impacts project will ultimately address is whether there is a combination of actions that, when taken, show promise in mitigating adverse outcomes, impacts and experiences for justice seekers. Should full legal representation be considered the gold standard to address every serious legal problem? Do other interventions, along with the timing of these interventions, have as important a bearing on outcomes and impacts in the end? Put differently, the Measuring Impacts project seeks to determine the short- and long- term impacts of different legal service interventions.

Implications for access to justice

There are significant data gaps in the justice sector. Across the continuum of public and private legal service offerings, there is little actionable evidence available to the public to inform their choice (where choices exist) of pathway to resolve a legal dispute. For policymakers, legal service providers, and other justice stakeholders, funding, and other decisions often hinge on anecdotal evidence, assumptions or guesswork. Without objective, empirical evidence on what is working in the justice sector, to what extent and for whom, it will continue to be difficult to make meaningful improvements. Good data, which the Measuring Impacts project will provide, will make a significant difference to a number of different stakeholders, including:

• The Public. Having a better and more accurate understanding of the impacts of different types of legal help provides the public with the facts that they need to make informed decisions about how to deal with their legal problem(s) and potentially improves their legal capabilities. The legal community is unable to clearly communicate to the public what pathways and resources work, how, why and at what cost. Confusion over what to do, when to do it, and what people should spend means that we make it more difficult for the public to access justice – since there is not a clear path.
• Policy makers and funders. There is a lack of data around the effectiveness of legal services delivery in improving access to justice. This makes it difficult for policymakers and funders to know which pathways and tools show the most promise in particular scenarios. The Measuring Impacts project will contribute much-needed research that bridges the “justice gap” between current access to justice realities and much needed reform outcomes, as well as potential choices that need to be made in terms of policy directions, innovation and funding.
• Community legal clinics and other on-the-ground legal service providers. For on-the-ground legal service providers, decisions around how to allocate sparse budget monies are difficult. Funding one program or type of service may mean that another is scaled back or cut altogether. Having empirical data that demonstrates the impact and effectiveness of different types of legal service interventions will allow community clinics to make evidenced-based decisions about which services to fund, expand, scale-back or discontinue.
• Academic community. The data gap in the legal field is not limited to the availability of empirical research but also includes the types of methodologies employed to advance different research agendas. The Measuring Impacts project aims to collect data on legal service interventions and access to justice that is gathered through longitudinal research. It is significant that while this approach is common to other fields, it is not often used in civil justice research in Canada. A longitudinal research design will offer insights on change over time, which is often difficult to glean from other types of research.

Objective, actionable data like the data that is anticipated from the Measuring Impacts project can help to move the dial towards meaningful access to justice improvements. Learn more about the project at https://cfcj-fcjc.org/our-projects/measuring-legal-service-interventions/.

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Lisa Moore
Director, Research and Operations
Canadian Forum on Civil Justice

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[1] See Lisa Moore, Measuring Impacts of Legal Services: A Literature Review on Research Design and Methodology (Toronto: Canadian Forum on Civil Justice, June 2020), online: CFCJ <https://cfcj-fcjc.org/wp-content/uploads/Measuring-Impacts-of-Legal-Services-A-Literature-Review-on-Research-Design-and-Methodology-Lisa-Moore.pdf> and Trevor C.W. Farrow, Lisa Moore and Ab Currie, Measuring Impacts of Legal Services: Bibliography, Network and Methodology (Toronto: Canadian Forum on Civil Justice, June 2020), online: CFCJ <https://cfcj-fcjc.org/wp-content/uploads/Measuring-Impacts-of-Legal-Services-Bibliography-Network-and-Methodology-%E2%80%93-Trevor-Farrow-Lisa-Moore-and-Ab-Currie.pdf>.

[2] Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, May 2016) at 2, online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

[3] Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Region (Toronto: Canadian Forum on Civil Justice, August 2017) at 7, online: CFCJ <https://cfcj-fcjc.org/sites/default/files//docs/REGION%20-%20Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada.pdf>. In 2020, with rising unemployment, housing problems, and a range of other justiciable matters arising as a direct result of COVID-19, it can be assumed that a greater number of Canadians will experience civil justice problems as a result of this crisis. See for example John Schofield, “Surge in COVID-19 justice issues could spur Legal Aid Ontario funding crisis, lawyers warn”, The Lawyer’s Daily (20 August 2020), online: <Surge in COVID-19 justice issues could spur Legal Aid Ontario funding crisis, lawyers warn>.

[4] See Canadian Lawyer, “Fees rising before downturn – 2020 Legal Fees Survey”, Canadian Lawyer Magazine (11 May 2020), online: <https://www.canadianlawyermag.com/surveys-reports/legal-fees/fees-rising-before-downturn-2020-legal-fees-survey/329033>.

[5]Almost 25% of people who reported that they did not take any steps to resolve a legal problem indicated that cost was a deterrent. See Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Cost of Justice Survey Data (Toronto, Canadian Forum on Civil Justice, 2018) at 155, online: CFCJ <https://cfcj-fcjc.org/wp-content/uploads/Everyday-Legal-Problems-and-the-Cost-of-Justice-in-Canada-Cost-of-Justice-Survey-Data.pdf>.