Understanding the Need for More Evidence-Based Decision-Making in the Legal Sector and How We Get There
Legal institutions demonstrate both a reliance on and a resistance to evidence-based decision-making. Across all areas of the law, cases are built, argued and decided on evidence that is meticulously gathered and assessed. Rigorous fact-seeking is the standard that gives credibility to law’s oft-cited assurances of impartiality and due process. Yet, the very legal mechanisms for which this standard informs and justifies decisions are often themselves without the data necessary to evaluate the frameworks within which they operate. The result is that there is a lack of data in the legal field in Canada (and elsewhere) on the processes used to resolve legal disputes and on the outcomes of those processes for users of the justice system. To the extent that there is data, it is often incomplete, inconsistent, inaccessible, or it exists in silos that preclude any sort of meaningful analysis. Evidence-based decision-making is front and centre when applying the law and often relegated to an afterthought in the administration of legal services and processes. Even now, as we charge ahead with modernizing courts and we celebrate shifts to paperless and remote processes (spurred by the pandemic), how much consideration, if any, has been given to systematically assessing these changes and their impacts? How do you determine the value, adverse impacts or even the potential of a system that resists measurement? There appear to be several reasons for this disinclination to empirical research and evidence-based decision-making that is standard in other disciplines.
The legal profession has long held a place of prominence among the world’s professions. This veneration has persisted against the backdrop of legal structures, rules and procedures that also have remained largely unchanged. Understandably, there is resistance to new approaches and new ways of thinking that could disrupt a system that has otherwise thrived. If it isn’t broken, why fix it right? The crisis in access to justice – the inability for our justice systems to empower people to identify and understand their legal problems, and provide avenues to effectively, reasonably and justly resolve legal problems – supports the case for change. Approximately 5.1 billion people worldwide have legal needs that are not being met. Through circumstance, location, discrimination and other factors, people are regularly denied access to meaningful justice. A system that works well only for the select few who have the resources to access its services is neither fair nor should it be immune to evidence-based directives that can lead to improvements. To effectively make improvements requires actionable data on what works, how, for whom, to what extent, and in what situations. The pandemic has shown that the legal sector can embrace change when necessary. The crisis in access to justice, which has been made worse by the current health and economics crises, is proof that it is necessary.
Research evidence vs. research data
The word “data” has increasingly come to be construed as negative. Privacy breaches, surreptitious sourcing of personal and demographic information and improper applications of data have contributed to growing public concern and distrust around data collection and its use. Further, details about data mining and the extent to which companies around the world have contributed to disinformation campaigns or else sought to manipulate the public with the help of data has also helped to enshroud the word “data” in a cloud of negativity.
Data is a valuable currency, more so now due to its applications and reach through online services. As privacy and intellectual property laws evolve in response to shifting questions around the collection and the use of data, it is important to note that, more often than not, access to data is a good thing. Researchers have long sought to study, test, measure, and collect data that can be applied for the greater good. The medical field’s reliance on data is proof of this. Empirical evidence—or empirical data—is necessary. It may be that legal researchers will need to do the work of assuring the public, governments and even legal professionals of the need for data that can inform pathways to improve access to justice. There is additional comfort to be found in the conscientiousness of legal researchers at universities and university-based research hubs, like the Canadian Forum on Civil Justice, to adhere to research ethics and privacy guidelines as is required. Alternately, a “rebranding” exercise could also prove to be beneficial, with legal researchers leaning more into using the word “evidence” (in lieu of the word “data”) to possibly make the prospect of data collection more palatable.
Investing in legal research
Experimentation and empirical research are processes that are commonly associated with medical and pure sciences. Testing, measuring, analysing and gathering evidence are gateways to new theories and innovations, and are prerequisites to change in the sciences. In other areas, like Business and Marketing, significant investments are made in research and development (R&D), which frequently yields high returns. By comparison, the legal field has been consistent in its passive approach to research, particularly as relates to research on legal processes, outcomes, and experiences for civil justice matters. Because of this, in Law there continues to be a lack of urgency around the need for research and data. We do not know what data is available or what data we need until we need it and we fail to see the value of sustained investments in research to address justice data gaps. The type of information that may be useful to the various stakeholders in the justice community may differ. Notwithstanding, if we are to make meaningful progress towards better access to justice, we need to have a better understanding of the different aspects of our current justice framework, their strengths, weaknesses and impacts.
Public discourse and everyday legal problems
The types of legal problems that most people experience are not the types of legal problems that typically receive attention in public domains. For many, the knowledge of how difficult it can be to navigate the legal system and the costs of resolving a serious civil or family justice problem come from personal experiences. Attention brings awareness; it generates public discourse, and it can help to underscore the extent and urgency of addressing the access to civil justice problem. In 2020, protests against climate inaction, racial injustice, and police brutality demonstrated the power of the public to drive important conversations and enact change. It may be that, to help build momentum for more evidence-based decision-making in the justice sector, researchers will need to work to engage the public to help share what we know about access to justice and how much more work needs to be done.
The work to make research and evidence-based decision-making an important component in the administration of legal services is not beyond the scope of what is possible in the legal field. Reports from bodies like the Canadian Bar Association and the national Action Committee on Access to Justice in Civil and Family Matters, among others, call for more coordination within the legal sector, more research and more funding and support for research and knowledge mobilization. If the legal sector is to make progress towards better access to civil and family justice, we need to understand the value of good data, support broad-based data collection and work towards solutions that are informed by this data.
Director, Canadian Forum on Civil Justice
 See e.g. Focus Consultants, Civil Non-Family Cases Filed in the Supreme Court of BC – Research Results and Lessons Learned (Victoria, BC: Focus Consultants, September 2015) online: CFCJ: <https://www.cfcj-fcjc.org/sites/default/files//Attrition%20Study%20Final%20Report.pdf>.
 See e.g. Beverley McLachlin, “Access to Justice: A place for technology in the justice system”, The Lawyer’s Daily (July 17, 2020), online: <https://www.thelawyersdaily.ca/articles/20104>.
 Task Force on Justice, Justice for All – Final Report (New York: Center on International Cooperation, 2019) at 18, online: <https://bf889554-6857-4cfe-8d55-8770007b8841.filesusr.com/ugd/90b3d6_746fc8e4f9404abeb994928d3fe85c9e.pdf>.
 See generally Canadian Bar Association, Reaching Equal Justice: An Invitation to Envision and Act (Ottawa: Canadian Bar Association, November 2013) at 128-129, online: CBA <https://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/EqualJusticeFinalReport-eng.pdf>.
 Ibid at 147-148.
 Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee on Access to Justice in Civil and Family Matters, October 2013) at 23, online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf>.