Last week, the Toronto Star ran a widely publicized story about a criminal proceeding, in which the accused was charged with drug offences. He earned $16,000 in 2015, which was too much for legal aid but not enough for a lawyer. Therefore, Justice Ian Nordheimer of the Ontario Superior Court stayed the proceedings until the government paid for counsel.
Sadly, stories like this are too common. The legal system, too convoluted to navigate without a law degree, means that the most vulnerable are left in the lurch. Compelled to interact with the judicial system yet unable to afford counsel and unable to interpret legalese, the accused is placed in an unfair fight.
Similar to the criminal system, our civil litigation processes are too opaque. Our procedures are stuck in a by-gone era. Chained to history, weighted down by inertia, and blinded by status-quo bias (thinking that things will always be this way), the wheels of justice turn slowly, burying the marginalized into the ground.
But, is it justifiable in 2016 that prosecuting or defending a lawsuit requires such specialized education and patience?
We have already seen technology begin to transform the legal space with online standard form contracts and dispute resolution. Legal Zoom and eBay are just two examples. As I wrote about before, over the years, eBay has processed an impressive 60 million disagreements between buyers and sellers on their website. Requiring no lawyers.
As technology exponentially transforms our world, it will be harder and harder for lawyers and judges to justify the opaque, slow wheels of justice. As Richard Susskind stated in Tomorrow’s Lawyers, sickness does not exist to make work for doctors, laws do not exist to make work for lawyers. So why shouldn’t lawyers and judges have “to adapt to changes in technology in order to continue to provide their particular service… Why should we be able to expect that treating courts like some kind of fossilized Jurassic will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?” (Bank of Montreal v Faibish, 2014 ONSC 2178)
For the general population, the court system is dangerously close to becoming extinct. With the emergence of technological alternatives, why should people choose to initiate a lawsuit in a provincial court? The Internet opens a sea of options. And the Courts are looking less and less attractive by the day.
It is time for our provincial governments to treat courts like a business – just look at Delaware! And make our legal system more competitive. Why? To inspire public confidence. As Justice Beverley McLachlin stated: “One of the features of all societies sharing a cultural commitment to the rule of law is public confidence in the justice system and the judiciary.”