McJustice – Who’s Lovin’ It?
This column is an unintended and rather abstract follow-up to my last column entitled “Self-Represented Litigants Are Not Things” on the need for reformers to better consider the unique “real life” perspectives of lay litigants when redesigning justice system rules and processes. (It also marks the first time that I have written a column using the first person singular— a monumental occasion for me in overcoming anal retentive tendencies and long-misplaced notions of “proper” writing style.)
My involvement in the upcoming Vilardell v. Dunham appeal and extended reflection on the difficult task of facilitating fair and efficient resolutions to messy and multi-faceted life problems brought me to the writings of modern thinkers like Michel Foucault, Jürgen Habermas and George Ritzer. Their far-ranging and impossibly dense theories on the relationship between the state and the individual provide refreshing balance to the practical micro-system focus of countless recent justice reform papers.
I find Habermas’s theory of lifeworld and systems interchange particularly compelling when set next to the complicated and impersonal structures of our slowly churning justice system. By lifeworld, Habermas means the reservoir of implicitly known traditions and values that are embedded in language and culture and drawn upon by individuals in regular communication. Problems arise when the logic of an administrative system supplants the logic of the lifeworld and intervenes in the ordinary processes of agreement among individuals and communities. The laws and legal procedures of our justice system, for example, are increasingly de-coupled from common sense (lifeworld) conceptions of what is fair and just. Our justice system does not dispense justice so much as it rationalizes the growing juridification of everyday life.
According to Habermas, juridification increasingly serves to reduce citizens to clients of bureaucracy. Litigants are less actors in court than users or consumers of the justice system. This dynamic was at issue in Vilardell where the Attorney General of British Columbia defended court hearing fees on the view that going to court is a form of consumer choice in a “user pay” environment. The trial judge emphatically rejected such a characterization of the justice system (in general) and the courts (in particular). He concluded (at paragraph 425) that, “courts exist as a place where questions of value matter, where individual voices can be heard, and where the deficiencies of bureaucratic and systematic modes of thinking may be carefully examined, rather than abetted. Courts cannot be enlisted into “systems thinking” without harm to their functional essence.”
Still, the trend toward treating litigants as justice system users is part of a larger shift toward what Ritzer termed the “McDonaldization” of bureaucracies. The McDonaldization model for organizational development is Ritzer’s update on Max Weber’s theory of rationalization. It includes four key concepts: efficiency, calculability, predictability and control.
McDonald’s is arguably the world’s best-known icon of business efficiency; it pioneered the transformation of customers into unpaid workers who wait and bus their own tables, and who customize their own food. Customers are encouraged to move on at regular intervals by drive-through windows and seating that is less than comfortable. McDonald’s also emphasizes things that can be measured, counted and quantified (e.g. “over 99 billion served”) over quality aspirations. The Big Mac is known for its size rather than the quality of its beef, and any McDonald’s meal can be upsized if the customer wants more. Of course, the McDonald’s dining experience is nothing if not predictable. Customers flock to the restaurant knowing that the food and décor will be the same regardless of location. And finally, McDonald’s exerts meticulous centralized control over its restaurant environments through non-human technologies and highly regimented assembly-line food preparation.
There is no knocking efficiency as a laudable goal in our justice system. Lord knows that much of the present crisis in unequal access to justice is due to the complexity and delays of the current system. But some justice reform initiatives hint at dangers associated with the increased rationalization of justice system processes. The recent Final Report of the Chair of the BC Justice Reform Initiative, for example, is unabashed in recommending a “true systems approach” to reform; “[t]his means that there must be clear and accepted goals, disciplined execution, and clear performance measures that are monitored and evaluated.”
Among other things, the Report calls for greater adoption of known “business intelligence” methods for performance data collection and analysis (i.e. calculability), greater incentives for and instances of early guilty pleas (i.e. predictability), and greater use of technologies and overall management of the criminal justice system by a centralized Criminal Justice and Public Safety Council within the Ministry of Justice and Attorney General (i.e. control). And it suggests (at section 1.1.8) adopting a court scheduling process more akin to the check-out process at Urban Fare (an upscale BC grocery chain that funnels customers into one line-up for several cashiers) than the traditional check-out process at its poorer cousin Safeway.
The Report recommendations may provide exactly the type of reforms needed to overcome a “culture of delay” and to make our justice system work faster if not better for everyone involved. But if Habermas is even halfway right, then they could imperil the legitimacy of the justice system as a whole. If people begin to believe that fair and full justice system outcomes are largely unachievable because the state has placed its own organizational interests ahead of the interests of individual litigants and observers as justice seekers, then a much greater crisis than the perpetuation of a culture of delay will ensue. It is always easier to criticize proposed solutions than to propose new solutions, but any solution to making our justice system more effective will surely rest upon the ability of litigants to fully communicate their particular lifeworld experiences. And that is not always tidy and predictable.
Alternatively, we could put our money where our mouths are and spend more on judges, prosecutors and courtrooms. Some of the justice issues arise simply because there aren’t enough bodies to do the job.
The present federal government will spend billions on new prisons and pass new criminal laws. But that’s at the end of the chain. The provinces deal with the start of the chain, as they are responsible for paying for justices, prosecutors and courts. Arguably, if we had more of each of these three things, we could process more criminal matters to fill those prisons being built and administer the new criminal laws being passed. No one seems to want to do this, so we regularly hear of criminals avoiding prosecution because the system is under too much strain. A veritable paragon of justice that.
As for the civil system, well, one of the bigger problems there is access to competent legal counsel. How that is acheived I don’t know. Lawyers aren’t lowering their rates, and the demands of practice are ever increasing and grueling as all get out (I know, been there, done that, burnt out and out of law).
All that said, I’m sure we’ll muddle through and not too much injustice will done.
I share your observations, Wet One. Of course, we’ve all been trained to accept that there is no more money for governments to spend on anything justice-related, and that instead we all have to think creatively to conjure up ways for the justice system to operate with more “business-like”efficiency. It may be true that nothing drives innovation quite like necessity, but where tax dollars are spent and the degree to which tax dollars are raised are matters of political priority. Sadly, investing in the start of the justice system chain (as you put it) doesn’t seem to garner too many votes or generate much public goodwill over a four-year term in office.
One thing I see as inevitable is the need to reform justice processes so that they are much more manageable and accessible for self-represented litigants. I don’t think tomorrow’s SRLs will make their way back to lawyers even if lawyers become much more affordable. I think SRLs are increasingly self-empowered– which is generally a good thing.
on the civil side – the system is such that
1. lack of competence, regardless of the reason, makes litigation more expensive;
2. the mandatory mediation requirement makes litigation more expensive – why make a recommendation your client might not like if you can have somebody else give the client the bad news;
3. pre-trials make litigation more expensive – why settle before pretrial (same reason as 2);
4. proportionality was designed to make discovery less expensive – but that presumes competence;
5. competence is not necessarily consistent with the must lucrative return on one’s practice;
6. as a profession, we always put our client’s interest against our own. That’s why we send always send the very lucrative file (in an area that’s outside of our speciality) out of the office to another firm (even if we don’t get a piece of the action), right?
I could go on but I won’t.
A Voice From Outside the Box
Jamie, I’m going to forward you a copy of an email I just sent to someone whose career has been largely focused on the notion of “public legal education” (PLE).
I believe the decades of self-serving rhetoric are soon going to be answered by a new reality to which the legal establishment is still seemingly oblivious. The arguments about what is wrong and what is needed all focus on money so that no other perspective can be considered.
As an experienced SRL who has been before a succession of judges and twice filed complaints with the CJC I know that no amount of money can buy what’s really missing.
If you want to quickly review my credentials go the the BC courts judgments database and enter my surname. It is sufficiently unusual that you will get only the chronology of my journey through the superior courts. In addition there’s a separate record of my engagements at the BCLRB, and I have been before two Provincial Court judges, most recently last January. That’s what the last BCSC decision is about, and it is that hearing that sent me back to the CJC.
I’m convinced now that an essential step in fixing what ails the system is getting rid of the monopoly granted by provincial statute to each of the law societies. I suggest that you start contemplating that prospect because I believe it is inevitable.
Jamie, I loved this: Our justice system does not dispense justice so much as it rationalizes the growing juridification of everyday life.
I sometimes wonder what our justice system might look like if we could get a ‘do-over’ – tear down the institution and start by putting people (and their messy problems) first. Can you image a justice system with customer service at its core?
Dave,
I suppose it’s easy for me to say as a lawyer who only does pro bono work while being paid a salary to encourage other busy lawyers to do more pro bono work on top of their paid work, but I can certainly envision a justice system that is an effective and fully accessible dispute resolution and rights enforcement system first, and the driver of a lucrative legal services industry second. Built from scratch to respond to the needs of modern litigants, I imagine that the system would look very different from how it does today.
I know it goes against the grain of our increasingly commodified world and sounds a bit flakey, but I prefer to think of litigants (at least individual litigants) as “justice seekers” rather than users or customers. That puts the focus properly on the all-important ends (just outcomes) rather than the ever-shifting means (various services).