Column

Rationing Civil Justice

We all know we have an access to justice problem in this country. Actually doing something about it is more of a challenge.

In 1999, Justice Rosalie Abella – then a Justice of the Court of Appeal for Ontario – gave a speech which should be required reading for every lawyer, every judge, every ministry of justice official, every law professor and every law student; in short, for everyone involved in whatever way in the legal profession. Clients don’t need to read the speech because they experience its bitter truths.

Sadly, Justice Abella’s speech is timeless. The only thing that has changed is Justice Abella’s title. Fifteen years ago, she sounded an alarm:

“We have moved from being a society governed by the rule of law to being a society governed by the law of rules. We have become so completely seduced by the notion, borrowed from criminal law, that process ensures justice, that we have come to believe that process is justice. Yet to members of the public who find themselves mired for years in the civil justice system’s process, process may be the obstacle to justice. It may be time – again – to rethink how civil disputes are resolved.”

Read the rest of the speech. I will simply cherry pick one of the many important points from it: “Can we honestly say that the fair resolution of such a dispute requires several years and resort to hundreds of rules? . . . People want their day in court, not their years.”

Which leads me to my brief thesis: we need to start rationing civil justice.

The demand for legal services far outstrips the available affordable supply. Traditional thinking has been to attempt to increase the supply to deal with the demand: more lawyers, more money for legal aid, more clinics, more judges, more courts, etc. I know of no jurisdiction in Canada where there is a political appetite for more public funding for any of this.

Thus, a logical response is to ration the supply of civil justice. Here, we would best to consider parallels with the medical system since much of the civil justice is publicly-funded.

In fact, all of the civil justice system is publicly-funded except for the lawyers. Taxpayers pay for judges’ salaries, court staff, security and everything related to courthouses. Yet, we allow litigants and their lawyers to dictate the length and therefore the costs in terms of both dollars and consequent delays.

We allow lawyers to dictate the length of motions and trials based on their perceived needs. This is backwards. When we go see a doctor, we don’t get to decide we want to spend an hour or two with the doctor. We get 15 minutes and that’s it.

The justice system must similarly dictate time restrictions to lawyers and litigants based on available resources. This means setting firm time limits in different areas of the law. Family law trial or other civil case? You have two days. Put forward your best evidence. If the Supreme Court of Canada could decide the Senate Reform Reference with two and half days of argument, we should have to explain why more time should be given to standard cases.

Medical malpractice case? Each side gets two experts, not five. Or better yet, one court appointed expert. Motions? Change the default to make them in writing.

This is all harsh medicine for the legal profession and the justice system but do we really have any choice at this point?

As Justice Abella wrote in 1999:

When we say, “It can’t be done,” and the public asks, “Why not,” they want a better reason than “Because we’ve always done it this way.”

She was right in 1999 and she is still right in 2014. The question is whether she will still be right in 2029.

Comments

  1. An excellent post, Adam, and a timely reminder of how long these problems have been metastasizing. One quibble: the post is a little bit coy about who precisely bears responsibility, and in what proportions, for the current state of affairs and for fixing that state of affairs. In part that coyness is understandable: the problem(s) are complex, interwoven and responsibility is, by the nature of the system, diffuse. But one group wields a disproportionate share of the power in this system: the judiciary. Experience has already established that the legal profession itself cannot be relied upon to make the changes necessary. One group already has the power to make the required changes (or at least to kickstart the process), because they are the group which, in a meaningful sense, runs the system and operates the levers of accountability. Of the various segments identified in the opening paragraph (lawyers, judges, ministry of justice officials, law professors and law students), it is the judiciary which has the ability to impose and enforce rules, to ration court resources and to steward the process of reforming the system which they, ultimately, run. It is not the case that “everyone involved in whatever way in the legal profession” has equivalent ability to effect change in the system, so we should recognize that and allocate responsibility accordingly.

  2. Lots of good ideas in here – but isn’t one effect of rationing to increase prices? or to create a black market? (I suppose ADR/ODR are a kind of acceptable alternative market, but – for enforcement and oversight reasons – not totally separate from the ‘main’ market.)

    The SCC could do the reference in two and a half days because it was not hearing evidence from a number of witnesses who had to be examined and cross-examined according to some justifiable rules. It’s not necessarily an ideal comparison for the average civil trial.

    One would have to hope that the appeal courts would support trial judges who insisted that counsel stick to what is relevant – but the courts can’t insist as a matter of law that counsel be competent, or even efficient. They can’t make counsel make good use of the time available, whether that time is limited or not.

    I recall a judge with a labour relations background saying (in the early 1990s) that lawyers could make a good living resolving a lot of disputes quickly, rather than taking years with a few. Some parts of the Bar do not seem yet to have understood that point.

  3. Interesting ideas… but I don’t think you’ve taken them far enough.

    For a start, if you want to compare to the medical model, why not look at Legal Aid. Legal Aid already works to ration time, a Legal Aid certificate specifies how much time can be spent on each step — or, rather, how much time counsel will be compensated on spending. Of course the medical model only works by providing care for all medical problems, and by prohibiting most private medical practices. Expanding legal aid to cover all legal services and preventing people from hiring their own legal counsel is not something that any government would touch.

    That said, why start rationing with Court time. Why not ration other areas? I’m sure that law students who discover Carswell’s “In a Nutshell” series would be happy if they could ration the amount of time they must spend listening to Professor Whasisname attempting Socratic methods in a Contracts class where no one ever answers … and the not-so-good Professor’s answer to any question is “What do you think?” If only Carswell would expand the series we could ration time in law school down to one year … and ration Professor’s salaries down as well since they’d be doing less.

    There is an obvious answer to the conundrum presented by Justice Abella: When we say, “It can’t be done,” and the public asks, “Why not,” they want a better reason than “Because we’ve always done it this way.” It is not an answer based on habit … unless paying our bills and feeding our families is a habit. It’s awfully easy from a full time position outside of practice to poke sticks at those evil money grubbing lawyers who take more time in Court than is needed. Students don’t sue if you cut a class a bit short and leave out a section or two in the text. Try leaving out marginally relevant evidence a client wants introduced and I’d doubt they’d be so understanding.

    As Mr. Tarantino points out, above, Judges are the ones with power in this situation. If they wish to face the angry tirades of clients who feel their matters have been cut short, they would. And the system might change. I’d not suggest holding your breath for that…

  4. Wow, obviously you don’t deal much with clients. If U of O summarily dismisses you, will you be happy with your access to justice “rationed”?

    The solution is more money and more courts and more judges. The system is starved. The stats are clear – the population has grown way faster than the number of judges and courts.

  5. Michael Plaxton

    Interesting piece, Adam.

    I’m not sure what I think about your invocation of Abella’s (really Scalia’s) distinction between the rule of law and the law of rules. When Scalia used the phrase – intending to show that the best vision of the rule of law is that it just *is* the law of rules – he was trying to make the case against judicial discretion in interpretation. (Come to think of it, his ruling today in Bond v United States could be seen as illustrative of that philosophy. But never mind.) Scalia was trying to argue against the substantive conception of the rule of law, which treats it as inherently committed to certain political values.

    When Abella invoked the phrase, contrasting the rule of law and the law of rules, she was essentially rejecting Scalia and endorsing greater discretionary power for judges – though she does so by way (it seems) of simplifying the process and making it more accessible for laypersons. The idea was (surely) that we can better achieve substantive justice by abandoning some of the technical legal bric-a-brac that, from the perspective of the ordinary Canadian, does nothing more than clutter up the process.

    When you invoke Abella, though, I don’t get the impression you’re doing the same thing. I don’t see this piece arguing for more discretion (a la Bob Tarantino’s suggestion), or even arguing for fewer rules. I see this as arguing, instead, for different rules – and perhaps even more rules to constrain legal argument and shorten trials. Insofar as this seems to favour finality and certainty over substantive fairness, you actually seem more in line with Scalia’s original use of the phrase. But that turns both Abella and Scalia upside-down.

    Just a thought. Anyway, nice work.