How Many Wake-Up Calls Do Our Legal Profession and Court System Need?

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.”

Comments

  1. Steven Haddock

    As a frequent Ebay seller, and having had several disputes, their “dispute resolution” system is essentially “give the buyer back his money no matter what the terms of sale were”. About two years ago, one of the lots I mailed got lost in the mail. The terms of sale were that, because the lot was sent by ordinary lettermail, the buyer assumed the risk (which is good common law on the subject too). However, when the buyer didn’t get delivery, Ebay wouldn’t even consider a response other than “what was the tracking number?” For scale, it was $15.00 lot and the postage was $1.00 by lettermail and $16.00 for the cheapest trace mail option. In another worse case, a friend of mine sent a $150 lot by trace mail and the buyer claimed they didn’t receive it. Ebay refunded the money even though Canada Post produced a signed receipt (my friend didn’t even qualify for the $40.00 indemnity).
    I will admit even buyers fall afoul. One of my friends bought a clearly fraudulent item and tried to return it. The seller refused returns even though they offered refunds for returns. Because the lot had actually been delivered, Ebay sided with the seller in this case.

  2. While eBay disputes for a few hundred dollars works fine, I think that there needs to be more oversight when you start to get into larger disputes – which will inherently necessitate some legally trained individual overseeing the process. I think that most people would be rather upset about the lack of fairness in the eBay process if they were determining disputes over $1,000 – not to mention criminal and family litigation.

    Until AI can replicate our mind’s ability to create and apply diverse principles of law drawn from unclear and changing sources legally trained individuals will still be required for the foreseeable future. This leaves aside the obvious issue that the blog post started with a judge adjourning a criminal process because the accused needed representation. How is that the courts failing anyone? I would argue that the court in that case has actually assisted as that person did not qualify for the government benefits without the court order.

  3. I don’t think the civil court system was ever meant to be for most disputes the general population has to deal with.

    Why is there an expectation that taxpayers or lawyers should bear the cost of highly-trained experts (the most highly-trained of which are often judges) sorting out Ebay-level disputes?

    I welcome technology that will replace lawyers and judges for most disputes (A tech startup I am involved with is actually building such technology).

    But I oppose any dramatic loosening of procedure in the Superior Court a la small claims.

  4. While I think your fundamental premise is solid, the ebay example is not. As the comments show, and based on our household ebay experience, I think ebay gives the APPEARANCE of having resolved disputes, when in fact it would be more accurate to say it has settled them, whether to users’ satisfaction or not. The fact that users are to a large extent dissatisfied is apparent by the growth of alternative sites and selling mechanisms (garage sales…) and the concomitant evolution that ebay systems and rules have undergone – and continue to undergo.

    And therein lies the crucial point. Ebay is a responsive system. Law hasn’t had to be. And it still doesn’t really have to be, because it’s still the only game in town. All the window-dressing in the world and changes to the doorway won’t alter that.