Every lawyer probably got that phone call. Someone owes me a thousand dollars. Can you help me? Someone cut a branch on my tree without my permission. Can we sue them? Or the toughest question of all when random strangers call you for advice: do I have a case? No, you don’t. Well, wait: you’re frustrated because no responsible lawyer can answer this question on the spot, and you’re frustrated because you know that even if they have a case, they probably should not hire you because of your fees. It’s a simple cost/benefit analysis.
Let’s focus on the second point: is it unfair that the cost of litigating some disputes is prohibitive? Should everyone have access to the justice system at all times?
And it’s not only about small disputes or the legal fees. Big corporate parties litigating over millions of dollars in the justice system are not immune to this question. They will be mostly concerned with certainty and timeliness of outcomes rather than legal fees, but does the legal system or the public always owe them these things?
What is access to justice in civil disputes and should everyone have it?
Outside of frivolous claims, there are only two reasons to litigate a claim: ambiguous facts or ambiguous law.
The bulk of lawsuits that everyday litigators work on are about ambiguous facts. Except for a small group of appellate lawyers, litigators do not usually affect legal principles. The bread and butter of litigators is taking a mess of facts and cleaning it enough to hope that a judge will see the same thing as your client.
This is the everyday work of millions of lawyers and judges all over the world: organizing evidence to prove claims or defences. What is the true cost of this effort? Can a reasonable person that brings a vague story to a lawyer expect a cheap path to a court judgment?
A typical case: facts are in dispute, records are inconclusive or records do not exist and everything depends on the word of witnesses who will not even be heard until trial. To bring a case to trial requires on both sides at least two lawyers with ten or more years of training as well as their staff to organize and exchange this messy evidence and sometimes ask the court for help in doing so. Then the trial begins and an even more educated judge with his own staff will sit with the lawyers and the parties and the witnesses for days and hear everything and maybe hear some disputes about what the judge should or should not hear (because it’s unfair to hear some things).
Who in the right mind can expect this to be cheap?
It’s not cheap and it will not be cheap: both for the parties and for the public.
The cost to the public is great. Few people talk about it when discussing access to justice. Besides the obvious cost of court facilities and salaries for judges and staff, there is the opportunity cost of capable people with lots of training, experience, knowledge and intelligence sorting out some mess that’s often relevant only to the parties and that does not advance the law or the cause of justice in any way. What else could these lawyers and judges be doing? What truly important cases or policies would they work on? Does unconditional “access to justice” hurt the public interest?
Small claims courts are not much better: their main difference is relaxed procedure and evidence rules and increased judges’ discretion. It’s cheaper to bring cases to trial but the uncertainty due to judicial discretion and permissive procedure can be so high that many cases are still not worth litigating at all.
Justice is hearing and deciding disputes according to just principles but it is also refusing to hear a dispute if doing so on balance will cause more harm than benefit to the public interest.
It is not necessarily unjust to refuse to hear a case if parties did not keep accurate records. And the size of the claim should not be the only factor in deciding when the justice system will deem a case too expensive to hear for the value of resolving it on the merits.
This is an experimental sentiment. The law already supports presumptive restriction of procedural rights when the evidence is not in the right condition. The law has no qualms about eliminating access to justice completely due to expiry of fairly arbitrary limitation periods. The law should try to restrict access to justice by condition of evidence as well.
It is more just to do so now than before—because of technology.
Big business will not wait for the law to catch up. It has always seen justice and dispute resolution as a cost centre. Costs must be eliminated. Biggest advances in dispute resolution will come from eliminating disputes through automating transactions and enforcement (among other things through various blockchains).
As far as small disputes are concerned, similar technology will show up on our phones. Imagine an economic network where members voluntarily give control over their assets to algorithms in exchange for access to the community. Machines will close all transactions, and no human intervention will be possible. You make a loan on your phone, and on default, the community will automatically either transfer the borrower’s assets to you or garnish or tax the borrower’s future participation in the community until the debt is paid. This is going to be completely outside not only of local justice systems but also of national borders. If it seems strange to this generation, it will not to the next.