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Understanding the Need for More Evidence-Based Decision-Making in the Legal Sector and How We Get There

Legal institutions demonstrate both a reliance on and a resistance to evidence-based decision-making. Across all areas of the law, cases are built, argued and decided on evidence that is meticulously gathered and assessed. Rigorous fact-seeking is the standard that gives credibility to law’s oft-cited assurances of impartiality and due process. Yet, the very legal mechanisms for which this standard informs and justifies decisions are often themselves without the data necessary to evaluate the frameworks within which they operate. The result is that there is a lack of data in the legal field in Canada (and elsewhere) on the processes used to resolve legal disputes and on the outcomes of those processes for users of the justice system. To the extent that there is data, it is often incomplete, inconsistent, inaccessible, or it exists in silos that preclude any sort of meaningful analysis.[1] Evidence-based decision-making is front and centre when applying the law and often relegated to an afterthought in the administration of legal services and processes. Even now, as we charge ahead with modernizing courts and we celebrate shifts to paperless and remote processes (spurred by the pandemic),[2] how much consideration, if any, has been given to systematically assessing these changes and their impacts? How do you determine the value, adverse impacts or even the potential of a system that resists measurement? There appear to be several reasons for this disinclination to empirical research and evidence-based decision-making that is standard in other disciplines.

Legal culture

The legal profession has long held a place of prominence among the world’s professions. This veneration has persisted against the backdrop of legal structures, rules and procedures that also have remained largely unchanged. Understandably, there is resistance to new approaches and new ways of thinking that could disrupt a system that has otherwise thrived. If it isn’t broken, why fix it right? The crisis in access to justice – the inability for our justice systems to empower people to identify and understand their legal problems, and provide avenues to effectively, reasonably and justly resolve legal problems – supports the case for change. Approximately 5.1 billion people worldwide have legal needs that are not being met.[3] Through circumstance, location, discrimination and other factors, people are regularly denied access to meaningful justice. A system that works well only for the select few who have the resources to access its services is neither fair nor should it be immune to evidence-based directives that can lead to improvements. To effectively make improvements requires actionable data on what works, how, for whom, to what extent, and in what situations. The pandemic has shown that the legal sector can embrace change when necessary. The crisis in access to justice, which has been made worse by the current health and economics crises, is proof that it is necessary.

Research evidence vs. research data

The word “data” has increasingly come to be construed as negative. Privacy breaches, surreptitious sourcing of personal and demographic information and improper applications of data have contributed to growing public concern and distrust around data collection and its use. Further, details about data mining and the extent to which companies around the world have contributed to disinformation campaigns or else sought to manipulate the public with the help of data has also helped to enshroud the word “data” in a cloud of negativity.

Data is a valuable currency, more so now due to its applications and reach through online services. As privacy and intellectual property laws evolve in response to shifting questions around the collection and the use of data, it is important to note that, more often than not, access to data is a good thing. Researchers have long sought to study, test, measure, and collect data that can be applied for the greater good. The medical field’s reliance on data is proof of this. Empirical evidence—or empirical data—is necessary. It may be that legal researchers will need to do the work of assuring the public, governments and even legal professionals of the need for data that can inform pathways to improve access to justice. There is additional comfort to be found in the conscientiousness of legal researchers at universities and university-based research hubs, like the Canadian Forum on Civil Justice, to adhere to research ethics and privacy guidelines as is required. Alternately, a “rebranding” exercise could also prove to be beneficial, with legal researchers leaning more into using the word “evidence” (in lieu of the word “data”) to possibly make the prospect of data collection more palatable.

Investing in legal research

Experimentation and empirical research are processes that are commonly associated with medical and pure sciences. Testing, measuring, analysing and gathering evidence are gateways to new theories and innovations, and are prerequisites to change in the sciences. In other areas, like Business and Marketing, significant investments are made in research and development (R&D), which frequently yields high returns. By comparison, the legal field has been consistent in its passive approach to research, particularly as relates to research on legal processes, outcomes, and experiences for civil justice matters. Because of this, in Law there continues to be a lack of urgency around the need for research and data. We do not know what data is available or what data we need until we need it and we fail to see the value of sustained investments in research to address justice data gaps. The type of information that may be useful to the various stakeholders in the justice community may differ. Notwithstanding, if we are to make meaningful progress towards better access to justice, we need to have a better understanding of the different aspects of our current justice framework, their strengths, weaknesses and impacts.

Public discourse and everyday legal problems

The types of legal problems that most people experience are not the types of legal problems that typically receive attention in public domains. For many, the knowledge of how difficult it can be to navigate the legal system and the costs of resolving a serious civil or family justice problem come from personal experiences. Attention brings awareness; it generates public discourse, and it can help to underscore the extent and urgency of addressing the access to civil justice problem.[4] In 2020, protests against climate inaction, racial injustice, and police brutality demonstrated the power of the public to drive important conversations and enact change. It may be that, to help build momentum for more evidence-based decision-making in the justice sector, researchers will need to work to engage the public to help share what we know about access to justice and how much more work needs to be done.

Conclusion

The work to make research and evidence-based decision-making an important component in the administration of legal services is not beyond the scope of what is possible in the legal field. Reports from bodies like the Canadian Bar Association[5] and the national Action Committee on Access to Justice in Civil and Family Matters[6], among others, call for more coordination within the legal sector, more research and more funding and support for research and knowledge mobilization. If the legal sector is to make progress towards better access to civil and family justice, we need to understand the value of good data, support broad-based data collection and work towards solutions that are informed by this data.

Lisa Moore
Director, Canadian Forum on Civil Justice

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[1] See e.g. Focus Consultants, Civil Non-Family Cases Filed in the Supreme Court of BC – Research Results and Lessons Learned (Victoria, BC: Focus Consultants, September 2015) online: CFCJ: <https://www.cfcj-fcjc.org/sites/default/files//Attrition%20Study%20Final%20Report.pdf>.

[2] See e.g. Beverley McLachlin, “Access to Justice: A place for technology in the justice system”, The Lawyer’s Daily (July 17, 2020), online: <https://www.thelawyersdaily.ca/articles/20104>.

[3] Task Force on Justice, Justice for All – Final Report (New York: Center on International Cooperation, 2019) at 18, online: <https://bf889554-6857-4cfe-8d55-8770007b8841.filesusr.com/ugd/90b3d6_746fc8e4f9404abeb994928d3fe85c9e.pdf>.

[4] See generally Canadian Bar Association, Reaching Equal Justice: An Invitation to Envision and Act (Ottawa: Canadian Bar Association, November 2013) at 128-129, online: CBA <https://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/EqualJusticeFinalReport-eng.pdf>.

[5] Ibid at 147-148.

[6] Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee on Access to Justice in Civil and Family Matters, October 2013) at 23, online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf>.

Comments

  1. Though the word “evidence” appears in your title, the word “data” appears twice as often in the body of your article. They don’t mean the same thing.

    As a litigant (self-represented) I have had the experience of presenting evidence but I don’t think I’ve ever presented data – which is about numbers. Before we gather data however we have to decide what questions we are going to ask.

    My impression is that right there is a major problem. The legal establishment isn’t going to ask the questions that might reveal evidence it doesn’t want to face.

    I have asked some questions that have clearly made the legal establishment nervous. I have suggested lines of research that no one wants to undertake. A few days ago I fortuitously came across an article, Court Capture [ https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3683&context=bclr ] published quite recently – in May 2018.

    I found that because one of my current lines of inquiry is into the more general subject of “regulatory capture”. I have concluded that the term has much wider application than the literature to date on it seems to suggest.

    The article is about “II. Court Capture in the Eastern District of Texas” and specifically about patent cases. There may be a lot of value for us in Canada to be gleaned from this article, but as a non-lawyer I wasn’t expecting to find much that would speak to me, until I reached the last section before the Conclusion – “B. Random Assignment of Judges”. I have experienced what was clearly the opposite: in two instances in particular, the assignment of a judge whom I had previously named in a formal complaint and who then refused to recuse herself. Prior to the second instance I wrote to the Chief and Associate Chief Justices expressing my concerns and asking for “an account of the [court’s] case assignment protocols”. I received a reply that concluded, “the assignment of judges to particular cases is an important aspect of judicial independence and information relating to case assignment and the scheduling of judges’ rotas is confidential to the judiciary”.

    While the practice of “judge-shopping” as described in that article may not be possible in Canada, I believe I have read in the past some indications of lawyers expressing concerns about biased assignments of cases. Understandably that is something a considerable number of SRLs will be inclined to claim they perceive. So here I suggest are some issues worthy of research. The questions would included how often judges are asked to recuse themselves and how often they comply with those requests.

  2. Lisa,
    There should no more government funding for any of this. The provincial and federal governments have gargantuan debts and deficits, and the argument that “spending money now will save money later” almost never proves correct. We must all find ways to reduce government spending.

    As is readily apparent, the legal costs for the vast majority of solicitor services are extremely affordable and not a problem for the public on any fair analysis.

    The access to justice problem is on the dispute resolution side and it is caused by one factor: the ridiculous amount of time it takes to resolve a dispute. Time is money. The more time it takes, the more money it costs. The only solutions are to reduce the time required or to move some types of dispute resolution right out of the court system.

    Numerous ways to reduce the ruinous time required have been identified and discussed literally for decades. All that is required is for the government to implement them. I will mention two here using insufficiently detailed descriptions but enough to get the point across:

    1. In civil matters, get rid of mandatory mediations and pre-trials. Issue trial dates no more than 180 days after issuing the Statement of Claim, at which time the judges can punish any party (and lawyer) who has not, in the meantime, been reasonable and cooperative. Doing so would help (force?) the lawyers do their jobs more efficiently which is to steer their clients to early and fair resolutions by reading them, where necessary, the Riot Act of judicial bad temper and adverse cost awards for failures to agree to timely and fair settlement offers.

    2. In family law, bring to Canada the European model which, I am advised, has been in place for half a century, where child custody is automatically 50/50 (I would make it one week on / one week off with each parent) except in provable case of parental unfitness (with heavy penalties for false claims of unfitness) with both parents having the freedom to amend the statutorily imposed custody regime upon (but not until) mutual agreement. This would take much of the court battling out of the system, and leave only the money to fight over. In family law, the disputes are over Kids and Cash. Where the kids are concerned, the parents often lose their perspective where the legal costs are concerned. Where the Cash is concerned, the amount of money being fought over is self-limiting thereby reducing the time spent spent fighting over it.

    Yes, barristers would make less money per file because the files would conclude in less time, but the barristers would be able to help the hordes of self-reps who could then afford the reduced time services.

    Will the governments implement such efficiencies? I am not holding my breath, but please do not throw more tax money extracted from the beleaguered private sector at yet more studies, research, and reports that tend later to be shelved.

  3. RE: “Across all areas of the law, cases are built, argued and decided on evidence that is meticulously gathered and assessed.”

    Family law cases often turn on the “expert” opinion evidence of custody assessors, usually clinical psychologists. So one would think that the qualifications of these “experts” are rigorously checked by the lawyers who hire them and by judges responsible for the gatekeeping of experts. But too often the public sees this instead:
    https://www.thestar.com/news/gta/2019/07/31/expert-who-gave-more-than-100-assessments-in-ontario-child-protection-cases-lied-about-credentials-for-years-judge-finds.html

    Personal injury cases also turn on the evidence of medico-legal expert opinion evidence. But here, too, we see unqualified “experts,” partisan experts and experts who simply lie. For years judges (eg. Justice Osbourne) have lamented the proliferation of “hired gun” experts in this context. Dozens of journalists have chronicled this problem yet legal insiders (lawyers, judges, Rules Committee etc.) have turned a blind eye to this systemic, perennial problem of tainted evidence thus undermining public trust in the entire system.

    To assert that there is rigorous checking of expert evidence in the personal injury context is to double-down on the lie of quality evidence. Dozens of articles in the mainstream press have chronicled the crappy quality of medico-legal evidence in the ON civil justice system – despite its 2010 promise that experts are properly qualified and completely impartial. Shame on the AG and Rules Committee and shame on judges/lawyers for stubbornly misleading the public in this way.
    https://nationalpost.com/news/hired-gun-in-a-lab-coat-how-medical-experts-help-car-insurers-fight-accident-claims

    Justice Goudge’s Executive Summary on the expert evidence proffered in countless criminal cases by Dr. Charles Smith debacle speaks to the need for judges to step-up to the plate when it comes to their responsibility as gatekeepers in terms of who is a properly qualified and reliably impartial expert entitled to proffer opinion evidence. The “first mistake” Justice Goudge wrote (in is Executive Summary) was the failure of the courts (judges and lawyers alike) to hear/heed Justice’s Dunn’s early warnings regarding adverse judicial findings/comments about Dr. Smith’s partisanship and lack of competency. So it is ironic that while the ON Civil Justice Rules Committee has written that it is “good practice” to look for any prior adverse judicial comments regarding opposing experts, judges themselves continue to refuse to allow prior adverse judicial comments aimed toward expert witnesses to be adduced. The consequent proliferation of unqualified and/or partisan expert evidence tainting the system can be laid at the feet of judges who refuse to heed the warnings of their colleagues, lawyers who fail to ensurer the experts they hire are actually qualified to proffer expert evidence, and ultimately the ON civil justice Rules Committee and ON AG who have done nothing to clean up this sad mess.

    Until the insiders responsible for the delivery of ON civil justice actually do their gate-keeping of expert evidence properly – by purging fake and “hired gun” experts from the system – no one ought to use descriptors like “meticulously gathered” or “rigorously screened.” To use these is to perpetrate a hoax on the public.

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