A2J: “Let Them Eat Cake,” So, Let Them Use Alternative Legal Services

The cynical phrase, “Let Them Eat Cake,” is more appropriately attributed to Marie-Thérèse, the wife of Louis XIV, 100 years before Marie Antoinette, the wife of Louis XVI of France, about whom such royal indifference to starving peasants pleading, “bread, bread,” is alleged most frequently. If they were begging for bread, they certainly didn’t have cake. So to prevent a law society from appearing to be equally indifferent to the suffering of people who cannot afford lawyers, how should law society benchers explain their intense promotion of alternative legal services, and the resulting cynical phrase: “let them use alternative legal services”?

I’ve written several articles having the theme that instead of offering the residents of Canada alternative legal services, its law societies should be trying to solve the unaffordable legal services problem, i.e., that the majority of the population cannot obtain legal services at reasonable cost. For a detailed presentation and analysis of the alternative legal services provided by Canada’s law societies, see: “Access to Justice: A Critique of the Federation of Law Societies of Canada’s Inventory of Access to Legal Services Initiatives of the Law Societies of Canada.”

By advocating the use of alternative legal services a law society declares to that majority: “Never again will you have an affordable lawyer who will do all the work needed to deal with your legal problems. But, we have the following alternative legal services.” Such “alternatives” are based upon a strategy of “cutting costs by cutting competence.” They are, for example,

  • targeted (unbundled) legal services (as distinguished from a full retainer to provide all of the legal services necessary to deal with clients’ legal problems);
  • clinics of various types;
  • paralegal and law student programs;
  • family mediation services;
  • social justice tribunals;
  • arbitration and mediation for alternative dispute resolution;
  • public legal education and information;
  • advice from non-lawyers;

And other support services, for example:

  • summary advice and referrals;
  • public legal education and information
  • assessing legal needs (surveys);
  • prepaid legal insurance plans;
  • self-help and legal information services;
  • court procedure simplification projects;
  • The National Self-Represented Litigants Project
  • pro bono and low bono (reduced fees instead of pro bono’s no fees);

These programs provide some improvement in access to justice and legal information, but far from enough to provide a solution to the unaffordable legal services problem. Therefore they should not be used as a replacement for lawyers’ providing fully competent and ethically provided full-retainer legal services at reasonable cost. They should not be allowed to become the law societies’ permanent and only answer to the unaffordable legal services problem. It is contrary to the duty and purpose of law societies that alternative legal services be used as a reason for not attempting to find a solution to the problem, i.e., “let them ‘eat’ alternative legal services instead.”

And all of them should not be referred to, as the above cited, “Inventory of Law Societies’ Initiatives” text does, as being, “legal services.” Some of them involve providing legal information and “self-help”; not legal services.

Such a declaration by a law society of “alternatives” to affordable legal advice services, is a confession of failure—a confession of an inability to serve its purpose in law, i.e., to regulate the legal profession so as to make legal services adequately available: e.g., s. 4.2 of the Ontario Law Society Act. So, replace them if they cannot fulfill their purpose.

Such alternative legal services mean a shifting of decision-making from judicial to administrative services. Judicial decision-making provides five advantages not adequately provided by administrative agencies: (1) a clear and exact burden of proof; (2) an opportunity to rigorously test the evidence for accuracy, integrity, and persuasiveness; (3) a thorough debate as to the correct interpretation and application of the law for the issues and evidence involved; (4) a decision by a truly impartial and competent adjudicator; and, (5) the right to a jury trial, in situations allowed by law. When an “administrative” approach replaces a judicial approach to decision-making, the counterparts to the first four are much compromised by the limitations, weaknesses, conventions, biases, and institutional cultures of the administrative agency.

But unfortunately and nevertheless, a “cutting costs by cutting competence” strategy is being used to cope with the unaffordable legal services problem. Because no effort is being made by law societies to provide the leadership to replace the obsolete method by which legal services are provided, that “shifting” away from the judicial to the administrative will increase. For that majority that cannot afford legal services, particularly lawyers’ legal advice services, the courts will become much less important. The trial courts will be used only by rich litigants and for criminal trials. In the public mind, being a trial judge will be associated with only those purposes—to provide the rich with expert adjudication and protection.

To the contrary, the independence of the legal profession from government intervention is essential not only to the independence of the judiciary, but also to respect for the judiciary. But current law society performance invites government intervention, and makes public respect for the justice system more difficult to maintain.

And this transition from “the judicial to the administrative” is happening without participation by the public and without public approval. There is a “democratic disconnect” in that law societies’ duty is to the public, but benchers are elected by the members of their law societies. Members’ complaints receive benchers’ attention and that public duty is very inadequately dealt with, if not ignored. And governments are not holding law societies accountable for their use of the legal profession’s monopoly over the provision of legal services. And “lay benchers” are not the experts or “voice of the people” needed. This is the 21st century, not the 19th century. And law societies don’t have a government-type civil service to provide the necessary continuing expertise for solving such problems as unaffordable legal services. Which leaves nothing within law societies’ resources to attack the problem but benchers. But they are part-time amateurs in that they don’t have the necessary expertise, nor do they try to obtain it. It is not a legal problem. It needs an expertise that lawyers and law societies don’t have.

To provide the necessary continuing and evolving expertise, a permanent, national institute should be created, available to all of Canada’s law societies. It would be funded by enabling CanLII to provide legal opinions at cost, as explained in, “A2J: Preventing the Abolition of Law Societies by Curing Their Management Structure Defects,” (Slaw, September 25, 2015).

As a result of not dealing with the problem, the way the work is done so as to provide legal services is obsolete. There has been no innovation to move from the present “handcraftsman’s” method, used by cottage industries, to a support services method of production. Wherever in the production of goods and services there has been the necessary pressure to make it happen—such as the competition of the commercial marketplace—that transition has occurred. And there are also other forms of that necessary pressure. For example, no doctor’s office provides all treatments and remedies the way a lawyer’s office does for all clients. All parts of the medical infrastructure of services are highly specialized, interdependent support services. In contrast, the law firm is a producer without comparable support services. Therefore the unaffordable legal services problem is inevitable.

It cannot be solved because law firms don’t have the necessary high degree of specialization and scaled-up volume of production that support services provide, e.g., the huge “parts industry” that provides very sophisticated support services to the automobile manufacturers. Therefore the cost-efficiency of all law firms can never be made sufficient to solve the problem. No matter how much it is improved, a bicycle cannot be made to have the speed, capacity, and cost-efficiency of a motor vehicle, nor a motor vehicle with wings be made to serve as an airplane.

All that has been written about the problem is based upon the assumption that the solution lies in bringing about the right improvements to the present method of providing legal services. The cause of the problem is not the lack of the right improvements, but rather the method itself. It hasn’t ever changed. Doctors used to work separately and individually like lawyers still do now. But since then, there has been constant pressure to force constant innovation in the methods of delivering medical services. There has been no comparable pressure on the legal profession, therefore there has been no comparable innovation. And worse, there has been no innovation in the management structure of law societies, and as a result, no leadership to bring about the necessary innovation in the production of legal services.

So it is that the third most important professional service provided to the public (after medical and educational services) is managed by part-time amateurs, just as it was when Canada’s law societies were created. If they had had strong leadership instead of leadership dedicated to maintaining its popularity with their lawyer-members, the legal health of Canadian communities would be considered to be as important to their wellbeing as their medical health, and their lawyers as important to them as their doctors. Instead, in the present circumstance wherein the majority of the population cannot obtain affordable legal advice services provided by lawyers, an attitude and performance that says, “let them use alternative legal services,” is an invitation to a brutal revolution—a revolution that will bring about the amputation, if not the complete elimination, of law society powers, purpose, and prestige.

To provide a more in-depth analysis, I’ve written these articles (pdf downloads from the SSRN):

(1) “A2J: Preventing the Abolition of Law Societies by Curing the Defects in their Management Structure: A Solution to the Unaffordable Legal Services Problem” (24 pages);

(2) “Access to Justice — Unaffordable Legal Services’ Concepts and Solutions” (35 pages);

(3) “Access to Justice Support Services or Government Intervention — A Solution for Canada’s Unaffordable Legal Services Problem” (67 pages);

(4) “Access to Justice – Canada’s Unaffordable Legal Services – CanLII as the Necessary Support Service” (65 pages).


  1. A2J is a multi-faceted issue and I would have extensive comments about a number of matters that I feel need to be discussed (some of which I feel are not) in any discussion about A2J. Some of which you and I are likely to disagree about.

    However, I do wonder about the utility of any analogous reference to the “innovation” of the medical professional services model – especially if we presume as fact that at all times we have to maintain an independent bar/bench.

    Canada’s single payer system does not seem compatible with an independent legal system. Even with the single payer system, our health care costs are a substantial component of governmental budgets and are likely to rise to unsustainable levels with our aging population without further changes to the system (some of which are likely to reduce the ‘competency’ of those providing health services – i.e. less reliance on doctors).

    No one could argue with a straight face that the medical system in the U.S. – and whatever innovations have been introduced in the last 50 years – have made it an affordable model. The role of health care costs in personal bankruptcies alone would establish those “innovations” have not assisted “A2Health”.

    Professional, expert management in both the US and Canada does not appear to have led to an affordable delivery model that we can then look to for guidance or lessons for improving our model.

    And in both cases, there are massive and significant limits on the independence of the medical profession – either from direct pay or from the insurance companies or health management organizations. Certainly those limits appear on the face to be at odds with the independent bar and bench you extol above.

    This, of course, is not an argument against innovating the method by which we provide legal services. It is simply a question as to whether we can/should learn any lessons from the so called innovations we have seen in medical services?

  2. “There has been no innovation to move from the present “handcraftsman’s” method, used by cottage industries, to a support services method of production. Wherever in the production of goods and services there has been the necessary pressure to make it happen—such as the competition of the commercial marketplace—that transition has occurred.” This quote brings to mind the term “business of law”. What is the business of law?

    If the business of law entails adapting certain business concepts why is it that automobile manufacturers, retailers (clothing, groceries) have products and brands to cater to different income levels. Why is it that law firms can’t or wont. Why is it that high-end law firms can’t like the automobile industry and retailers develop brands or storefront versions of themselves to cater to mid-income and low-income clients.

    Or, perhaps the legal profession might look to the professional sports industry where professional teams have what are called farm teams or feeder teams whereby talent can be trained, nurtured and mentored to, if necessary or when ready, step into the big leagues. Having storefront offices meeting the needs of mid and low-income clients can act as a “farm team” for the firm. They would not only be serving the community but its also an investment in the firm’s future and in the future of the legal profession.

  3. Ken you say, “instead of offering the residents of Canada alternative legal services, its law societies should be trying to solve the unaffordable legal services problem, i.e., that the majority of the population cannot obtain legal services at reasonable cost.”

    Sigh. And sigh again. Once again a commentator lumps all legal services under the one umbrella of “unaffordable”. The statement that “the majority of the population cannot obtain legal services at reasonable cost” is patently false, highly misleading and very dangerous to the public interest. The truth is that the vast majority in fact do obtain most of their legal service needs at very affordable costs. These needs include wills, powers of attorney, notarizations, commissionings, sale conveyances, purchase conveyances, incorporations, amicable marriage contracts, the ILA for them, amicable (i.e., non-litigious) separation agreements, the ILA for them, etc. All of these services are readily available for prices that, so ferocious is the competition, give the lawyers who deliver those services a chance at retiring at 75 with a finite, unindexed retirement egg.

    Take conveyancing fees. They are less than a fridge, less than the moving van company, less than hiring someone to re-paint the living room, a lot less than the mortgage broker’s fee, a lot less than the HST on the realtor’s commission, a puny fraction of the actual commission, a lot less than the land transfer tax, and so on. Consider the near total uselessness of title insurance (it survives by keeping the banks happy who in turn force the buyer to buy title insurance all to the great, great, great detriment of the weeny home buyers who are paying for it and to the benefit of the title insurers who return negligible amounts to the payers). Compared to the title insurance premiums, the legal fees are a bargain because at least the lawyer is actually doing something useful and beneficial while the title insurance premium provides coverage not much above the level of a scam (read up on that industry’s abysmal record of burying gaps in coverage in the turgid fine print and equally abysmal record of not paying claims that are more than a few hundred dollars worth of tax arrears). Sometimes they cover the lender for things they will not cover the purchaser for, depriving the purchaser of leverage because he can no longer say to a big bully developer, “I can’t close because my lender won’t fund”. Instead, the big lender scratches the back of the big developer by funding. Thus, the lender does not care because it is covered, even though the damnable title insurer won’t provide the buyer with the same coverage. The playing field is artificially skewed. Where is the government intervention on this?

    And the fees for wills, powers of attorney, notarizations, and incorporations are even less, or even a lot less, than conveyancing fees.

    Do you know what areas of law are front and centre to be sacrificed to the nonlawyer, anti-competitive profit seekers who are hoping against hope that the legal profession will be so stupid as to sell the profession to them? The affordable areas of course. The vultures would then do away with the thousands and thousands of lawyer competitors who offer those services by undercutting them to death, after which, having reduced the competition to a handful of like-minded giants, they would soak the public forever. I am no Chicken Little. This is exactly what has happened elsewhere. Anyone who wants that to happen here is, well, you fill in the adjectives, but do not use complimentary ones (other than ‘sincere but misguided’).

    Ken, it is critical to identify the areas of legal services that are unaffordable and to stop lumping all the services together. You know what those unaffordable areas are, so please make it clear in your comments. Of course, the unaffordable areas are (1) most litigation – civil, family and criminal – and, (2) services offered by large firms. But let us not worry about big firms for the moment. The clients who use them are, for the most part, wealthy corporations and their senior executives and large shareholders. Clients like that do not have an A2J problem. If they want to spend and overspend, that is their decision. It is just too bad that so much of that spending is tax subsidized.

    If we truly want to help the bulk of the legal services buying public, then we have to do something about the $40,000 average cost of taking a file to trial, and stop wasting time worrying about a $75 power of attorney delivered by a highly competent professional who still has to pay half of the $75 out in modest overhead.

    You make a very good point about alternative legal services being a reduction in the quality of those services. This is not to denigrate those who would provide those alternative services because some of those alternatives may be very good. But, overall, the alternative service providers as a whole will not be as skilled, etc. as the legal profession as a whole. Still, they might often provide a service that is adequate for the job, if all the client needs is ‘adequate’ (and that is all many clients will need). Still, would it not usually be better if the client could get an affordable lawyer to do the work? That is the lacuna you are decrying, and you are right to decry it.

    Here is the nub. The only way to bring down the high cost of litigation is to reduce the time spent on it. Hugely increasing the number of litigation lawyers is not the answer. In fact, it exacerbates the problem. Implementing such things as e-filing merely nibbles at the fringes of the problem. The main solution is to engineer a system that forces the parties and their lawyers to focus on the file in a time-constrained way by eliminating procedural steps and scheduling early appearances before disgruntled judges. “What? You haven’t settled this yet? The issues are not that difficult. Now go work it out or I’ll hammer you with costs.” This happens already, but usually only after the third year. It should happen after the third month (except for truly complex cases, which most cases aren’t).

    Amending the expert witness environment would also help. Instead of hiring dueling experts at great cost, there could be a large pool of government-vetted independent experts who could even be randomly assigned to the parties, or who might not know who their client was, but whose duties would be to prepare completely disinterested reports and opinions. Get rid of medical experts who are in the pay of the insurance companies. Get rid of the experts who are in the pay of the injured plaintiffs. Put both sides in the hands of disinterested experts whose only duty is to the integrity of the opinion (and if they prove incapable of producing integrous, disinterested opinions, they would be dropped from the roster).

    Ken, you say, “Such a declaration by a law society of “alternatives” to affordable legal advice services, is a confession of failure—a confession of an inability to serve its purpose in law, i.e., to regulate the legal profession so as to make legal services adequately available.”

    There is only so much a law society can do. By law, it must regulate the delivery of legal services in the public interest, but that is a long way from dictating what those services should cost. For non-litigation, non-big firm services, the market of well over ten thousand lawyers (as opposed to a market featuring a handful of corporate, nonlawyer behemoths) ensures that the costs are affordable. As I have said, let us not worry about the clients who access big firms for now. That leaves litigation again. Ontario’s litigation market features another ten thousand competitors. So why is litigation so expensive despite the intense competition from so many other litigation lawyers? Because each and every one of those lawyers is trapped in a system that deliberately chews up time and throws numerous hurdles in the way of getting before a trial judge in a time-efficient way. It is the system, not the lawyers, not the law society, that is mostly to blame.

    (Note that some (maybe many) lawyers are to blame. They are the ones who, typically, do not have enough clients putting pressure on them to deal with the client’s own file in a timely way, and who therefore, consciously or unconsciously, find themselves content with dragging out the files (i.e., spending more time on the files where time = money earned) all with the gracious help of the system. Note that this is going to worsen as the number of lawyers per capita continues to skyrocket.

    The blame for too many lawyers each trying to make a living off a shrinking number of clients per lawyer rests with the universities with law schools (bloating up in size and failing virtually no one for the last nearly 20 years) and the government which blithely accepts this awful waste of scarce education resources, and which turns a blind eye to the horrendous social costs of it all).

    Ken, you say, “Such alternative legal services mean a shifting of decision-making from judicial to administrative services. Judicial decision-making provides five advantages not adequately provided by administrative agencies: (1) a clear and exact burden of proof; (2) an opportunity to rigorously test the evidence for accuracy, integrity, and persuasiveness; (3) a thorough debate as to the correct interpretation and application of the law for the issues and evidence involved; (4) a decision by a truly impartial and competent adjudicator; and, (5) the right to a jury trial, in situations allowed by law. When an “administrative” approach replaces a judicial approach to decision-making, the counterparts to the first four are much compromised by the limitations, weaknesses, conventions, biases, and institutional cultures of the administrative agency.”

    That is very insightful.

    I also agree with you that the law societies are not providing the leadership necessary to deal with the real problem. In Ontario, the law society has wasted over two years on ABS and has done practically nothing about the real problem. It has not set up a committee truly dedicated to making recommendations to ameliorate the real problem – the ruinous time and cost of litigation. Perhaps there is a fear that the barristers would suffer too much if the real problem were dealt with. I do not see it that way. Given the vast numbers of self-represented litigants and the countless others who do not even try to access justice, I believe that if the cost of handling litigation files were cut in half, there would be a doubling of the number of clients banging down the doors of litigation lawyers. If I am off on the math, then the government and the law schools could do the responsible thing in the public interest and rationalize the number of graduates.

    You say, “To the contrary, the independence of the legal profession from government intervention is essential not only to the independence of the judiciary, but also to respect for the judiciary.” You are absolutely right.

    You say, “But current law society performance invites government intervention, and makes public respect for the justice system more difficult to maintain”. Not quite. Yes, the law societies could do more such as setting up properly mandated committees. But the government, frankly, does not need to wait. They could populate a task force with public minded people (how about you?) who have thought long and hard about all this and mandate them to come up with recommendations. Furthermore, even if the law societies came up with excellent recommendations (and easily could), it would still take government action to implement the most effective of them.

    The worst things that could happen would be (1) to further erode, increasingly over time, the respect for the profession by selling the independence of the profession to profit seekers, (2) erode, increasingly over time, the respect for the judiciary given they would come out of a disrespected profession that had lost its independence, and (3) government take-over of the regulation of (which necessarily means having undue influence over) the profession (the profession that is the most critical in keeping the government honest).

    Other than my decrying the failure of the law society and benchers to set up a properly mandated committee to deal with the real problem (on which I agree with you), you are too harsh on the benchers. Contrary to outsider belief, we are highly cognisant of our public interest duty. Because nothing is perfect, we sometimes have a couple of benchers who do not understand that, but they have no influence in Convocation. Again, there is only so much the benchers can do. And we do in fact have an excellent ‘civil service’ but again, there is only so much they can do. Given their talents and energies, they would be invaluable resources if we did set up a properly mandated committee.

    As for the lay benchers, they speak very well for the public interest, not just in Convocation, but in the corridors and locker rooms (well, I cannot speak for the ladies’ locker room; I have only been in it twice, for innocent reasons both times, I hasten, accurately, to add). Even if the lay benchers never said a word, their very presence, their very gravitas, would remind everyone, lest they forget, of the overriding importance of the public interest. There are two issues (I won’t say problems) where the lay benchers are concerned. The first is that they are appointed by the government. All that means is simply that the law society has no say in who is appointed. The second is that the government, for some reason, prefers appointing people who are well-connected and well off (imagine if the government were appointing all the regulators). If it were up to me, I would appoint more lay benchers from sectors of society who are under- or not represented in Convocation, and fewer from the 1%, splendid though they are.

    Next, it is inaccurate to say that there has been no innovation to move from the present “handcraftsman’s” method of delivering legal services. First, the differences in how we practice now compared to even 15 years ago is staggering. We are not opposed to innovation. We are opposed to innovation that would worsen the situation and to arguments that apply to the delivery and sale of widgets. Law is not a commodity and the people, including some self-serving lawyers, who say so either do not know what they are talking about or are working some angle in their own self-interest by trying to take advantage of the lack of knowledge of those who wrongly think law is a commodity.

    Next, it is wrong to say that lawyers have not been pressured the way doctors have been. We are under relentless pressure from clients to deliver more for less. We are happy to do so up to the point where you would be doing a poor or even bad job and opening yourself up to being sued later by that same client who thinks you can do perfect work on a complicated matter for an income below movie usher.

    I am not sure what you mean by innovations adopted by doctors. If you mean using new technology, lawyers adopt every piece of usefully innovative technology that comes along. It is in our self-interest to do so and that ends up helping the clients. If you mean using computerized data bases, it seems to me that the doctors are just catching up to lawyers. If you mean being dictated to by bean-counters at Queen’s Park – the type who send orthopedic surgeons home once their hit their monthly target of operations, forcing dear Mrs. McGilliguddy to wait another month for her new hip (or my daredevil skiing daughter 18 months for her hip surgery), then let that kind of innovation never hit the legal profession.

    I have long maintained that, if the government ever became responsible for the incomes of all lawyers and paralegals the way they nationalized all doctors and nurses, they would, within five years, shut half the law schools, cut enrollment in the others, and ration the delivery of legal services to the pips. You want a will prepared by a government owned and paid for lawyer – the only type of lawyer you would be legally allowed to see? Sit here. We will get to you in five hours (at which time you will (a) probably catch the flu from someone else waiting, and (b) get a lousy will from a harried, distracted lawyer who would see you as an intrusion into her day rather than as the life-blood of her private practice). (Note that the doctors, once you actually get to them, are better at this but that is because the stakes – your health – are higher. On the other hand, have you noticed that the doctor is relaxed and at your service for the first six minutes or so, and after that, they become increasingly anxious to wrap it up? That is because they have to finish with you within the government dictated, graph friendly, time allotment and move on to the next patient who gets the same time allowance regardless of the medical complaint or mental state. Even the best doctors are dictated to from afar in this way and fall victim to the get-the-patient-in-and-out-in-12 minutes syndrome). Further, the medical system is horrendously expensive (fully a quarter of all taxes paid and rising). It is highly unlikely that a government-run legalcare system would be cost-efficient. On the other hand, they could have kept the gas plants to supply us with rhetoric-aid.

    Next, it is unfair to say that the profession’s leadership (you mean the law society) is dedicated to maintaining its popularity with their lawyer-members. Not so. Many members regard the law society with considerable annoyance, believing that the law society should be and fails at being the profession’s lobby group and champion. Other members realize correctly that that is not the law society’s role and can never be its role. It is easy for outsiders to get this wrong, but it is dangerous to do so because the alternative of having the government take over the regulation should be anathema to any right-thinking person. As for accessing outside expertise and information, the law society does it frequently.

    I completely agree with you that the ‘amputation, if not the complete elimination, of law society powers, purpose, and prestige’ would be a ‘brutal revolution’, and one that would please no one other than the explosion of bureaucrats who would take over and others who do not care for democracy or who are cavalier about its advantages.

    Andrew Prior, I completely agree with you that Canada’s single payer medical system does not seem compatible with an independent legal system. And the rest of your comments are also spot on.

    Verna Milner, it is ultimately unhelpful to compare the provision of non-commodity services such as law with commodity services such as parts-delivery. The car part does not have to be negotiated with, it does not change its mind sometimes on a whim, it does not have to be, and is not made to be, flexible to fit into new and rapidly changing circumstances.

    The legal profession actually does have farm teams – small firms. One of the banes of small firms is training a young lawyer for three to five years only to see her leave in response to the ubiquitous ads from larger firms seeking someone with three to five years experience. In the meantime, the small firms are serving millions of clients at affordable rates including, where appropriate, at legal aid rates, including, where justified, pro bono.

    Further, the profession has articling students, paralegals on staff, law clerks and junior lawyers who are assigned work that would not be cost-effective for senior lawyers to do. But at least that work is supervised by the senior lawyer and the junior or staff person can ask for help or advice in a timely way from the senior. Yet another of the many, many problems caused by far too many graduates being irresponsibly spewed out of the law schools is that literally hundreds of them every year cannot find jobs in firms (there is not enough work for the hordes of graduates to justify hiring all them). Desperate and saddled with huge student loans, they hang out their shingles and try to practice with little or no access to a mentor in the next office or down the hall (having ersatz mentors miles away even if accessible by Skype or phone is a very poor substitute for a senior at your elbow).

    You ask, “Why is it that high-end law firms can’t like the automobile industry and retailers develop brands or storefront versions of themselves to cater to mid-income and low-income clients.” First, you again use the unhelpful analogy of commodity services (auto industry and retailers). Second, high-end law firms are high-end precisely because of who they cater to. There is nothing in it for them to cater ‘down’. But that is not the problem. There are thousands of firms who do cater to mid- and low-income clients down to the point where it is no longer cost-effective for either party. And if something is not cost-effective, short of charity or government subsidy, who is going to pay for it?

    Here is something few people realize. Consider a two-storey strip mall with retail stores downstairs and offices upstairs. The rent for the stores is two to three times higher than the rent for the offices. The main reason is that the stores have products that fly off the shelves or out of the kitchens, and the offices are rented to people who sell their time.

    I used to have an office in just such a place. Downstairs were the shops and restaurants. Upstairs were the dentist, the doctor, the engineer, the computer wizard, the lawyer, and, for a time, the dance school. Do you have any idea the elephant pounding noise that 22 eleven-year old would-be ballerinas can make? Chinese water torture is a light kiss on the forehead by comparison.

    Because the time-sellers do not have products that in essence sell themselves, they are limited in what they can charge and make and that, in turn, limits what they can afford to pay in rent. That is why you rarely see law firms (other than, perhaps, contingency based practices such as personal injury) in ground-floor retail space. It is just too expensive, and puts a lot of upward pressure on the fees – precisely what we want to avoid.

    It is also a cost that would be incurred by profit seeking nonlawyer behemoths seeking to market their “brand”, and it would have to be recouped in the fees charged.


  4. Mr. Wright, “Desperate and saddled with huge student loans, they hang out their shingles and try to practice with little or no access to a mentor in the next office or down the hall (having ersatz mentors miles away even if accessible by Skype or phone is a very poor substitute for a senior at your elbow).” Are these individuals practising without having articled and having been called to the bar? How is this possible? Are the firms with which they’ve articled to be held accountable for producing lawyers who aren’t competent? Or, is this taking place after having worked three to five years at smaller firms?

  5. P.S. “The rent for the stores is two to three times higher than the rent for the offices.” And ten times less than the rent or lease for the glass towners in which many law firms enshrine themselves.

  6. Verna,
    The Law Society is trying to cope with an influx, a tsunami, of new graduates being poured at us by law schools, mostly Ontario-based, but also based elsewhere. The LS has set up numerous programs to help – legal education seminars, mentoring networks, early practice reviews – but nothing replaces working at the elbow of a senior lawyer for several years. The trouble is there not enough work to warrant hiring them all, and that is the fault of the schools and the government. You can even get a law degree at, say, U of Leicester in the UK whose entrance “requirements” are a B average and no LSAT. With 38% of undergraduate marks being A’s, U Leicester is taking barely average students with no demonstrated affinity for the type of thinking that is useful in law (which is what the LSAT is supposed to test). You can get a law degree there, if Mom and Dad have the resources to foot the bill, return to Ontario and demand to be called to bar, which will happen because you will not fail the bar exams.

    Yes, you can get called to the bar without having articled. If you cannot get an articling job for the simple reason that there is not enough work to absorb the tsunami, you can now enter the Lawyer Preparation Program at Ryerson in English or Ottawa U in French, spend another four months in class and another four months in a placement that is rarely a law firm (or they would have hired an articling student in the first place). The LPP was set up to let the law schools off the hook for bloating up in size and then virtually never failing anyone (lest grant and tuition money go a-glimmering) and the government off the hook for its negligent misallocation of scarce education resources and the Law Society off the hook from having to be the bad guy and flunk people at the bar exam stage and off the hook for having made a very bad decision to reduce articling from 12 months to 10.

    As for the glass towers, only a tiny fraction of all the law firms practice in such settings. The vast, vast majority of law firms are in much more modest space scattering all over the place, in far, far more locations than the giant retailers. In my community, we have one Canadian Tire and one Walmart, but we have ten law firms ranging in size from one to six lawyers. I would not worry too much about the law firms in the glass towers; they are not catering to you or me, and the people and corporations they are catering to can take care of themselves.

  7. I would just add a comment in support of one of a point raised by Mr. Wright.

    “Legal services” are not overpriced. It is essential we break down legal services into the various areas of law and analyze them separately. The vast majority of legal services are well within the reach of those that need them. I think a very strong argument can be made that some, especially conveyances and wills/estates, are grossly underpriced likely to the detriment of the consumer and certainly to the detriment of the profession. When we talk about A2J we are largely talking about litigation and even then, personal injury litigation with contingencies are in the reach of all consumers. So we are really talking about civil, criminal and family. I would also suggest that each of those need to be talked about separately in order to talk about solutions because there are a variety of factors that don’t always exist across the board.

    Flowing from that, more needs to be done by the Law Societies to emphasize and advertise the need for proactive use of legal counsel in order to save costs and reduce both the need for litigation and the complexity of litigation. As a civil and commercial litigator, I cannot begin to count the number of times a shareholder dispute or a land co-owner dispute has come to me where there was no written agreement – because the parties wanted to “save” $2,500 – $4,000 when they started up their business or bought real estate together. Even though that amount was probably going to be one of the, if not the, smallest costs that would be incurred initially. Small expenditures on solicitors are like a flu shot to keep the nasty commercial litigator bug away. We need to do more as a profession to emphasize our role as advisor but that said I don’t see the need to wring my hands over A2J for a small business owner who went cheap on start up costs and now wants to push their business partner out of the business.

    If you can’t afford the relatively small cost of a shareholder’s agreement – you can’t afford to go into business with the other person.

  8. Mr. Wright, surely the LPP graduates couldn’t be the ones to whom you were referring when you wrote: “Desperate and saddled with huge student loans, they hang out their shingles and try to practice with little or no access to a mentor in the next office or down the hall (having ersatz mentors miles away even if accessible by Skype or phone is a very poor substitute for a senior at your elbow).” The LPP graduates are a recent phenomenon are they not?

    If the October 27, 2015 reports with headlines such as the one at the WSJ blog state “New York Bar Exam Pass Rate Hits Historic Low” then New York unlike Ontario’s Law Society doesn’t mind being the bad guy. If there is no failure at the bar exam is it then just a money grab? The law society should take care that the public especially those without the affinity of thinking like a lawyer may find this all very shady indeed.

  9. A2J: if there were only 100 law firms in Canada, they would still be short of clients. Bradley, the argument that the unaffordable legal services problem is caused by “too many lawyers chasing too few clients,” doesn’t fit the facts. Because of the volume and complexity of laws and the great volumes of relevant electronic records, people cannot deal with their legal problems by themselves. Nor can they be adequately dealt with by way of alternative legal services that don’t provide lawyers to do all of the legal work that clients need. The “cutting costs by cutting competence” strategy underlying the alternative legal services advocated by law societies does not perform their duty to make legal services adequately available.
    People have never needed lawyers more. If legal services were affordable, lawyers would be overwhelmed with work. They would be begging the law schools to expand their enrollments. The profession would be expanding instead of contracting. Read the analysis provided by the surveys conducted by the National Self-Represented Litigants Project as to the population’s need for legal services.
    One of the major points of my article (Slaw post, Nov. 26/15) is that the method of producing legal services is obsolete. It cannot be made sufficiently cost-efficient to make legal services affordable. That is why all forms of the production of goods and services, where there has been sufficient pressure to make it happen, have moved from a handcraftsman’s “cottage industry” method of production, to a support services method. The legal profession has not.
    All that has been written, and all of the A2J committees formed, strive to make the existing method produce affordable legal services. It cannot be done. A bicycle cannot be made to have the speed, capacity, and cost-efficiency or a motor vehicle.
    The fault is not that of the law schools’ flooding the market with too many candidates to be lawyers, but rather by law societies failing to try to solve the problem. It is their duty in law to make legal services adequately available. For many years they have failed to do that. That is because law society management structure is obsolete. Change it, or replace law societies with an administration that is adequately accountable to the democratic process, and sufficiently responsive to public need for legal services. The profession itself is a major victim of this law society intentional failure.
    Note however, that the problem is caused by legal advice services, and not by routine legal services that are mostly routine paper-work, such as simple house sales, wills, incorporating small companies, and such. That kind of legal work can be largely automated. But legal advice cannot.
    However, automation will progress such that present forms of legal advice will be largely automated. But technology-based legal services will be a moving continuum. There will always be new forms of technology and new methods of applying existing technology, that cannot yet be automated and therefore their accompanying legal infrastructure will require legal advice services. So lawyers will never be automated out of existence.
    However, if the present method of doing the work to produce legal services doesn’t change to a support services method, for that majority of the population that is not rich, lawyers will price themselves out of existence. But that change in the production methods of the legal profession, requires strong law society leadership. It doesn’t exist. Law society history well proves that, that is the great weakness in my argument that law societies can solve the problem if they try.

  10. John M. Hogg, Q.C.

    “Let Them Eat Cake” is a well written and provocative article for certain. The key point is “alternative services” does not work. I agree it is a poorly applied bandage. But people grasp at these things and “unbundling” of services as half measures and yes…bandages, when the real thing is not on the menu. Second the comparison to medical services does not work for me. Our medical system is broken even though a huge % of Gov’t funding is dedicated to it. Canada, or the Canada I live with in B.C., runs on a 2-tier system of medicine where if you have money you get the service. Yet Drs. enjoy access to operating rooms in publicly funded h0spitals, while simultaneously making MSP patients wait for unreasonably long periods. So I reject any theory that says our medical system is something to follow. But I guarantee you some of their funding would help Legal Aid.
    The problem is Gov’t…all Governments have not addressed the “access” problem and more specifically they have not tried to properly fund Legal Aid. They duck it; they ignore it with stock lines like “Treasury has no money for Legal Aid” or “it is tough to have the public fund long biker trials”. Stock lines that do not, would not, hold up with proper debate. What does Treasury have funding for? Where are their and societies priorities? In the rule of law? Many politicians do not know what that means as they have not had it explained to them. They do not relate it to their own families. They need told – educated. Lawyers and lawyers as politicians could do this. Should do this. They have not. And so we flounder and put up with half-measures like “unbundling” and other terms on this list.
    A focused, informed group of people of 3 to 6 AND any one leader in the Gov’t of any Prov. or Canada could fix this in a week-end think tank session. There is no will. That meeting has not happened. CBAs keep repeating studies or inquiries and starting the ball rolling but it stops at the publishing of the findings(consider for instance the Doust report which was the last shot at this by CBA in B.C.).
    Access to justice means providing cheaper or affordable legal services. If anyone has any doubt just jump in and try some “unbundling” and you’ll soon find out. Any lawyer who keeps track of the time, effort and money that goes in and is “gone”/lost when you unbundle, immediately brings home the high cost of legal services and unbundling.
    What is needed is the will to fix or address access to justice. What is needed is effort and yes…some money. We are not there yet.

  11. Andrew, all your points are excellent.

    Verna, you are right that the LPP is a relatively recent phenomenon. But it means even more new calls opening up practices with far less mentoring that new lawyers in previous generations. Indeed, the LPP grads are even less likely to latch on to a firm because they did not even article at one. When law firms expand, it is often by hiring back impressive articling students, but first you have to article in a firm in order to impress the hirers.

    Verna, several American states do have a high bar exam failure rate, but many of those who initially fail ultimately pass because you can write the exams several times. Popular jurisdictions like New York and California do make it more difficult to get called there, but not all 50 states make it so hard. Further, the Americans have not had bar admission courses analogous to our former six-month bar exam courses.

    In Ontario and I suspect in Canada generally, the law schools make no bones about not being very interested in training lawyers for private practice. They say, with some justification, that their mandate is much broader than that. Thus, they punt the ball of practical instruction downstream to the law societies. The LS used to use the six-month program to instill in the students the practical knowledge, and mountains of useful practical precedents, they did not get at law school. The bar ad courses featured lectures in the morning and informal seminars in the afternoon all taught by local practising lawyers, not academics (the students already had had three years of being taught mostly by academics – valuable but incomplete).

    Ontario was regarded as having the best legal training program in the common law world and a very major part of that was the practical training during the bar ad courses. Naturally, we got rid of the bar ad program.

    In any event, I tend to agree that it is inhumane to cut the students off at the knees at the last possible moment – the bar exams. The weeding out should be done in first year law school so that those who are not, as reasonably as can be determined in an imperfect world, suited to law practice, so that they do not go on to incur mountains of debt only to be told at the last moment that they will not be called. The fact that the law schools have abdicated their responsibility to cull in first year is probably the single greatest cause of the woes that are befalling hundreds of the students each year, the legal profession in general and, most important of all, the public.

    Ken, I don’t know where to start, but I’ll try.

    First, you are misperceiving the situation. Most legal services are, as is easily demonstrated, very affordable to almost all people. I, and many others, have proven this point over and over again ad nauseam. The evidence is all around you. You say, “for that majority of the population that is not rich, lawyers will price themselves out of existence.” For the large majority of needed legal services, we have not priced ourselves out of reach of almost all of the population. Quite the contrary. It may comfort you to think otherwise, but you are wrong.

    The services that are not affordable are overwhelmingly on the litigation side (leaving aside big firm law). This is dead obvious and it is nonsense to try to claim that the cost of a will is the A2J problem while remaining silent on the cost of litigation. For the umpteenth time, the public is not truly bothered by a $200 will. What they are hugely bothered by is the tens of thousands of dollars it costs to deal with so much of the litigation services.

    You dismiss the notion that too many lawyers is a problem for the public. Many people say that hugely increasing the number of lawyers per capita will bring down the cost of legal services. If that were true, the Americans would have the lowest cost legal services in history; instead, they have the highest cost legal services in history. Why is that? Because there are not enough clients per lawyer. The ratio down there is about one lawyer for every 289 people. You cannot make a decent living on 289 people, most of whom do not need you. For the ones that do need you, you have to charge high amounts. In the US, this usually means very high contingency fees the costs of which are passed on to the public in the form of higher insurance premiums.

    If you double the number of lawyers per capita, then each lawyer has to make his living on half the number of clients. That means he has to extract from the hide of each client twice as much money as before. Very regrettably, the system, with all its stages and inefficiencies, aids and abets that.

    Each file is a lengthy procedural nightmare of stages, paper, computers, posturing and so on. When you put yourself on the record, you are responsible to the client to ferry them all the way through the system – a ferrying that takes inordinate amounts of time (i.e., money). You cannot just take on twice as many clients and charge them half because there are not enough clients by definition to go around, and there are not enough hours in the day given how time consuming each file is. (Again, the best solution is to reduce significantly the amount of time it takes to resolve litigation disputes. Nothing else will have much impact.)

    Then you could say What about all those self-represented litigants (SRLs)? The number of SRLs has risen in lock-step with the rise in the number of lawyers per capita. They are inter-related phenomena. The SRLs cannot afford a lawyer because the cost of dealing with any file is too high. The reason it is too high is the systemically induced length of time you are forced to devote to each file. Fix that flaw in the system and you largely fix the SRL problem. Part of the solution to the systemic problems is fixing the litigation gauntlet set up by the government in a short-sighted attempt to grind people down before they reach a judge. Another part of the solution is to do sensible actuarial studies to determine an optimum number of lawyers per capita – neither too few (China) nor too many (the US and now Canada thanks to the frenzy of graduations in the last 18 years).

    I read somewhere that law students are being graduated at a rate five times greater than population growth. Keep that up and someday every citizen will have his own lawyer to feed and water. You, Ken, will have your own private lawyer and be responsible for his entire lifetime’s worth of earnings. Your wife will have her own, and each of your children will have his or her own.

    You should understand that lawyers are already saddled with work, but too much of it is, looked at from 35,000 feet up, useless work, necessitated by the system, not by any rational timeframe and framework of dispute resolution.

    You also say, “Note however, that the problem is caused by legal advice services, and not by routine legal services that are mostly routine paper-work, such as simple house sales, wills, incorporating small companies, and such. That kind of legal work can be largely automated. But legal advice cannot.”

    In saying that you expose yourself as a person who has never done that kind of work, and, with great respect, does not know what he is talking about. I say with great respect because I greatly respect the time you are devoting to trying to ameliorate a most difficult problem in the public interest. I urge you to keep trying.

    But please, please understand that these services are not commodities, and in jurisdictions which have foolishly tried to turn them into commodities, the results have been disastrous – skyrocketing costs and precipitously sliding services and quality. Go on the Information tab of my website and check out the incomplete list of real estate file types and problems. I have had many people say that buying a new condo from a big developer must be simple. Actually, they can be among the most complex real estate files that come along, fraught with negligence traps, traps that the title insurers exempt from their coverages. Some developers are always up to new tricks and finding the adverse consequences to the buyer is not easy.

    Not to knock you, but saying that the work of small-firm solicitors is a commodity that can be automated to the net benefit of the public is simply wrong and demonstrably antithetical to the public interest. As I keep saying to people who think like that, come and work for me for one month and you will never think that again.

    One of the silliest things people say is that somehow “simple” wills should be taken away from lawyers or opened up to all manner of nonlawyers. Yes, there are some wills that, in the end, turn out to be relatively less complex, but very often you do not know that until near the end. Countless clients call and say that they have a simple situation and just need a simple will. Within three questions it is apparent that there are complexities that were not aware of. Trouble is that, often enough, and despite the detailed information forms that we give our clients to fill out (to lower their costs) and despite the questions over the phone, the complexities do not come to light until they are in your office sitting across from you.

    There are law firms who brag that they will only do so-called simple wills and will refer out other kinds of wills. Balderdash. If the will file turns out to be beyond them in reality, they will likely not recognize it or, even if they do, will convince themselves that they can handle it rather than forego the revenue (lawyers in such factory firms almost certainly have billing targets to hit).

    The most lucrative estates files we ever open are the ones featuring wills that were prepared without lawyers (or drafted by lawyers who were dabbling in wills or who swallowed the canard that wills are simple). It is dead easy to screw up a will. You can do with bad syntax, bad grammar, bad punctuation, bad gathering of instructions, miscommunications, and on and on.

    The defective will files are even more lucrative than the files featuring no will at all. If there is no will, the Succession Law Reform Act will apply, whether the family likes it or not, but at least we know what we are dealing with. If there is a will, no matter how defective, the SLRA is ousted and we have to deal with the defective will. That takes a lot of time and time is, what is it again? Money.

    Ken, please keep fighting for improvements to the system, but please do not make the mistake of believing that all legal services are unaffordable when that is simply not the case, or the mistake of thinking that small firm solicitor work is a commodity that can be dumped in the lap of some corporate behemoth, or the mistake of thinking that the Law Society has all the powers necessary to magically fix everything. There is a lot that the LS can do, and should be doing, but the real solutions are to be found in the government’s willingness to make truly effective changes to the time it takes to conclude a litigation file, and willingness to rationalize the number of law school graduates.


  12. “But it means even more new calls opening up practices with far less mentoring that new lawyers in previous generations.” Time will tell. The result may be that some of these LPP graduates may not have been well versed in an academic setting but may very well excel at the practical end of things.

  13. Verna, there is no doubt that some, maybe many, of the LPP grads will turn out to be good lawyers. Some of the best lawyers in Ontario brag about how bad their law school marks were and how they barely scraped through. But they were not as bad as they think because they faced greater competition to get into law school in the first place (there were fewer spaces per capita back then) and then they had to finish in the top two-thirds of the first year Christmas exam writers. Far from being poor students, today they would rank, in today’s bloated class sizes featuring virtually no failures, slightly above the mid-point.

    Ken, I referred to people completing will information forms (paper) and returning them to us. That is just my default way of talking (being from an older generation). The reality is that we often send the information to the client electronically and many them send the information back to me electronically. I tried to come up with a form that would do all my work for me, but it was too cumbersome. There were too many ‘if this, then that’. I compromised on the form. It balances the amount of information I need to get started, and I obtain the rest of the information usually in a phone interview. Then, at the signing appointment, further tweakings often occur (sometime wholesale changes – human beings can be unpredictable or even capricious). My personal involvement in assessing the client helps forestall or resolve potential future accusations of lack of capacity or undue influence. Wills done well by a lawyer are a great service to the public, saving the clients and the system incalculable costs and delays. The cost of wills is the best legal bargain, in terms of value for money, the public can get from the legal profession. Second are the fees for handling conveyances. What is absolutely no bargain at all is having to go to court.

    Solicitors practice prevention law, as Andrew Prior was alluding to, at low cost to the tremendous benefit of the public and the system. Thank goodness they are there. Barristers practice cure law at high costs, but thank goodness they are there too. Without them, the cost of the cures would be even higher. The nub of the A2J problem is that, despite the vast majority of barristers being highly ethical people, the system militates against early and cost-effective dispute resolutions. That is what needs fixing. All else is just so much hoo-haw ’round the edges.

    And none of that has much to do with bicycles and cars.

  14. A great discussion here. But you cannot argue with the fact that lawyers, as a self-regulated industry , have failed to meet our mandate of public service if we cannot offer legal advice in an affordable way. And there appears to be little incentive for us to change short of threatening to eliminate our monopoly with ABS.
    Maybe it’s the wake up call we needed.

  15. Andrea, Lawyers do offer most legal services in a most affordable way. The small firm solicitors of Ontario, but not only small firm solicitors, have and do meet our public service mandate of high quality and low cost thousands of times every day.

    We need to concentrate our amelioration efforts on those relatively few, though extremely important, areas of the law (civil, family and criminal litigation), that have been made too often unaffordable, mostly by a poorly designed system – a system designed, short-sightedly, by the government to suits its desires, not the desires of the litigating public.

    We also have to be exceedingly careful not to harm the true public interest by attacking the many areas of legal advice and services that are affordable by thoughtlessly sacrificing them to profit-seeking, anti-competitive nonlawyer investors on a trumped up altar of access to justice simply to avoid dealing with the real A2J problem.

    If the threat of ABS is the catalyst to spark the profession, through the Law Society, to make serious recommendations to the government on ameliorating the ruinous time and cost of litigation, then so be it. But ABS must never be anything more than that. It must never be adopted, not even as a thin wedge because the battering ram of big money will drive that wedge so wide that we will be certain to go down in history as guilty of bringing about the worst change to the public’s interest in legal services in history.

    We should not need the threat of ABS to spark the amelioration. Convocation should take up this mantle as part of its public interest mandate, and the Treasurer should lead the way.

  16. Bradley, you’re producing here in this thread alone the equivalent of a Slaw column a day, so I hesitate to ask you to keep at it. I recognize you have a practice to run.

    But (you knew there would be a but…) I have a comment and a question.

    Comment: It is far more competitive to get into law school today than it was 30 or 40 years ago. in the 60s, almost anyone who asked could get in. I was in law school in the early 70s, and a few people failed, but nothing like a third – maybe 10 people out of 150. That old ‘look at the person on either side of you’ meme never described reality in my time, and I doubt it ever applied in law in Canada. If it did, it was with the lower standards of admission pre-1970.

    So in my view, the people you describe as good lawyers who claim to have been poor students are probably accurate in their self-description – but success in law school has never been one-to-one with success in practice. Sometimes street smarts or emotional intelligence or congenial specialization has allowed for much better results than the exam-based book-learning that was traditional in the law schools. Sometimes …

    Further, class sizes have not increased all that dramatically since the 70s, with the notable and recent exception of U of Ottawa.

    The real scandal in law schools these days – or maybe it’s in the Law Societies – is the ready admission to the bar admission course of graduates from foreign law schools with no proven standards. Offering ‘Canadian’ law is obviously lucrative for UK and Aussie schools, which advertise a lot here – but why do we admit them so readily? It used to be they needed two years of Canadian law school on top. Have the efforts to accommodate actual foreign-trained professionals had the side effect of creating a loophole to educational standards for Canadians? It would appear so.

    Question: You say that the problem with the costs of litigation are caused “mostly by a poorly designed system – a system designed, short-sightedly, by the government to suits its desires, not the desires of the litigating public.”

    What government designs do you have in mind that were inspired by government’s own “desires”, as distinct from what the legal profession has wanted or what was in direct line of descent from traditional methods of doing things?

    Government has tried to promote alternative dispute resolution – consider the mandatory mediation program in Toronto – that have sometimes been undermined by the litigation bar, and some judges (while others tried to promote it). Other initiatives – consider the family law information sessions – have found good support with the Bar. I don’t see government resistance to a profession keen on A2J as the barrier. if it is, maybe that’s a different thread from the present.

  17. My last comment in what has been an interesting discussion – and one where I might otherwise diverge a bit from Mr. Wright (albeit from the bias of being a litigator I confess).

    Mr. Wright states with respect to the civil/family/criminal affordability problem that this is one caused “mostly” by a poorly designed system. I think that risks simplifying matters. I believe that there are a great many number of issues that contribute to the affordability of litigation. Furthermore, when we talk about the “system” I feel like we talk too much about the specific Rules of Court as if there were amendments thereto that could substantially help with affordability. The entire system – and not just the rules of court – should come under scrutiny.

    I actually think the Rules of Court are minor drivers of costs compared to the increasing complexity of law/equity compared to 60 years ago and our treasured beliefs in certain principles that don’t necessarily have rigorous research supporting them (cross-examination is the best way to truth; an independent bench means it is perfectly acceptable to have someone who practiced family law their entire career sit on a 6 week construction case). Should someone be able to quote a decision from England on a case worth $100,000? Should we allow that type of research if it manifestly increases research time and legal unpredictability? Should we do more to codify our case law and legal developments to provide a more readily understandable and predictable system? Should the common law be modified – at least for smaller matters? Has the move away from “trial by ambush” to substantial pre-trial discovery actually been beneficial? Can we balance being “right” more often because of better pre-trial discovery against the costs (and barriers to access) that have come with those steps?

    You may disagree on some of these – but we at least need to talk about all of them if the consensus is we face a crisis of A2J.

    But in any event, my main last point was to also draw attention to a need to discuss unintended consequences when making the system more accessible. As an example:

    Some self-represented litigants are self-rep because lawyers rightly rejected their claims.

    Some self-represented litigants are self-rep because although the base claim was viable, the approach/strategy/position of the litigant was ultimately unreasonable and not worth the lawyers time. This type of litigant rejects the type of cost-effective and timely advice a litigator can offer – then can’t find a lawyer to represent them.

    Some represented litigants take borderline unreasonable approaches/strategies/positions – yet at the end then complain about costs. They reject the type of cost-effective and timely advice a litigator has given them – and although represented are often pointed to as examples of people ill-served by the “system” even though none of the studies (that at least I have seen) have allowed us to distinguish whether they got good advice relative to the nature and amount of the claim at a time that could have allowed for a successful settlement discussion.

    I would suggest all three categories of system-participants above would complain bitterly about the accessibility of our system. Yet I find it difficult to feel much need to adapt the system to meet their needs.

    Moreover – from the unintended consequence standpoint – isn’t a more affordable and more accessible system going to make it easier for unreasonable people to access the system?

    I think it will be poor comfort to the reasonable litigant on the other side to know there is more A2J if they are paying legal bills (albeit smaller legal bills – maybe) to fight an unreasonable party who has more access to the system.

    Put another way – is it every person deserves their day in court? Or every reasonable person? Can the system differentiate between the two enough to actually make the system BOTH more accessible and yet still generally acknowledged as just.

    It is access to justice – not access to courts. And a lot of litigants do get “just” advice – before riding off to tilt at windmills.

  18. Hi John,
    I disagree that it is harder to get into law school now. There are more places available per capita now, and undergrad marks featuring 38% A’s are a joke. The rates of people starting first year and finishing third year are higher now. Virtually no one fails today whereas in the past many law school students did.

    I agree that marks are not an infallible indicator of post-call success, but some sort of academic standards seem to be valuable (all the big firms seem to swear by them). Insofar as maintaining standards is concerned, I also agree with you that, in essence, one should be very leery of, for example, U of Leicester’s willingness to accept (and then assuredly graduate) students with barely average and even below average undergrad marks and no demonstrated affinity for the type of thinking useful to lawyers (which the LSAT is designed, imperfectly I grant you (but nothing is perfect), to illuminate).

    As for the litigation system, it seems to me that the government rations judges for the same reason they ration doctors and legal aid. It has to pay for all that. One way to get away with far too few doctors is to make it a headache (!) to access one other than during emergencies. Whenever I hear a politician promise to reduce wait times, I snort. They are either lying outright or they do not know they are lying. Very long waits in emergency serves as a bottleneck to discourage people from even going and accessing our incredibly expensive health care system. There is no way, under our government controlled system, that wait times will shorten. The bean counters will see to it especially as their jobs depend on it. That medical ailments that could have been nipped in the bud by early treatment grow into requiring far more expensive treatments seems to be a cost they are willing to accept, but that is, to me short-sighted of them.

    The many stages in the litigation system are a similar attempt to reduce the number of people who actually get before a government salaried judge. The stages add enormously to the cost of litigation, dragging something out to three years that could have been resolved in 90 days. In particular, the mediation and pre-trial stages are set up and sold as opportunities to settle without the expense of a trial, and sometimes they actually work that way. But I maintain that our litigation bar is so good that the lawyers can accurately work out what an informed and competent judge would quite early in the process. Having done so, why should the system invite one party or the other to drag it out? Exchange pleadings, have short discoveries, exchange meaningful offers to settle and, if the lawyers cannot put in place within a reasonable time what they know, to a high degree of predictability, an informed and competent judge would do, then there should be a relatively early appearance before, I hope, a disgruntled judge to explain why they were not able to do their jobs. Was it a client’s intransigence? If so, clobber the client with costs. Was it a lawyer’s own unreasonableness? If so, lambaste the lawyer.

    I realize that the problem is more complex than I am letting on with these comments. To flesh it all out, and to include safety valves for truly complex or novel matters, would take a thread long enough to encircle the globe. But it is great to see that so many people are becoming engaged in the exercise.

    The mandatory mediation stage was put in place by the government with good intentions, but I think at the end of the day it just exacerbates the problem of affordability. Reduce the time frame of typical litigation from three years to, say, six months. Place the sword of Damocles over the necks of the lawyers and their clients to deal with most of the disputes in a time-truncated way. Have available and enforce very hefty penalties for such skullduggery as hiding documents or generally pulling fast ones. Done right, such a system would not reduce the fairness of outcomes and may even enhance it by make it harder for deep-pocketed litigants to grind down shallow-pocketed litigants.

    The two main features of any dispute resolution system are (1) an ability to resolve disputes regardless of the outcome, and (2) the ability to produce as many outcomes as possible that are seen as fair and just. The former is the sine qua non, but without the latter, the system would not be respected and therefore not be resorted to.

    I say, as do many others, that there is a better way to structure feature no. 1 in order to continue to produce (and even enhance) feature no. 2. I also believe that the government would implement improvements if they were recommended by a body such as the LSUC and if it were demonstrated that, in the end, there would be a net saving to the government; i.e., us the taxpayers. I believe that this can be demonstrated (it is not controversial to point out that the workplace productivity of those involved in litigation would be improved if their cases were concluded far earlier than at present).

    I wish that the LSUC would set up a committee with just that mandate instead of continuing to waste its time looking at ways to sell our independence and the true public interest out to nonlawyer entities that intelligence and experience show are and will increasingly be anti-competitive, will add two more layers of overhead, will put profit seeking on behalf of remote shareholders ahead of our ethos of giving advice that is in the best interests of the client not ourselves.

  19. Andrew, I agree that there has been some oversimplification, but this is a thread, not a whole cloth. I also agree with you that all aspect of the system should come under scrutiny, not just the “Rules of Court”.

    That said, it should be noted that a major problem with the “Rules of Court” is that they provide the golden opportunity to engage in some of the other problems you sensibly identify such as protracted crosses, huge time gaps available to fill with additional research, and the like. I do not know how big a problem it is to have judges whose career backgrounds do not match the subject matter in the courtroom, but it is worth having a look at. Certainly, there are too few judges to allow for getting in front of one in a timely way, and the mismatching may be a function of the chief having to rank timeliness in case assignments above judicial career backgrounds. I will bet, though, that the chief does his or her level best to assign a judge who can handle the subject matter.

    I agree that many self-reps are there because they would not accept sound legal advice or because they have (television derived?) unrealistic expectations of the results they seek. But our goal should be to take away the litigation affordability barrier, the barrier that dwarfs all other real and trumped up barriers combined. Once we do that, we can deal with any remaining self-reps who are unreasonable or frivolous and vexatious. At least then the barrier will be neither systemic nor the fault of those lawyers who love, or who think they are compelled, to drag things out.

    You ask, Is it every person deserves their day in court? Or every reasonable person? Can the system differentiate between the two enough to actually make the system BOTH more accessible and yet still generally acknowledged as just?

    I answer no, not every person, not even every reasonable person, deserves a day in court for every injustice not matter how trivial. Some things do not meet the cost-benefit test as when I say to homebuyers that it is not worth their own time to sue the vendor just because a second-hand fridge conked out a day after the closing. Better to get a new fridge – it will be better and last longer. We still send a letter to the other side asking for a contribution as a matter of fairness, but if the other side says to stuff it, then it is usually better for the purchaser to get on with life and, if it makes him feel better, to send a brief (very brief) spasm of bad karma undulating toward the vendor. (My secretary has a theory that appliances form emotional attachments to their owners and, when they realize that their owners have abandoned them in favour of strangers, the appliances cry, all over the floor.)

    And I answer yes that a better designed system can be both more accessible and remain just (and even more just).

    You point out that It is access to justice – not access to courts. And a lot of litigants do get “just” advice – before riding off to tilt at windmills.

    You are right that they usually do get fair and just advice. One of things we need to do is make sure that any windmills they are tilting at were not built or maintained by the system or by us. If they want to continue to tilt, let it be at a windmill of their own making.

  20. “But I maintain that our litigation bar is so good that the lawyers can accurately work out what an informed and competent judge would quite early in the process. Having done so, why should the system invite one party or the other to drag it out?” Use of AI would probably make this process even faster… So is technology the answer to making the process more efficient in time and cost thereby making justice that much more accessible?

  21. Verna, there are programs that purport to predict what a given judge will do based on his or her past judgments. They cannot be all that great or almost all cases would be decided that way with only rookie judges being wild cards. That is not the kind of intelligence on the part of barristers I am talking about.

    As a solicitor, I am used to looking at problems as a puzzle to solve, not as a battle to win or avoid losing. I come from Quebec where my father was a notary for over 60 years. The Quebec notaries do not regard themselves as representing either the purchaser or the vendor in the transaction, but as maintaining the integrity of the real estate system. When they find a problem, they fix it in accordance with that integrity regardless of the impact on either side.

    In my experience, most barristers can work out objectively, and fairly early on, what an informed and competent judge would do. This is different from trying to work out subjectively what the judge assigned to the case would do. In other words, most barristers can think judicially when called upon. Unfortunately, the system encourages them to think adversarially and there are, in fact, some good reasons for that. I think, however, that there is too much encouragement to think adversarially and not enough incentives to think judicially. Of course, many of the best barristers think both ways. Many of the best barristers are rarely in court because they are able to engineer a relatively early settlement and keep their clients out of court. This happens more often when there are enough clients per barrister to keep them busy. As has been observed many times by many knowledgeable commentators, a hungry barrister is a dangerous animal. See the US litigation misery.

    Nevertheless, I think there is a role for increased use of technology and the profession is not adverse to using it whenever it is beneficial to do so. But we must be careful not to swallow the nonsense that only by selling ourselves to the profit seekers can we access sufficient technologies. We can access them, buy them and lease them, and help to develop and refine them, without selling out the profession.

    Perhaps AI could be used to deal with the penny-ante broken fridge type cases – both parties insert their claims and monetary demands, a computer spits out a decision, and the parties live with it. The problem with too much reliance on that is that issues arise in easy and unexpected ways, leading to exponential complexities that militate against algorithmic solutions. This is especially true when the initial dispute was about more than a broken fridge. Family law, with children and finances and often high emotions involved, is just one example where an algorithm is not going to be of much use beyond working out the support payments (and we have the provincial guidelines for that already.

    Whenever I send one of these responses, I get the feeling that I have only scratched the surface of the discussion, but one must work within the limitations of time and the fear of carpel tunnel syndrome.


  22. Mr. Wright, thanks for your response. The suggestion of the use of AI was not that AI would displace or replace legal professionals but instead to assist or be used as a tool to expedite faster and better outcomes. IMHO to “insert their claims and monetary demands, a computer spits out a decision, and the parties live with it” would undermine the dignity of both the profession and the client and probably bring into question the rule of law.

  23. I am glad you feel that way. AI is trumpeted as a great boon to the public by some ABS supporters who then argue that only big companies can set it up. Knowing little about Wills law, they tried to claim that Wills could be done via an algorithm but it was easily demonstrated that such a process was seriously deficient in important ways including, among others, determining capacity and the presence or lack of undue influence.

    I mused about AI only in the context of a dispute over something so minor that not even paralegals (or paraparalegals) would take on; e.g., the value of repairing or replacing a second-hand fridge. For something like that, I doubt the dignity of the profession or the rule of law would be at any risk. The real danger would arise if something like a broken, second-hand fridge dispute resolution system were used in more important disputes (and virtually every other type of dispute you could name would be more important) where, as mentioned, additional issues or values cause the complexities of the matter to rise exponentially.

    I also point out that nonlawyer ownership of law firms is totally unnecessary to set up a broken, second-hand fridge dispute resolution system. If there is a dime to made by setting up such as system, there will be lawyers who will do it. And if there is no money to be made out of it, then why fuss about it? Life is not perfectly fair. Sometimes you have to buy a replacement fridge (and then you are better off anyway – you have a better fridge that will last much longer and, being new, will have a higher environmental efficiency rating and save you on the hydro bill).

    All this talk of fridges is making me hungry so……

  24. If the supporters of non-lawyer ownership (I hesitate to use ABS because ABS doesn’t only pertain to non-lawyer ownership) of law firms advocate the mechanization of the majority of the lawyer’s role it is to be assumed it’s because they know that a decrease in lawyers would entail that the customers of such software and machines would be non-lawyers because the initial buyers of such would have been replaced. The producers of the software and machines should (or must be) be aware that in order to keep producing and selling their products — if the original buyers are no longer in existence or fewer in number — there would have to be some “human being” or human-run entity acting as purchasers in order for the producers of such mechanisms to continue to exist. I suppose similar to a snake biting its own tail. Of course this is all just speculation.