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Assessing the Impacts of Lawyer-Assisted Civil Dispute Resolution

There are important benefits that derive from understanding the impacts of lawyer-assisted civil dispute resolution. In a 2019 article published in the Alberta Law Review, authors Sarah Buhler and Michelle C. Korpan consider this issue as relates specifically to legal representation provided through legal aid and clinic settings in Canada.[1] Underlying the case that the article makes for this type of research is the recognition that this is one of many areas in which there is a considerable lack of justice research in Canada.[2] One of the reasons identified for conducting this kind of research is the effect that the resulting empirical evidence might have on driving funding investments.[3] Importantly, there are also marked, anticipatory benefits to service providers who might apply research insights on what works and where improvements are needed to adapt their services to effectuate greater positive impacts. While the article acknowledges the value of research focused on the outcomes of adjudication, it notably advances the importance of people-centered studies that generate insights on the long-term health and stability of users of these services and that can offer evidence-based learnings on why legal representation matters.

It is generally assumed that access to legal representation is a good thing. Legal scholarship from jurisdictions where outcomes-based justice studies have been carried out generally point to better legal outcomes for represented parties than unrepresented parties. These findings are important. Notwithstanding, legal problems –and, in particular civil and family justice problems– rarely exist in a vacuum. They are often legal as well as personal, social, financial, health, economic and other types of problems. This complexity is evidenced at every stage of the problem experience— from the outset of legal problems to their further development to, as the CFCJ seeks to investigate through new research efforts (discussed below), varying lengths of time after the problem has been resolved.

Research by Professor Rebecca Sandefur is a good place to look to understand why, even during the early stages of a legal problem, people frequently turn to non-legal resources for assistance. Many people do not immediately recognize the civil legal dimensions of their problem(s). Rather, these problems might be viewed as personal problems, bad luck, social problems, problems with bureaucracy, or characterized in other ways.[4] The actions that people take to resolve a problem reflect the way in which they understand the problem as well as the resources available to them. To that end, many people will often look firstly for assistance outside of the law for problems that they do not consider to be legal.[5] While many legal problems do not warrant resolution through the formal justice system or with full coverage legal services, some problems might be resolved in more effective ways with multiple kinds of resources – both legal and non-legal.

As legal problems progress, people incur different types of tangible and intangible costs. Research from the Canadian Forum on Civil Justice brings some of these costs into relief. The CFCJ’s Cost of Justice report reveals that average, out-of-pocket spending to resolve a civil or family justice problem in 2016 was almost equal to what a family might spend on food in a year.[6] Separate from legal expenses, there are often related physical health, mental health, personal, family and other problems connected to everyday legal problem experiences. For example, CFCJ research also reveals that people with one or more everyday legal problems often report having visited a health professional for high levels of stress and/or physical health problems that are the direct result of their everyday legal problem(s).[7]

Despite the interconnectedness of legal and many non-legal problems, there are a lot of unanswered questions regarding what processes or combination of tools might show the most promise in mitigating the adverse impacts of experiencing legal problems, when, for what problem types, or for whom. Put differently, Canadian legal scholarship is yet unable to answer how what you do to resolve an everyday legal problem and when you act matter in the short and long terms. The Measuring the Impact of Legal Service Interventions project (“Measuring Impacts” project) led by researchers at the Canadian Forum on Civil Justice is a first-of-its-kind project in Canada that seeks to produce research insights correlating legal interventions with short- and long-term impacts for people experiencing everyday legal problems. Now entering its second phase, the Measuring Impacts project has already produced a review of gray and peer-reviewed literature on justice impact studies,[8] explored questions around research design, and resulted in a methodology report that lays the groundwork to assess diverse non-legal and legal impacts for users whose problem resolution pathway includes lawyer assistance.[9]

Phase Two of the CFCJ’s Measuring Impacts project launches in April 2021. Like Phase One, this second phase is supported by a research grant from the Law Foundation of Ontario. Phase Two (2021 -2024) seeks to apply learnings from the first phase (2019-2020) to research carried out through legal clinics in Ontario. This phase of the project will apply a longitudinal research approach to gathering data on impacts over time, a noteworthy research objective given the dearth of longitudinal studies carried out on civil justice questions in Canada. The CFCJ anticipates that this project will make a significant contribution to better understanding the relationship between interventions and impacts for users and will also offer insights that will support the investment in and reallocation of justice resources for more effective and durable solutions.

To learn more about the Measuring Impacts project, visit the CFCJ’s Measuring Impacts project page: https://cfcj-fcjc.org/our-projects/measuring-legal-service-interventions/.

Lisa Moore
Canadian Forum on Civil Justice (CFCJ)

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[1] Sarah Buhler and Michelle C, Korpan, “Measuring the Impacts of Representation in Legal Aid and Community Legal Services Settings: Considerations for Canadian Research” (2019) 56-4 Alta. L. Rev.1117, 2019 CanLIIDocs 2092, <https://canlii.ca/t/skqf>.

[2] See e.g. Canadian Bar Association, Reaching Equal Justice: An Invitation to Envision and Act (Ottawa: Canadian Bar Association, November 2013) at 148, online: CBA <https://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/EqualJusticeFinalReport-eng.pdf>.

[3] Supra note 1 at 1120. See further Lisa Moore and Trevor C.W. Farrow, Investing in Justice: A Literature Review in Support of the Case for Improved Access (Toronto: Canadian Forum on Civil Justice, August 2019), online: <https://cfcj-fcjc.org/wp-content/uploads/Investing-in-Justice-A-Literature-Review-in-Support-of-the-Case-for-Improved-Access-by-Lisa-Moore-and-Trevor-C-W-Farrow.pdf>.

[4] Rebecca Sandefur, Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study (2014) at 14, online: <https://www.abajournal.com/files/sandefur_accessing_justice_in_the_contemporary_usa_aug2014.pdf>.

[5] Research from the Canadian Forum on Civil Justice reveals that for people who take at least two actions to resolve a legal problem, only 4.6% contact a lawyer as the first step and 7.6% contact a lawyer as a second step. For people who take at least 3 actions, only 6.5% contact a lawyer as the initial step while 17% contact a lawyer as their third action. See further Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Cost of Justice Survey Data (Toronto: Canadian Forum on Civil Justice, 2018) at 111-114, online: CFCJ <https://cfcj-fcjc.org/wp-content/uploads/Everyday-Legal-Problems-and-the-Cost-of-Justice-in-Canada-Cost-of-Justice-Survey-Data.pdf>.

[6] See Trevor C.W. Farrow et al, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) at 14, online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

[7] Ibid at 18.

[8] Lisa Moore, Measuring Impacts of Legal Services – A Literature Review on Research Design and Methodology (Toronto: Canadian Forum on Civil Justice, June 2020), online: CFCJ <https://cfcj-fcjc.org/wp-content/uploads/Measuring-Impacts-of-Legal-Services-A-Literature-Review-on-Research-Design-and-Methodology-Lisa-Moore.pdf>.

[9] Trevor C.W. Farrow, Lisa Moore and Ab Currie, Measuring Impacts of Legal Services – Bibliography, Network and Methodology (Toronto: Canadian Forum on Civil Justice, June 2020), online: CFCJ <https://cfcj-fcjc.org/wp-content/uploads/Measuring-Impacts-of-Legal-Services-Bibliography-Network-and-Methodology-%E2%80%93-Trevor-Farrow-Lisa-Moore-and-Ab-Currie.pdf>.

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