Cooling Trends in Civil Justice

Hot: Discussing the civil justice system

Not: Funding the civil justice system

The civil justice system will likely never be a popular subject of household discussion or even a top trending topic on Twitter for a day, but it is receiving a little more attention in mainstream and social media of late. Sadly, it is receiving attention for all the wrong reasons. In the United States, the new feature-length documentary Hot Coffee explores a nation-wide conservative campaign to institute tort reforms that restrict the liability of corporations and medical professionals, but likewise limit access to justice for ordinary Americans. British newspapers, meanwhile, are reporting on a Ministry of Justice bill that proposes to cut $550 million in mostly civil legal aid expenditures from its annual $3.3 billion legal aid budget, and also reform the use of contingency fee agreements. And back home in Canada, the Public Commission on Legal Aid in British Columbia recently concluded that BC’s legal aid system is broken and failing to meet the legal needs of individuals whose shelter, sustenance or health is at stake.

Calculated erosion of access to civil justice is the common theme to these stories. It is most colourfully illustrated in Hot Coffee where director and former personal injury lawyer Susan Saladoff condemns the motivations and tactics of corporate America and its political servants who push for liability limiters like caps on pecuniary damages and mandatory arbitration. Saladoff begins her admittedly one-sided documentary by debunking myths surrounding the famous case of Liebeck v. McDonald’s— commonly known as the McDonald’s coffee case. By Saladoff’s reckoning, big business interests have mythologized the McDonald’s coffee case and similar high-profile personal injury cases as part of a hugely successful campaign to convince Americans that their civil justice system is bogged down by countless frivolous lawsuits filed by plaintiffs seeking “jackpot justice”. She lines up Karl Rove, George W. Bush, Halliburton and Pfizer on the side of corporate greed, and Al Franken, plaintiff families and reluctant activist Jamie Leigh Jones— who sued government contractor KBR after being raped in Iraq— on the side of citizens’ rights. In Saladoff’s own words:

Because of the success of the public relations campaigns, paid for by tobacco, pharmaceutical and insurance companies, to name a few, our civil justice system is not impartial. Jurors have been led to believe that a large verdict will affect their pocketbooks. Voters believe that we have a court system out of control that needs reforming. Although there are consumer advocacy groups who have attempted to set the story straight, there has yet to be enough money to launch the kind of public relations campaign for consumers that can even begin to combat and challenge the public relations campaigns of pro-business and tort reform groups.

Saladoff hopes that her documentary will spur greater funding of consumer advocacy campaigns, and ultimately change the way Americans think about their civil justice system.

Access to civil justice is in better shape in the United Kingdom, but positioned to take a fall in the name of fiscal austerity. The Conservative-led government has drafted a bill that would remove civil legal aid from issues involving debt, government benefits, employment, immigration and housing. Funding would no longer be available to 140,000 cases involving welfare benefits, 110,000 cases involving debt matters, 50,000 cases involving serious housing problems, and 30,000 cases involving employment problems. Pundits estimate that that over a third of free legal advice centres in England and Wales would be forced to close for lack of funds. Lady Hale, a UK Supreme Court judge, has commented openly on the harmful impacts of the bill— declaring that they would have a “disproportionate effect upon the poorest and most vulnerable in society,” and wryly observing that “in England, justice is open to all— like the Ritz.” Also, in line with the American tort reform campaign, the Ministry of Justice has mobilized to suppress what it perceives as a pervasive “compensation culture” by proposing to abolish after-the-event insurance premiums and success fees (i.e. legal fees directly recoverable from the losing party).

As devastating as the proposed bill may seem to many Brits, it would at least preserve civil legal aid for cases involving threats to liberty, physical safety, and the immediate threat of homelessness. British Columbians at serious risk of becoming homeless should be so lucky as their British peers. Nearly ten years of sustained cuts to BC’s legal aid system have led to the elimination of all government-funded poverty law services, and have left citizens to largely fend for themselves in confronting civil legal issues that threaten their basic human needs. In the recent Report of the Public Commission for Legal Aid in British Columbia, Commissioner and prominent BC lawyer Leonard Doust called for legal aid to be recognized as an essential public service, and for the provincial and federal governments to increase funding for legal aid on the basis that “the provision of essential public legal services is a governmental responsibility and the delivery of core services should not depend upon charitable contributions”. BC’s Attorney General responded to the Report by characterizing many of Doust’s recommendations as “nice” but ultimately unaffordable goals in light of the overriding priorities of the provincial government— funding an over-burdened health care system being at the very top.

If popular discussion of civil justice issues is heating up at the moment, lofty talk of access to justice is quickly cooled by the bottom line of state economies. As many news stories seem to indicate, the rule of law and due process—those wonderful ideals of any respectable civil justice system— are fast becoming luxuries in the US, UK and Canada. We are led to believe that we can no longer afford them.