Column

What if Our Access to Justice Efforts Succeed?

During my time with a strategic consultancy several years ago, one of our group retreats turned to the subject of marketing. Ideas were floated and plans were drawn up for a series of articles, speaking appearances, and other means by which we could raise our individual and collective profiles and drive more business through the door.

Eventually, I put my hand up to make what I felt was a salient point: Before the meeting began, we had all been chatting about how busy we were and how crammed our schedules had become. Before we engage in a business development campaign, I asked, should we maybe check to see whether we could accept any of the new work we were hoping to attract?

Now, before any legal marketers swoop in, I’ll agree that it’s important to sow the seeds today for the harvest you want tomorrow, and that business development is in some ways a permanent obligation for a professional. That was the group response that day, at any rate.

But my objection was more practical: If we’re already at full capacity and we have no plans to expand that capacity, what do we think will happen when we encourage more clients that we’ll only have to turn away? What will we do if our marketing campaign actually succeeds?

I recalled this incident recently while reading an article about a study by the U.S. National Center for State Courts (NCSC) on remote hearings in Texas courts. The headline finding was that remote court hearings were taking about 34% longer than in-person hearings.

The obvious riposte to that finding, as noted by several people who responded to my tweet about the study, was that this result didn’t take into account all the time the parties saved by not driving to the court, finding a parking space, waiting for their matter to be handled, and driving back home. The slight increase in actual hearing time is more than made up for by the time and hassle savings elsewhere.

From the users’ point of view, in other words, the conversion to online hearings has been a smashing success. I agree. But from the courts’ point of view, which is also real and valid, hearing times have grown by a third, and that’s not a trivial problem.

Some of the factors cited for the increase, such as technical issues and a lack of preparation by parties, can be addressed with more education, advance planning, and user support. But I was struck by two other reasons given: “fewer default judgments due to the accessibility of attending hearings remotely, and the increased numbers of parties in hearings.”

A funny thing happened when the courts converted (out of necessity) to online hearings: More people could access those hearings. And so they did. And the courts were not, and are not, prepared or equipped for that greater volume of participants.

This isn’t a case of a giant wave of new parties and litigants entering the Texas court system because the hearings went online. This is just the same number of parties and litigants as before — the difference is that a bunch of them weren’t automatically declared to have lost their case just because they couldn’t physically make it to the courthouse.

You know that famous anecdote about the WWII airplanes with bullet-riddled wings, and how the Air Force engineers correctly deduced that they needed to reinforce the engines, because the planes that were shot in their engines never survived to be counted? Welcome to the legal system’s version of that lesson.

If you’re an advocate for increased access to justice — and it seems every government, court, and legal organization is these days — then you might want to reflect on the lessons of the WWII airplanes and on the results of the NCSC study. In particular, you might ask yourself a question about your efforts to increase access to justice: What if they work?

What if hundreds, thousands, tens of thousands more people could access the legal system easily, conveniently, and effectively? Will the legal system be able to accommodate them? Will the legal system have education, guidance, technical and procedural assistance on hand to greet them? Will it have built more courthouses and appointed more judges to serve them? Or more usefully, will it have created many more Civil Resolution Tribunals?

You’ve heard the old proverb, “Be careful what you wish for — you might get it.” Here’s a slightly modified version for the legal system: “Be careful about your efforts to increase access to justice — they might succeed.”

Comments

  1. Great thought-provoking column, Jordan.

    This brings to mind another time-honoured metaphor re building fences at the top of the cliff, rather than supplying ambulances at the bottom. Increasing access to justice needs to be more about helping and helpfully diverting people at the wide part of the funnel, than about serving them at the expensive points of last resort. To me, success in access to justice looks like properly informed people engaging in fruitful alternative dispute resolution mechanisms, and lightly used courts and tribunals.

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