Access to Justice Is Not (Just) About Lawyers and Judges
Imagine for a moment that starting tomorrow, every lawyer in the world could be hired at no charge. They’re not working for free — maybe Jeff Bezos has decided to subsidize every lawyer’s income for some unfathomable reason. Basically, anyone can hire a lawyer for whatever they need at no cost.
Consider this, and then ask yourself: Would this make access to justice better, or worse?
Are we likely to see more cases filed, or fewer? Court backlogs grow, or shrink? Go a little further and ask: Do you think you’d be able to hire a lawyer at all? Or even reach one by phone? There’ll be a thousand people trying to get the same free resource you are. It would take years for law schools to pump out enough lawyers to meet the demand, and by that time, even Jeff might be starting to run low on cash. (Or maybe not.)
I am not saying that lawyers’ high fees aren’t a barrier to justice — they certainly are. The fees lawyers charge to help people solve legal problems are a significant factor in why 85% of legal problems go unaddressed by lawyers or the legal system.
I am saying that the legal system’s myriad problems are much more deeply rooted than the simple supply-and-demand proposition that if lawyers were more affordable, more people could get justice. If the cost of hiring a lawyer were zero, the civil justice system would still be a broken-down mess.
This is one of the conclusions I drew from the Canadian Forum for Civil Justice‘s Cost of Justice Project at Osgoode Hall Law School in Toronto, as highlighted in this Law Times article and as detailed more fully in The Justice Crisis: The Cost and Value of Accessing Law from UBC Press. (See also this excerpt from the book here at Slaw.) From the Law Times article:
“For decades, we’ve tried to understand the access to justice problem by looking at the provider — meaning, lawyers, courts and academics in the system. What we have started to pick up on… is to shift our focus from the provider to the user – being the public,” says Osgoode Hall Professor Trevor Farrow, who is also chair at the Canadian Forum on Civil Justice.
Aside from courts and lawyers, access to justice requires public legal education, alternative dispute settlement, paralegals, regulatory innovation and robust legal aid, among other factors, he says. Also needed are social innovation initiatives, such as justice innovation hubs, NGOs, information centres and public/private collaboration, said a press release on the book release.
In July, a report from Community Legal Education Ontario found that to enhance access to justice, more collaboration was needed between the justice system and not-for-profit community groups. “Having access to justice primarily means having available options to prevent, address and resolve the legal problems and challenges that people face in their daily lives. This requires more than traditional courts and lawyers,” says Farrow.
These insights are solid — but we need to go further. We need to change the way we think and talk about access to justice entirely. We have to stop looking at everything about the justice system through the lens of its administrators — courts, judges, and lawyers —- and start looking at it through the lens of its users in particular and society more generally.
What do people need from the justice system? What are their “parameters” for effective justice — beyond what length of wait time, beyond what amount of hassle and heartache, beyond what cost in time and money, is justice simply no longer worth pursuing for them? If we, the system’s overseers, cannot ensure justice within these parameters, then our system is worthless, an expensive fraud.
Lawyers and judges stand at the gates of the legal system, and we declaim at length in speeches and scholarly papers about the hallowed shining power of “justice.” Most people don’t think about or care about any of that. They just want their child support payments. They want to stave off eviction. They want their insurance company to compensate them for the injury they suffered. They want the salary that their employer is wrongly withholding from them. And they wish we would just shut up and give them what they need.
If lawyers and judges insist that every legal solution must involve us and that every road to justice must come through us, we’ll never get anywhere. We need to break with our previous assumptions about what “justice” means, how it’s obtained, and what function it performs in people’s lives. We need to listen to the people who need the system to work and let them guide us.
We need to empower people to define their own justice outcomes and pursue legal remedies for themselves, according to their own situations. People have rights to legal remedies, but they don’t have the power to exercise those rights, because we’re keeping that power from them. That has to end.
There’s no better example of this in the world than right here in Canada. The Civil Resolution Tribunal, a stunning success in BC that every other province and territory is delinquent in not copying, takes a very different and much simpler route to justice.
- Get the lawyers and judges out of the room. Gone. Buh-bye.
- Ask people what they want and need to help solve their civil justice problems.
- Design brand-new systems based on what they tell you.
- Test the systems with people, starting with those with the most access barriers.
- Revise the systems in response to their feedback, constantly.
- Send only the most serious, complex, or intractable problems to lawyers and judges.
- Go back to Step 2 and repeat in perpetuity.
The CRT works. The traditional civil justice system doesn’t. What more do we need to see? What are we waiting for?
What we’re waiting for is Step 1. We need lawyers, judges, and justice officials to get out of the room. We need them — us — to let go of the need to be in charge, to be the gatekeepers, to exercise authority over people’s pursuit of justice. We need to instead help people to identify their own needs, understand their own rights, and obtain their own remedies, with or without us.
We failed to lead. We refuse to follow. So let’s just get out of the way already.
Yet the requirements for law school & c & c. that restrict the supply of lawyers and judges were imposed in the name, at least, of helping people have access to a system that would truly satisfy their just claims (and not make things worse). It seems likely that if people and institutions with other names are introduced to provide accessible justice, they too, over time, will have such requirements imposed on them.
The starting point must be Plain Language. If laws and judgments were all written in Plain Language, self-represented parties could do many of the things that lawyers now do. Wealthy parties would still be free to hire lawyers if they wished. Also, we sometimes forget that the administrative law system is relatively user-friendly. Some of the things now done by the courts should be done by new or expanded administrative tribunals.
Thanks for this. It seems that in many cases, people want a solution rather than justice. My only fear in a CRT would be that the most vulnerable party in a dispute would lose too much but then, than happens now plus the anguish and expense.
There’s nothing in the above post, and the writings referred to in it, that attacks the heart of the problem—lawyers’ method of producing legal services is very obsolete. But to change it requires the assistance of their law societies to change the method by which lawyers produce legal services—the same transition that all of the manufacturing of goods and services has undergone for more than 120 years. They did so to make more money, as would lawyers using a support-services method of production.
It’s a problem concerning the interplay of economic factors of the various methods of producing all goods and services, including professional services. To wit: “at present, there are no economies-of-scale in the practice of law.”
And, people want and deserve “their own lawyer.” If the same strategy as suggested in the above article were applied to medical services, you would look for ways to do without the family doctor, and the whole of the medical services infrastructure. It exists because of the kind of pressure brought to bear that creates significant innovation. It is now very necessary that, that kind of pressure be applied to lawyers. People know and want the professional relationship provided by a lawyer, and not just a “charity relationship” as provided by the many access-to-justice (A2J) agencies, or the commercial relationship provided by the commercial producers of legal services, such as LegalZoom and RocketLawyer, or the hundreds of small highly automated start-ups, or the “lesser professional relationship” provided by unsupervised paralegals, or the very simplistic services provided by law society “alternative legal services.”
It is not necessary to create a whole new infrastructure for providing legal services. That majority of people who cannot now afford lawyers pay for the justice system whereat all lawyers directly, or indirectly work and feed their families. They are the majority of taxpayers and voters. But the legal profession and its law societies do nothing to give that majority affordable lawyers. That’s potentially, great political vulnerability for the legal profession. It just needs a leader to consolidate that great potential political force.
However, to attack law societies effectively requires also attacking the governments that fail to hold law societies to account for their failure to perform their statutory duties. And that requires attacking the power structure of the justice system. Are you ready to speak such truth to power? If enough people don’t, the A2J problem will never be solved. But, lawyers should want to because they themselves are a major victim of the problem, most of whom are short of clients due to their obsolescent method of producing legal services. And, the same obsolescence will eventually make victims of all lawyers if they don’t change from their present cottage-industry method of producing legal services to a support-services method.
The big law firms and specialized practitioners will eventually solve the problem for themselves, but the rest of us need the help of our law societies to sponsor the creation of the necessary support services. Similarly, no doctor or doctor’s office itself could have created the present infrastructure whereby medical services are provided.
To do as the above article advocates, is to leave the problem of unaffordable lawyers’ services unsolved, and growing worse, and therefore eventually victimizing everyone. All that is presently being used and advocated is at best an elaborate (but commendable), “charitable relief program.” But it leaves the problem growing and never-ending.
For the solution to the A2J problem of unaffordable legal services, see my Slaw post of August 6, 2020: “Law Societies’ ‘Bencher Burden’ Causes the Access to Justice Problem”; and the article linked in its endnote 5: “Access to Justice-Unaffordable Legal Services Concepts and Solutions (SSRN, July 15, 2020).