Civil Procedure: Does It Have to Be This Hard?

Trouble sleeping? Try having your phone read the Rules of Civil Procedure to you. You’ll drift off to a soothing stream of minutiae, like sheep jumping over a fence. Very few Big Ideas will excite you. Most rules (not to mention the subrules and the clauses and the subclauses) are about what a party or court must do in a very specific scenario. For example, my civil procedure students always perk up when I tell them about Rule 20.04(4), which explains what to do if a summary judgment motion is deemed to involve only a question of law, but has been brought before an associate rather than a full judge. (They all bring coffee to class.)

But one Big Idea can usually be found, lurking somewhere near the top of every procedural code across the country. This is the “purposive” or “interpretive” section. It’s meant to guide the interpretation of all the other Rules, and set out the overall objective of the code.

A Classic Formula

Rule 1-3 in British Columbia’s Supreme Court Civil Rules, for instance, states that the procedural code should aim for the “just, speedy and inexpensive” determination of every dispute. These words were borrowed from the 1938 United States Federal Rules, which were state-of-the-art at the time. These words (or synonyms) now appear in all of the purposive provisions found in civil rules across Canada.

No one can argue against procedure being just, speedy, and inexpensive, but I think something important is missing. Procedure should also be easy, and I think this word should be added to the purposive rules. That would encourage those in charge of the system to work harder to reduce the psychological costs of seeking civil justice. Psychological costs are undesirable effects on a person’s mental state caused by their participation in some process. Like the two other kinds of costs,, they burden people who are trying to get what the substantive law promised them. The system should do whatever it can to minimize psychological costs.

A child who’s caught up in litigation about their own future pays a high psychological cost; so too does a plaintiff who is cross-examined about their own medical condition. Like money and time costs, imposing psychological costs might be necessary in pursuit of justice, but reducing them should be a goal of the system.

Unnecessary Evils?

Some of the psychological costs imposed by litigation may be completely unnecessary. For example, the use of arcane language and numbering schemes imposes unnecessary confusion on litigants. Ontario decided to use the word “expeditious” instead of “speedy” in its own civil procedure interpretive rule. It means the same thing but lots of non-lawyers (and some lawyers) would have to look it up to understand it. There are lots of people who have been the victims of real injustice, and cannot afford a lawyer, who look to the law to see if they can use it. The more words like “expeditious” they encounter, and the more numbers like 57.01(1)(0.b), the more likely they are to give up because they decide they can’t afford the psychological costs (combined with the time and money costs) of continuing — especially against an adversary for whom it appears to be easy.

The careful deployment of artificial intelligence – which if properly supervised can be very good at making complicated things simple – is a tool that our courts and tribunals can’t afford to spurn if they want to make procedure easy as well as speedy and inexpensive and just.

Psychologically Costliest for Self-Reps

Perhaps the reason why “easy” wasn’t included in 1938 is that all litigants were presumed to have lawyers with expertise in the US Federal Court, who would absorb all or most of the psychological costs of litigation on behalf of their clients. Today, however, 75% of US federal court civil cases involve at least one SRL, and proportions in Canadian civil courts are estimated at 40%.

The National Self-Represented Litigants Project has taken the lead identifying the psychological costs confronting those without lawyers. As one SRL recently told the project, it’s necessary to “prepare yourself for a deep dive into the legal world,” and it’s “a full-time job” to learn the codes and cases. Canada’s best adjudicative tribunals, designed from the ground-up for ease of use, point the path forward for our civil courts.

Some courts have also got the message, for example BC’s Small Claims Court, whose rules’ “purpose … is to make it as easy as possible for people to use the court to resolve their disputes.” Civil procedure might always be a bit boring, at least to sane people. (It’s a good thing my course at Windsor Law is mandatory, or I might be out of work). But maybe with intelligent design and goodwill it doesn’t have to be as psychologically demanding – as stressful and confusing – as it is.