The Current Justice Metrics Landscape

By: M. Jerry McHale, Q.C.

Introduction

A Roadmap for Change - the final report of the Action Committee on Access to Justice in Civil and Family Matters (“AC”) - calls for the nation-wide development of justice system metrics of success and systems of evaluation:

Reliable and meaningful metrics and benchmarks need to be established across all levels of the system in order to evaluate the effects of reform measures. We need better information in the context of increasing demand, increasing costs and stretched fiscal realities.[1]

The metrics deficit has been described as follows:

The problem revolves around the lack of reliable justice data, the lack of empirical justice research, inconsistent justice metrics and the inability of justice systems to measure the performance or effectiveness of their programs and processes … This lack of data and research capacity impairs policy development, handicaps effective planning and weakens claims for justice funding.  It is, generally, a serious impediment to access to justice reform.[2]

There has been considerable activity in the last year or so in response to this call. There is currently national recognition of the nature and significance of the metrics deficit and a wish for some form of national coordination in working, as a priority, towards a solution.[3]  This blog identifies a number of Canadian committees and other bodies that are presently working to enhance justice system metrics and build measurement capacity.

Activity

The following groups are taking steps to respond to the need for more and better justice metrics:

·         The Access to Justice BC, Measurement Working Group (A2JBC)[4]: has developed a measurement framework to support a shared approach to measuring, monitoring and evaluating improvements in access to justice in BC. The framework is inspired by the “Triple Aim approach” originally developed in the health sector.[5] The framework identifies a wide range of elements for potential use in measuring justice outcomes. It is a flexible framework that can be used by justice system stakeholders in BC to coordinate and align their various monitoring and evaluation efforts, and to learn from each other’s experience with access to justice innovations. A copy of this groups “Access to Justice Measurement Framework” paper will soon be available online.[6]

·         University of Victoria, Access to Justice Centre for Excellence (ACE): is working on the establishment of a “BC Research Framework Working Group”.  Representatives from the Ministry of Justice, UVic, the three courts, and other justice bodies will use this group as a forum to work collaboratively to promote objective performance measurement and empirical research, starting with the development of justice metrics and enhanced data quality. Tasks will likely include:

o   a data inventory: complete an assessment of existing data resources, data quality and data gaps;

o   data definitions: develop common definitions and standardized performance metrics to facilitate coordination and sharing of research;

o   data observatory: develop the mechanisms,  technical capacity and protocols needed to make data from diverse justice sectors within BC accessible to researchers, practitioners and others examining questions of access to justice;

o   coordination: coordinate research inquiries to ensure that optimal research opportunities are identified; to identify potential gaps, overlaps or duplication of effort; to allow interested parties to maximize scarce resources and expertise; to facilitate partnerships and alliances with other entities in BC holding justice data, and to disseminate research.

·         The Action Committee on Access to Justice in Civil and Family Matters (AC): as one of the groups that called for the nation-wide development of metrics of success and systems of evaluation in its Roadmap for Change report, the AC has recently followed up by consulting with its national membership on the question of national coordination of efforts to enhance justice system metrics.  At a meeting of AC members held in Vancouver in March 2017 there was a consensus that the AC should work to help coordinate and facilitate metrics development and information exchange between jurisdictions. The purposes of such coordination would include:

odefine what data is needed, for what purpose,

ouse common event definitions indicators and coordinated goals,

oensure some measure of quality and consistency in the data between jurisdictions,

opublish and share data,

oobtain a clearer profile of system users,

otrack cases mediated or settled out of the system,

oobtain data on user satisfaction (outcomes).

No final decision has yet been made about how the AC will respond to this goal, but there was much support for the idea that the Action Committee move to create a metrics sub-committee with representation from all provinces and territories.

·         CREATE Justice was launched in March of 2017 out of the University of Saskatchewan, College of Law.[7] It is a centre for research, evaluation, and action on the topic of access to justice, specifically in the areas of access to legal services, dispute resolution, and systemic justice. Its primary objective is to address key gaps in data and to promote action respecting access to justice research in Canada.  Its research will be oriented towards transforming legal and justice services and the removal of systemic barriers to justice.  While much of existing research focuses on “access” to legal services and institutions, CREATE Justice’s focus will be more on substantive, community-engaged, social justice research. 

·         Federal Provincial Territorial Assistant Deputy Ministers’ Metric’s Committee: This Committee was convened in 2015 and is co-chaired by Andrea Strom of the Ontario Ministry of Attorney General and an ADM from Alberta (yet to be named), with a Working Group of representatives from Ontario, Alberta, Nova Scotia and British Columbia. This Committee is exploring the coordination of government metrics and is working to assemble a draft table of justice measures, based on justice objectives articulated in the various AC reports.

·         The Accès au droit à la justice (ADAJ): This project is under the leadership of Pierre Noreau, professor at the Faculty of Law at the Université de Montréal, and a researcher at the Center de recherche en droit public. ADAJ brings together a consortium of 42 researchers who have identified some 20 research topics relating to access to law and justice.  A preliminary report from this group examines judicial metrics used throughout Western democracies to measure justice inputs, outputs and outcomes.[8] The goal is to develop a set of metrics reflecting Canadian values and adapted to the Canadian judicial system.  These researchers identified gaps and inconsistencies in data as well as weaknesses in quality and reliability. This led to recommendations for a second phase of their study which would be to develop, for Canada and each of the provinces, metrics and data creation and collection practices for benchmarking performance of the respective judicial systems.  The report also recommends the creation of an expert committee that would make decisions and advise in respect of the standardization of data across Canada.

·         The Western Canadian Data Analytics Task Group: was convened in 2016 and is comprised of representatives of the 4 western provinces. These jurisdictions are working to share and inventory information related to data analytics in BC, Alberta, Saskatchewan and Manitoba.  It is currently assembling an inventory of current, publicly reported justice performance measures in these jurisdictions.

·         The Canadian Centre for Justice Statistics (CCJS): This Statistics Canada body collects criminal and civil justice data from all jurisdictions and makes available datasets as well as analysis and reports on major trends in the system.  

Implications and next steps

These eight Canadian justice metrics initiatives are not currently coordinated.  As noted above, the importance of national coordination of this kind of work was reflected in a national survey of the jurisdictions completed this spring, and endorsed by the membership of the national Action Committee on Access to Justice in Civil and Family Matters at its annual meeting in Vancouver in March of this year.   

The next questions to be answered include:

  1. Who will take responsibility for coordinating justice metrics development initiatives?
  2. Who should be involved?
  3. What does “coordination” actually mean? What should it look like? What model would make it possible, without becoming unmanageable, to engage with all interested jurisdictions and stakeholders?
  4. How would this work be resourced?

____________

[1]“Roadmap for Change” (2013) Research and Funding Goal 8.2, online at http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf  p.23  

[2] “The Justice Metrics Problem” Background Paper (2017) Action Committee on Access to Justice in Civil and Family Matters, Vancouver BC, March 23 & 24, 2017, online at http://www.uvicace.com/resources/

[3] See “Summary of Justice Metrics Survey Responses” (2017) Action Committee on Access to Justice in Civil and Family Matters, Vancouver BC, March 23 & 24, 2017, online at http://www.uvicace.com/resources/

[4] Chaired by Chief Justice R. J. Bauman, “A2J BC” is BC’s response to the national call for action to make family and civil justice more accessible. Members include leaders from all major justice system organizations, and representatives from related sectors such as health and municipalities. 

[5] “The term ‘Triple Aim’ refers to the simultaneous pursuit of: 1. improving the population’s access to justice, 2. improving people’s experience of the justice system when attempting to resolve a legal problem, and 3. ensuring that the costs of providing access to justice are sustainable. It is essentially, at a high level, a cost-benefit approach to thinking about access to justice...” (from Measurement Working Group paper, “Access to Justice Measurement Framework” p.4)

[6] Link from the Access to Justice BC website at https://accesstojusticebc.ca/

[7] http://law.usask.ca/createjustice/

[8] The report is entitled Performance des systèmes de justice : Qu’est-ce qui compte? See online http://adaj.ca/accueil 

The Cost of Justice (Research)

This article originally appeared on Slaw.ca on April 20, 2017: http://www.slaw.ca/2017/04/20/the-cost-of-justice-research/.

By: Andrew Pilliar, PhD Candidate, Peter A Allard School of Law

At the end of Rules for a Flat World[1], Gillian Hadfield offers five steps to improve how legal systems operate.  In this post, I want to elaborate a little on the fourth of her recommendations: catalyze and fund research.

Hadfield describes the state of knowledge about legal infrastructure as “abysmal”.  She notes the lack of data about how legal systems work and about who has access to them.  She exhorts governments to collect more data about legal institutions and make this data available to researchers, making the case that more and better research is necessary to improve our legal systems.  In her words:

The dearth of public research dollars devoted to law is just the starting point.  More troubling is the fact that legal infrastructure is simply not on the research agenda in our universities.  Most fields of research, even those that reach out into the private and government sectors, depend on the presence of a vibrant body of university-based research – to generate a scholarly agenda, develop methodologies, conduct peer review, and supply young researchers to universities, industry, government, and non-profit research institutes alike.  Within universities, however, law schools have been almost exclusively oriented to professional education, and the research done within law faculties is largely organized around the internal issues generated by our existing bodies of law: how to interpret the decisions coming out of our courts, what rules we should have to achieve justice or policy goals, how effective those rules are in practice, and so on.[2]

In Canada, this call for more research on aspects of the legal system should be particularly familiar to those interested in access to justice. Over the past several years, a number of access to justice reports have noted this lack of research, and have called for more.  For example, the CBA’s Reaching Equal Justice report stated that “Canada is plagued by a paucity of access to justice research”[3], and noted that “we still know relatively little about what works to increase access to justice and how and why it does.”[4]  That same report noted that “[r]esearch on access to justice is not a priority in all Canadian law faculties.”[5]  In A Roadmap for Change, then-Justice Cromwell’s Action Committee on Access to Justice in Civil and Family Matters devoted two of its nine goals to issues of research and funding.[6]

How much access to justice research is funded in Canada?

The Social Sciences and Humanities Research Council of Canada (SSHRC) is one of the federal government’s major research granting bodies, and the one most directly responsible for funding research in law-related fields.  While there are other legal research funders in Canada (e.g. law foundations in various provinces and territories, the Legal Research Fund, etc.), nothing comes close to SSHRC in terms of total funding.  In 2015, according to data from SSHRC’s Open Government Expenditures File, the Council gave over $700 million in research grants and other indirect support (adjusted to 2017 dollars; see Figure 1; all data in this post contains information licenced under the Open Government Licence - Canada).  Of this, over $12 million went to fund research in which law was identified as the primary research discipline (see Figure 2).

CFCJ-cht1-600x363.jpg

Across all SSHRC-funded research and projects, approximately $800,000 (adjusted to 2017 dollars) went to access to justice-related research in 2015 (see Figure 3).  (These projects were identified by searching the dataset for any research including the words “access to” in the title or keywords.  These projects were examined to determine if they included topics that might be considered related to access to justice.  For example, “access to civil justice” and “access to rights” were included in the count; “access to the internet” was not.)  This was close to a high-water mark over the past 15 years.  It was also a high-water mark in terms of number of projects funded (see Table 1).

CFCJ-cht4-600x368.jpg

While this increase in recent years is to be applauded, it remains the case that a problem regularly described as one of the greatest problems facing the legal sector in Canada receives – on a good day – about one thirteenth of all law-related research funding.  In even more stark terms, that’s about one tenth of one percent of SSHRC’s total research and project budget.

Obviously, looking at funding levels is a crude way of assessing research.  But still, for such an apparently significant problem, this seems like a very low level of research support.  What do you think?

[1] See also http://www.slaw.ca/2016/11/07/everybody-wants-to-rule-the-world/.

[2] At 351.

[3] At 145.

[4] At 32.

[5] At 120.

[6] At 23.

Fixing Family Law

By: M. Jerry McHale, QC

When a national columnist recently described the described the Ontario family law system as a “mess” and “utterly broken,” she could have been writing about any province or territory in Canada.[1] While there are many aspects of our family law systems that are useful and effective, the overall picture is one of serious dysfunction and a status quo that is not sustainable. There are two broad problems driving this dysfunction.

The first is that family court processes are too complicated, too slow, and too expensive. This is partly a function of the rules that govern court procedures. They are extensive and intricate, and the forms and processes that they mandate take a very long time to work through. If you are represented by a lawyer, time is money, and the majority of people simply cannot afford to buy the amount of help needed. A common trajectory through the family courts is for a party to hire a lawyer, spend what money they have, part ways with their lawyer, and then either give up or try to navigate the litigation maze as a so-called “SRL” (self-represented litigant).

Those who give up either forego their legal rights altogether or compromize their needs on critically important issues such as the parenting of children, the payment of support or the division of family property. Those who try to take over their own litigation – nearly 60% of family cases in Ontario and BC involve SRLs – face almost impossible challenges. The court model is built on the assumption that both parties will be represented by lawyers, and SRLs are held to the same standard as the professional advocates. Not surprisingly, their legal outcomes compare poorly with those of represented parties. SRLs are climbing Everest without a Sherpa, and it is a stressful, disillusioning and frequently debilitating experience for them.

Those who continue with counsel continue, of course, to spend money, and they will incur additional cost if their lawyer is working with an unrepresented party on the other side.

This problem is occuring on a large scale. With a national divorce rate of around 35% (about 70,000 divorces per year), family law issues bring more people into contact with the justice system than any other kind of legal problem. Research tells us that when litigants are unable to resolve their legal problems, they often experience additional legal problems as a consequence, as well as health and personal problems. In this way, the costs of an ineffective justice system are visited not only on the individuals trying to use it but on the public purse as well.

The second problem driving family law dysfunction is even more fundamental – that is, most family cases should not be in the court system in the first place. A range of Canadian reports have explored the problems described above and have made multiple recommendations for reforming the system. The conclusions are very similar from one report to the next, and include the following:

 

·       The traditional model for resolving disputes is adversarial litigation. This model assumes that parties are necessarily opponents and that their disagreement is a contest to be either won or lost. The disgreement is framed in terms of competing rights and the object is for each party to try to defeat the other. Aside from being the slowest and most expensive method of dispute resolution available, this approach exacerbates conflict and is unnecessarily destructive of the realtionship between the parties. We do a tremendous disservice to parents – and to their children – when we default to this model. We legitimate and reinforce animosity when we set them up as adversaries and effectively tell them that their very common and ordinary human problems are cause for an expensive battle.

 

·       While the adversarial model will be necessary for a minority of cases, the great majority can be resolved safely, efficiently, and effectively in a collaborative dispute resolution process such as mediation. Mediation positions the parties as collaborators and frames their differences as a common problem to be jointly solved. Rather that focusing on opposing rights, mediators organize the discussion around the needs and interests of the parties, many of which they invariably share, especially when children are involved. Family mediation has been around long enough to prove itself affordable and effective. Mediated agreements are more durable than court orders and leave the parties with a better long term working relationship.

 

·       Relationship breakdown is not a legal event with some social consequences; it is a social phenomenon with some legal consequences. The legal issues cannot be parcelled out and effectively resolved apart from personal and social issues. Experience has shown that if legal questions around parenting, for example, are decided by a judge, while the underlying non-legal personal issues between the parties are left unresolved, new legal issues are almost certain to eventually spring up. The unresolved personal issues live on and serve as a fight looking for a place to happen.

 

In this context, the family law reports frequently recommend new funding and/or reallocation of existing funding from expensive court rooms and litigation, and into services for families at the front end of the system. These recommended services include personal and financial counselling, legal education and advice, information about children’s needs, and mediation. While most provinces have moved in this direction to some extent, no Canadian jurisdiction has yet moved far enough. A 2013 family law report, written by the Action Committee on Access to Justice in Civil and Family Matters (chaired by the Honourable Thomas Cromwell, recently retired from the Supreme Court of Canada), described this failure to implement these repeated recommendations as “the implementation gap” and wrote:

[We have] attempted to grapple with the gap between the strongly worded recommendations of past family reports [respecting mediation and front end services] and the failure of justice systems to fully implement them. We see that to a significant extent, the ideas needed to make the family law system work better have already been articulated and we ask, what is getting in the way of the changes that are widely seen as necessary?[2]

To repeat what was said here, we do know how to fix this, its just that we have not done it yet.

So bridging this implementation gap should be an imperative focus. If taken seriously, it would involve, in part, sufficient political will and government funding to implement the recommendations repeatedly made for front-end family services like counselling and mediation. The usual government response however is to plead poverty - “there is no more money.” In fact, there is lots of money, its just spent on other things.  Watch, for example, how much money will be found to spend on criminal law over the next two years trying to catch up with the Supreme Court’s recent direction that criminal matters must be resolved within 18 months.[3] Funding is an exact measure of political priority and the evidence, by this measure, is that family law is simply not a priority – notwithstanding considerable evidence that more extensive use of counselling and mediation would lower the per-case cost of divorce, both for litigants and for governments. Taxpayers have subsidized a combative litigation model for decades, wouldn’t it be preferable to subsidize cooperation and collaboration?

Last, but not least, closing the implementation gap – the discrepancy between what we know and what we actually do in family law – is also a matter of changing the underlying adversarial culture of the family justice system to make it less contentious and more truly collaborative. Academics, practitioners and critics have been writing about this change for nearly 40 years! Admittedly, it is no simple task - adversarial attitudes are deeply woven into the history, fabric and methods of the justice system. But the exorbitantfiscal and emotional costs of the long-dominant litigation model can no longer be supported. The system is unworkable and it is losing credibility. As such, it falls squarely and immediately to the law schools and to the judges, lawyers, legislators, administrators, and service providers who make up the family justice system to come to grips with the problem of adversarial family law culture change for once and for all. 

 

 

 

 

 

[1] Christie Blatchford, National Post, March 21, 2017, online at http://news.nationalpost.com/full-comment/christie-blatchford-getting-to-the-root-of-ontarios-family-law-mess

[2] Meaningful Change for Family Justice: Beyond Wise Words (April 2013) online at http://www.cfcj-fcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Family%20Law%20WG%20Meaningful%20Change%20April%202013.pdf

[3] R. v. Jordan 2016 SCC 27 establishes a presumptive ceiling of 18 months on the length of a criminal case in provincial courts, from the charge to the end of trial.

 

Using Research to Improve Access to Justice Around the World

By: Adrian Di Giovanni and Gloria Song - ACE Guest Entry Blog 

In many countries in the developing world, people have little access to justice. This has profound impacts on their lives. In informal settlements and inner cities, the lack of respect for basic legal rights often means that the urban poor live in squalid and cramped conditions, without clean water and sanitation. They’re also threatened by violent evictions. Across Africa, national and international investors also threaten to displace rural communities from traditional lands, depriving them of their livelihoods. Around the world, women continue to be excluded and discriminated against. Sexual violence rates are high, and the survivors have little recourse: families and communities shun them, public officials ignore or punish them for bringing complaints, and the cultural stigma is often reflected in inadequate legal protections.

At a global level, advocating for the importance of supporting access to justice has always been an uphill challenge. Despite promising declarations, the issue receives relatively low levels of support. From 2005 to 2013, just 1.8% of international donor aid went to the justice sector, in contrast to 7.5% for education and 11.7% for health. Furthermore, funds devoted to justice have tended to be concentrated on formal institutions like courts and training of judges, in a few countries.

In the face of those challenges, for a number of years, the International Development Research Centre (IDRC), an integral component of Canada’s development efforts, has worked to promote access to justice across the Global South. Our main approach has been to support local actors and institutions – civil society organizations, universities and think tanks – to develop greater knowledge of the legal challenges faced by poor and vulnerable groups in their countries, and to identify solutions to improve access to justice. Research projects often last two to three years, and in many cases involve testing of different legal interventions or strategies, often with direct participation of affected populations.

These research efforts operate on a few, interrelated levels:

1.      They target unjust laws and poor enforcement to improve access to justice at a systemic level

2.      They provide citizens with tools to raise awareness and assert rights, and

3.      They confront deeply entrenched social and cultural norms.

1: Systemic Change: Better Laws, Better Applied Laws

The first level targets poor access to justice at a systemic level. The goal is to apply collective solutions through improved application of laws and policies to overcome exclusion and injustice. For example, in Mukuru, one of Nairobi’s largest informal settlements (slum), research uncovered a “poverty penalty”. The Mukuru settlement largely sits on private land, and upwards of 90% of the houses are controlled by absentee owners and landlords. Because formal infrastructure is lacking, cartels have stepped in to provide basic services such as water but charge exorbitant rates – up to 172% more than what residents in formal housing estates pay. To improve the situation, IDRC’s local partners leveraged the housing rights guaranteed under the new Constitution to obtain a court order halting all evictions. With support from IDRC, an interdisciplinary team of Kenyan experts led by Akiba Mashinani Trust has then able to identify a series of strategies to support more secure tenure, equitable access to services and housing, and justice for residents of Nairobi’s informal settlements.

In the process, 8,000 community members received practical knowledge and training on how land tenure, governance, and justice structures work. Learning about advocacy, human rights, settlement dynamics and financial literacy helped improve community cohesion. Women in Mukuru also launched a sanitation campaign to demand better facilities and infrastructure.

The team’s efforts have also prompted the Nairobi County Government to pilot test upgrades in a Mukuru neighbourhood, and to work with the research team to declare a special planning area. A new project is now building on these results, enhancing respect for rights in this and Kenya’s other informal settlements.

2: Legal Empowerment: Raising Awareness and Asserting Rights

Promoting access to justice also means providing affected populations with the awareness and tools needed to assert their rights. Take, for instance, the phenomenon of large scale land acquisitions in Africa (also dubbed “land grabbing”). Governments in a number of regions around the world have promoted increased investments in agricultural lands, for a variety of development goals. These land deals have placed new pressures on already weak governance and justice systems, and have even resulted in dispossessing populations of their traditional lands and natural resources. Communities are often uninformed about investment deals, their rights or the decision-making process. Women, youth, those without formal land title, and the poorest community members are often the most vulnerable to such situations.

In response, IDRC’s local partners are working with communities across 10 countries in Africa to make land governance processes more accountable, just and equitable. In many cases, the tools and solutions provided offer alternatives to traditional lawyer-client legal services, while improving affected communities’ ability to participate in decision-making processes and assert their rights:

·         Using tools like community land management committees (Ghana), jeunes juristes (Cameroon), and community land charters (Senegal), projects are helping some communities overcome a widespread lack of awareness to participate in land governance processes.

·         Initial results from the testing of community land titles (Liberia, Uganda) and family land trees, a new tool for resolving land disputes (Uganda), suggest that these efforts are promoting community-level mechanisms to resolve disputes, improve social cohesion and negotiate fair and just deals.

·         Research (Uganda, Mozambique) is also seeking to understand which forms of land rights and governance processes – individual, family or community titling; formal versus informal dispute mechanisms – are most effective in ensuring respect for the land rights of women, who are most at risk in the context of inadequate or unimplemented laws.

At a systemic level, local researchers have also used emerging community-level lessons to help improve national and international laws and policies, for instance, through high level engagement in national reform efforts in Ghana, Kenya, Liberia and Senegal.

3: Confronting Norms: Bridging Laws with Larger Societal Realities

Addressing exclusion and poor access to justice also means looking beyond formal legal protections, and confronting deeply entrenched social and cultural norms – especially regarding sexual violence.

IDRC-supported research has found that current legal measures in a number of countries fail to protect women from sexual violence. Entrenched cultural stigmas around sexual violence mean that when women share their experiences of sexual violence, they are often shunned by their families, blamed by their communities, or ignored by police and other authorities. Nepal, for example, has a 35-day statute of limitations for bringing a rape complaint to the police. Notions of consent, how rape is defined, and other evidentiary and procedural requirements remain significant challenges. The laws are weak, and rarely applied. As a result, perpetrators of sexual violence enjoy impunity for their crimes.

In the face of such entrenched barriers, IDRC has supported South Asian academics, researchers, and activists who, over a number of years, have used research findings to successfully advocate for public responses, such as law reforms that expand the definition of rape in India and the adoption of standardized guidelines and protocols to deal with sexual violence victims in Bangladesh. Sexual violence survivors in Punjab now have access to a 24-four toll-free police hotline number; in Mumbai, 600 police officers have been trained to process information reports for sexual offences in a more victim-friendly manner; and in Gujarat, campaigns launched in 21 schools have raised awareness about accessing justice for child sexual abuse. Additional efforts are seeking to understand how to create spaces for women and men to confront openly the stigmas and norms that fuel violence against women and girls in the household and workplace.

How to build on these lessons?

These examples show the power of research and, along with other experiences around the world, offer hope. Larger challenges remain in understanding how to build on those positive changes and broaden access to justice on a universal scale.

Globally, there are relatively few efforts to track legal needs of populations and gauge the cost-effectiveness of justice responses. In June 2016, IDRC, the Open Society Justice Initiative and the Legal Education Foundation, UK published a first-of-its-kind study on how to scale up basic legal services in developing countries. The report focuses on administrative and civil justice, such as day-to-day disputes between neighbours or communities at the village level. The report provides a basic methodology to scale up access to legal services sustainably. It addresses how to calculate unit costs of services and their benefits and identifies innovative ways to broaden access, such as the use of technology and new financing mechanisms. The report also looks at what political conditions are needed to significantly increase access, out of a recognition that “scaling up” does not imply a linear process, and is highly contextual. Also in June, IDRC and the Open Society Justice Initiative hosted an international conference in Ottawa, to discuss the report’s findings. More than 80 experts and senior justice sector officials from 19 countries around the world were able to share stories, common challenges and lessons from their countries. The discussions confirmed common challenges in delivering on access to justice for all, and also the importance of linking country level efforts to global debates.

The moment for global debate on access to justice could not be better. For the first time, the international community has recognized a global, universal commitment to access to justice under the United Nations’ Sustainable Development Goals, thereby directing greater attention to this critical area. We need to seize this opportunity to push for access to justice for all, and improve the lives of people, both in Canada and abroad. At IDRC, we see evidence-building as a crucial part of delivering on that promise.

Adrian Di Giovanni is the Senior Program Specialist for the Law & Development portfolio at IDRC. Gloria Song is a former research award recipient and current employee for the Governance and Justice program at IDRC.

 

 

 

Justice, or How Many Angels Can Dance on the Head of a Pin?

By: Kathryn E Thomson, PhD Candidate (UVic Law)

When I first began to study access to justice, I embarked upon an exercise to deconstruct the phrase and break it into the components of “access” and “justice”.   I focused, first, on “justice” based on the notion that I needed to understand justice before examining what “access” to it should or could look like.  Those who have studied philosophy and legal theory may chuckle at the naivety of hoping to find a definition of justice as that question is only marginally easier to answer than how many angels can dance on the head of a pin.  Although this became clear to me quite quickly, I still find myself going back to my initial question from time-to-time.  What do we mean by justice?

It is important to examine the question of justice as it is central to creating the path to a functioning justice system.  Further, it is hard to articulate clearly the principles of access in the absence of some understanding of justice.   This, at least in part, is one reason that there is no common agreement on what is meant by “access to justice”. 

In an attempt to shed light on the meaning of justice, I asked friends their thoughts on it.  The responses were interesting as many could identify what justice was “not” but paused when trying to define what it “was”.   It seems we can recognize the absence of justice, particularly when the absence has a personal impact on us, but we struggle with defining its parameters and scope. 

Many have written at length about justice and a blog is not the forum to discuss those thoughts.  Most of this writing is academic and, to some, a dense read.  However, debate around the meaning of justice is not limited to the academy.  The recent Jian Ghomeshi trial resulted in a very public examination of justice.   Animated discussions could be heard everywhere and many of us expressed an opinion.   Those opinions often centred on the locus of justice.  For whom was justice to serve in this case? 

I will not attempt to comment on whether the acquittal was right or wrong in my view.   Instead, I will focus on the disparate opinions on justice that were expressed.   Those that took the view that justice was served by the acquittal of Ghomeshi pointed to the strict, letter of the law and the failure of the prosecutors to demonstrate guilt beyond a reasonable doubt.  On the side of those who felt that justice was served, the following comment was made: 

"I think the criminal justice system worked perfectly,' said Russell Silverstein, a Toronto-based criminal defence lawyer. "The trial judge did a masterful job of analyzing the evidence, identifying the weaknesses in the prosecution's case and coming to the right decision."[1]

Others took the view that justice was not served by the acquittal.  They argued that the true experience of victims of sexual assault was not properly considered; the women were not supported and should have been believed.  On the side of those who felt the system let down the complainants and justice was denied, CBC reported:

“Outraged shouts of ‘I believe survivors’ reverberated off the courthouse steps and in more than 10,000 posts online.”[2]

Some critics of the Ghomeshi case felt that “the trial, shines a spotlight on everything that’s wrong with a system designed to find justice in such cases.”[3]

“The associate dean of the faculty of law at the University of Calgary, Alice Woolley, says while the decision in the Ghomeshi trial was not surprising …“Saying it’s not surprising is not necessarily the same as saying that it was fair or just,” Woolley said.” [4]

If you work in the justice system, you will not be surprised by the notion that justice and fairness can, at times, lead to different results.  This, however, was not the expectation of many observers of the trial.  And these expressions of public sentiment of justice are interesting in the context of access to justice as they demonstrate two things:

  1. many expect the justice system to judge moral guilt or innocence (and we, of course, can dance on a pin defining “moral”);
  2.  the existence or otherwise of justice in any situation depends on your lens or position in relation to the issue.

This last point is important to keep in mind.  Your justice may not be my justice.  Perhaps, in fact, they never may be the same thing.   Thus, attempting to find a common definition or understanding of justice may be a mug’s game. 

So, where does this leave us if there is no objective meaning of justice?  While reading on existentialism, I came upon a comment that suggested to me a different approach to my search for a meaning: “disregard intellectual clutter, pay attention to things and let them reveal themselves to you.”[5]

For me, this comment offers freedom from the struggle to define the undefinable and to dance on a pin searching for an answer.  It allows me to accept justice as part of a process and justice as a subjective experience – an experience that may depend on your lens or position in relation to the issue.   Paying attention to public discourse on justice reveals things about justice. 

Further, this comment also allows me to step away from bifurcating “access to justice” and to conceive of it as a whole term.   The focus then returns, as it should, to the individual.  If justice is part of a process and a subjective experience, access to justice should create opportunity and capability for individuals to seek justice.  This requires understanding the opportunities individuals need to participate and working to create those opportunities.  In other words, access to justice is real opportunity to achieve justice on an individual’s own terms.   

This doesn’t answer the question of “what is justice”.  It should, however, give a little more scope to what “access to justice” can mean as a whole concept. 

 

[1] http://www.cbc.ca/news/canada/toronto/jian-ghomeshi-lawyers-judge-decision-1.3506613 (Ghomeshi trial judge praised by lawyers for “right decision”) posted March 25, 2016.

[2] http://www.cbc.ca/news/canada/toronto/jian-ghomeshi-judge-ruling-1.3504250 (Jian Ghomeshi trial’s not guilty decision triggers outrage, march to police headquarter”) posted March 24, 2016.

[3] http://www.cbc.ca/news/canada/toronto/jian-ghomeshi-judge-ruling-1.3504250 (Jian Ghomeshi trial’s not guilty decision triggers outrage, march to police headquarter”) posted March 24, 2016.

[4] http://www.cbc.ca/news/canada/toronto/ghomeshi-decision-legal-debate-1.3513011 posted March 30, 2016.

[5] Sarah Bakewell, At the Existentialist Café: Freedom, Being and Apricot Cocktails (Canada: Knopf, 2016) at 3.

Deregulation: The Changing Legal Services Landscape

By: M. Jerry McHale, QC

On the one hand, access reports are telling us that the status quo – inaccessible courts and unmet legal needs - is dangerous and unsustainable. On the other, more than two decades of reform efforts have produced little or no real improvement.  As durable as the status quo clearly is, cracks from the mounting pressure of the access to justice imperative are starting to show. One of the more interesting pressure points in this standoff between stasis and change involves initiatives to bring non-lawyers inside the legal profession’s regulatory framework.  This form of deregulation (a.k.a. “liberalization”) is driven by concerns over the chronic access gap as well as by a growing belief that deregulation can be commercially profitable.

On February 9th of this year the American Bar Association (ABA) House of Delegates took a large stride in the direction of the future by approving Resolution 105: Model Regulatory Objectives for the Provision of Legal Services. The resolution, which lays out principles intended to guide the regulation and credentialing of non-lawyer legal service providers, had been endorsed a few days earlier by the US Conference of Chief Justices.[1]  Specific objectives set out in the resolution refer to public protection, affordable access to justice, and ensuring competent and ethical legal services.[2]  Debate around the Resolution was contentious.  Those for the resolution argued the growing need for affordable access as well as the inevitability in the age of the internet - regardless of the ABA position - of non-lawyer legal service provision.[3] The possibility of non-lawyer ownership in law firms was not part of this discussion, but the ABA has since published an issues paper on this topic and asked for comments.[4] The final language of the resolution is that the ABA “urges each state’s highest court…to be guided by the…Objectives…when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.”

The resolution occurs in a context where some American states are already venturing into non-layer practice. Washington State has created a regime of “Limited License Legal Technicians” who are authorized to perform a range of legal functions. They can’t represent parties in court but they can consult, provide advice, complete forms, file documents, and help steer litigants through the family justice system (with additional practice areas to follow). The Washington State Bar Association website says, “Think of them like nurse practitioners, who can treat patients and prescribe medication like a doctor.”[5] They can work with lawyers or independently, and will be held to the practice and ethical standards of lawyers.

A report of the Professional Responsibility Committee of the New York City Bar, observes that non-lawyers are already playing a limited role, and could play a “crucial role” in responding to the justice gap. It recommended recognizing a role for “Courtroom Aides” and “Legal Technicians” while exploring “additional roles … including limited authorizations of non-lawyers to render certain types of legal advice, conduct financial negotiations, and advocate in court…”[6]

Of course, the relevance of this is that the forces driving acceptance of non-lawyer service providers in the USA are equally at work elsewhere. The 2014 Access to Justice Arrangements Report of the Australian Productivity Commission observed:

In Australia, non‑legal professionals have, for some time, been providing advice (and in some cases advocacy) in a range of areas including conveyancing, intellectual property, workplace relations, taxation and migration. The Commission considers that allowing non‑lawyers to perform some legal tasks has significant potential to improve accessibility and recommends that a taskforce be established to design and implement limited licences, with an initial focus on family law.[7]

In Canada, Ontario and BC are leading the way in creating an expanded niche for non-lawyers inside a modified regulatory framework.  Under the Ontario model, “paralegals” are licensed as a separate and distinct legal discipline, regulated by the Law Society. Taking a somewhat different approach, the Law Society in BC has created an expanded role for “designated paralegals” who may give legal advice, represent clients before a court or tribunal (as permitted by the court or tribunal), and represent clients at a family law mediation – all under the supervision of lawyers.  On another front, the BC Law Society and the Society of Notaries Public have signed an MOU to explore the possibility of merged regulatory operations with the Law Society as regulator. The terms of reference speak of preserving the Notaries’ separate identity and expanding their scope of practice.[8]

These developments engage important questions about the future of the profession’s monopoly over the delivery of legal services and the implications for legal professionalism. The Governor General of Canada, the Right Honourable David Johnston, touched on these questions in a speech to a national Canadian Bar Association conference in 2011.  He observed that in exchange for the profession’s privileges it assumes a responsibility to meet certain social needs.

 “We enjoy a monopoly to practise law. In return, we are duty bound to serve our clients competently, to improve justice and to continuously create the good. That’s the deal. What happens if we fail to meet our obligations under the social contract? Society will change the social contract, and redefine professionalism for us. Regulation and change will be forced upon us - quite possibly in forms which diminish or remove our self-regulatory privilege.”[9]

SCC Chief Justice Beverley McLachlin touched on similar themes in a 2011 speech, where she said, "If you're the only one who can provide a fundamental social need from which you benefit, I think it follows that you have to provide it … You have to find a way to provide it for everybody."[10] And, four years later - reflecting perhaps the progress of this issue in the intervening period - she observed that, “Everywhere, more and more, the profession is accepting that the old monopolies are fading and that the profession must embrace new ways of doing business… The question is not whether the rules governing the legal profession should be liberalized, but how.”[11]

How far will deregulation ultimately go? The answer is, however far it has to go to adequately serve the public good. There is a threshold level of access to justice that is simply indispensable to the maintenance of social and commercial order. To the extent that the legal profession fails to provide viable levels of access, society will change the rules and capitalism will generate the mechanisms to get legal needs met in other ways and by different entities.  

[1] See Resolution 9 (February 2016) “Recommending Consideration of ABA Model Regulatory Objectives for the Provision of Legal Services” https://richardzorza.files.wordpress.com/2016/02/ccj-2016-res-9.pdf

[2] The resolution is a product of the ABA Commission on the Future of Legal Services. A copy of the resolution is available online at http://www.americanbar.org/content/dam/aba/images/abanews/2016mymres/105.pdf

[3] ABA Journal, February 8, 2016 “ABA House approves model regulatory objectives for non-traditional legal services” online at http://www.abajournal.com/news/article/house_approves_proposed_model_regulatory_objectives_for_nontraditional_lega

[4] See ABA Journal, April 25, 2016, ”Should non-lawyers be allowed to own law firms? Online athttp://www.abajournal.com/mobile/article/should_nonlawyers_be_allowed_to_own_law_firms_aba_commission_revisits_the_i/

[5] See http://www.wsba.org/licensing-and-lawyer-conduct/limited-licenses/legal-technicians

[6] Narrowing the Justice Gap: Roles for Non-lawyer Practitioners, June 2013, online at http://www2.nycbar.org/pdf/report/uploads/20072450-RolesforNonlawyerPractitioners.pdf

[7] Overview at p. 21, online at http://www.pc.gov.au/inquiries/completed/access-justice/report

[8] See http://www.lawsociety.bc.ca/docs/home/blog/MOU-Notaries.pdf

[9] CBA Canadian Legal Conference - The Legal Profession in a Smart and Caring Nation: A Vision for 2017, online at  http://www.gg.ca/document.aspx?id=14195[10] Kirk Makin, Access to justice becoming a privilege of the rich, judge warns, The Globe and Mail, Feb. 10, 2011. Online athttp://www.theglobeandmail.com/news/national/access-to-justice-becoming-a-privilege-of-the-rich-judge-warns/article565873/

[11] The Legal Profession in the 21st Century, Remarks of the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada at the 2015 Canadian Bar Association meeting, Calgary, Alberta, online at http://www.nationalmagazine.ca/NationalMagazine/media/MediaLibrary/pdf/2015-08-mclachlin.pdf

What Data Makes Possible: “Social Investment” in the New Zealand Justice System

By: M. Jerry McHale, QC

On May 3, 2016 the New Zealand Minister of Justice announced “a new approach to justice sector investment.”[1] The “social investment” approach to criminal justice is built on a framework of prevention, addressing root causes of crime and evidence-based decision making. Social investment is a broad strategy aimed at getting better results out of government programs. It brings the following principles to program design and implementation:

  • heavy reliance on information technology to provide enhanced data about what the public needs, and about what services work and which don’t,

  • clear, measurable goals are defined for all programs,

  • programs and services are closely monitored and systematically measured – and are adjusted accordingly,   

  • focus on results - outcomes are measured and they inform subsequent investment decisions,

  • funding moves to follow the most effective services, whether they are provided by government or NGOs,

  • adopts a user-centered approach; it focuses on the most vulnerable and “[it] puts the needs of people who rely on public services at the centre of decisions on planning, programmes and resourcing…”

  • it works closely with the local community and across existing departmental service channels.[2]

 The New Zealand Justice Minister noted that the program’s emphasis on crime prevention is made possible by access to enhanced justice data. “This is a new piece of work to ensure we give Justice Sector agencies information based on the incredible data picture we now have, to better plan, predict and invest. It will also enable them to better co-ordinate with areas like health, education, and social services to try and prevent today’s vulnerable young people ever becoming offenders of the future.”[3]

The project relies on high-quality data analytics and modelling to enable decision-making based on hard information.  Enhanced data is available through the information assembly capacity of Statistic’s New Zealand’s Integrated Data Infrastructure (IDI). The IDI pools and analyses information from an array of sources including health, education, and welfare agencies as well as tax, employment, business, migration, economic and crime data. IDI expanded to include the justice sector in 2013.[4]

The announcement was also accompanied by an investment of $2 million in new funding. There is an explicit expectation that this approach will be both more efficient and more effective.

Very few justice systems have yet managed to get themselves into a position to capitalize on information technology. Most are very far from it.  In the Canadian provinces, very limited data is collected and what is available is often patchy and of no assistance in actually measuring how well justice systems are performing. From this perspective, it is encouraging, and potentially instructive, to see New Zealand’s experiment in using integrated data to prevent crime.

[1] Press Release: New Zealand Government, New approach to justice sector investment, 3 May 2016, online at http://www.scoop.co.nz/stories/PA1605/S00029/new-approach-to-justice-sector-investment.htm

[2] See The Treasury (New Zealand), Social Investment, Feb. 18, 2016, online at http://www.treasury.govt.nz/statesector/socialinvestment

[3] Supra, note 1

[4] Statistics New Zealand, Integrated Data Infrastructure, online at http://www.stats.govt.nz/browse_for_stats/snapshots-of-nz/integrated-data-infrastructure.aspx#about

Summary: Empirical study of civil justice systems: a look at the literature

By Michael Lines, MA MLS

Learning and Research Librarian

Diana M. Priestly Law Library, University of Victoria

Some time ago I was asked, as librarians are, to find the text of an older work of great significance. In this case, it was Roscoe Pound's famous 1936 address to the American Bar Association, The Causes of Popular Dissatisfaction with the Administration of Justice. I located the speech,[1] and noted another work by Pound that seemed on topic: A Bibliography of Procedural Reform Including Organization of the Courts[2]. When I looked at the titles that Pound had collected, I was struck by how familiar they seemed. Here is a selection from Pound that refers to the problem of delay in the courts:

  • Report of the Special Committee to Prevent Delay and Unnecessary Costs in Litigation.
  • Efficiency in the Administration of Justice.
  • The Struggle for the Simplification of Legal Procedure.
  • Preliminary Report on Efficiency in the Administration of Justice.
  • Committee to Consider the Simplification of New York Procedure: Report.
  • Experiment in Simplified Procedure.
  • Administration of Justice – Its Speeding and Cheapening.

Today, civil justice reform, including initiatives aimed at delay, remains a steady source of reports from government, bar associations, and other law-related groups.

  • Excessive Costs and Delay: Is There a Solution?
  • L'accélération du temps juridique
  • Part 24 of the Alberta Rules of Court: Delay in Prosecution of Actions
  • Caseflow Management: A Delay Reduction Tool 
  • The Ontario Law Reform Commission Report on Delay and Multiple Proceedings: A Critique
  • Executive Summary: Inventory of Delay Reduction Strategies and Techniques
  • National Time Standards for the Disposition of Civil Cases: A Discussion Paper.[3]

The 1917 titles read like they could have been produced last year, and the modern titles could sit inconspicuously in Pound's collection. This has unfortunate implications for the administration of justice. Is delay really such an intractable problem that 100 years of reform suggestions has not found a workable solution?

Further, there is an arresting similarity in the content of many works across the period: a scarcity of validly derived empirical data, and a corresponding lack of compelling evidence-based evaluations of the problem of delay.

I am not the first to admonish the legal community for this weakness: the tradition is long, and found often violent expression in Jeremy Bentham's work. He attributed the promotion of weak or useless reforms to the "sinister interests" of lawyers, and generally his opinion was that "[a]ll the industry of lawyers has been hitherto employed to prevent the grounds of law being canvassed."[4] Pound was more moderate:

It has been felt for some time that the entire separation of jurisprudence from the social sciences, the leaving of it to itself on the one hand and the conviction of its self-sufficiency on the other hand, was not merely unfortunate for the science of law on general considerations, in that it necessitated a narrow and partial view but was in large part to be charged with the backwardness of the law in meeting social ends, the tardiness of lawyers in admitting or even perceiving such ends, and the gulf between legal thought and popular thought on matters of social reform.[5]

More recently this comment was made: "[m]any lawyers and judges appear to believe that thinking like a lawyer means relying on law books, logic, speculation, argument, and - when it comes to addressing problems of societal reality - invoking intuition … [W]e are face to face with an old truth: lawyers are suspicious or fearful or both when they confront the methods and findings of the social sciences."[6]

Not that empirical studies are always required: there are situations where the facts are obvious and common sense is sufficient.  And not that valid evidence is readily available, either. Many categories of basic data that one assumes the courts generate in the regular course of business simply are not collected in Canada.[7]

Unless a renewed and sustained effort is made to support the empirical study of civil justice systems in Canada, our conceptions of our own legal system will remain distorted by ignorance, and we will continue to struggle to counter seemingly intractable problems such as delay.

[1]Roscoe Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice" (1936-1937) 20 Journal of the American Judicial Society 178 originally delivered at the 1906 annual meeting of the American Bar Association.

 

[2] Roscoe Pound, "A Bibliography of Procedural Reform Including Organization of the Courts" (1917) 11 Illinois Law Review 451.

[3] These materials were selected from results obtained by searching the Canadian Forum on Civil Justice's online database, the Civil Justice Clearinghouse, using the subject heading "Court Administration--Congestion and Delay" accessed Sept. 1, 2004. See the Canadian Forum on Civil Justice, Civil Justice Clearinghouse [www.cfcj-fcjc.org, select “Clearinghouse”]. 

[4] Book of Fallacies, in Jeremy Bentham, The Works of Jeremy Bentham (New York: Russell and Russell, 1962) vol. 11., v.2 at 479.

[5] Roscoe Pound, "The Scope and Purpose of Sociological Jurisprudence [part 3]" (1912) 25 Harvard Law Review 489.at 510.

[6] Maurice Rosenberg, "The Impact of Procedure-Impact Studies in the Administration of Justice" (1988) 51 Law and Contemporary Problems 13. at 13.

[7] A shortcoming recognised, in the specific context of self-represented litigants, in D. A. Rollie Thompson, "No Lawyer: Institutional Coping with the Self-Represented" (2002) 19 Canadian Family Law Quarterly 455.

 

Law Firms in a Harsh Legal Marketplace

By: M. Jerry McHale, QC

At the low and middle positions on the income scale the high cost of legal services results in people either abandoning claims or pursuing them unrepresented. Many in the wealthier sector of society who could afford representation are adopting strategies to avoid engagement with the formal legal system, and when they must engage they are insisting on greater efficiency and accountability in the delivery of legal services.  This overall dynamic is a serious threat to the traditional law firm model.

Law firms are struggling on a number of fronts. In addition to clients demanding more for less, new and effective forms of competition are arising and the underlying economy is generally weak.  How are law firms actually responding and what impact are these pressures actually having?  The reports discussed below are American, but they provide some interesting insights into these questions and they disclose trends that certainly have relevance for Canadian law firms.

The 2016 Report on the State of the Legal Market[1] (the “Georgetown report”) describes firms dealing with flat growth by nosing rates up and reining in forcefully on expenses, while being pushed hard by clients who “…have increasingly demanded more efficiency, predictability, and cost effectiveness in the delivery of the legal services they purchase.”  Firms have generally maintained profitability but, significantly, law firm share of the total legal market spend is in decline. Market share has been lost to online services and technology, to corporate clients keeping legal work in-house, and to a growing assortment of non-traditional service providers. These non-traditional providers reduce overhead and fees through virtual firm models, by utilizing lawyers working from home, and by offering the capacity to quickly engage and disengage temporary or part time legal help as required. Others are carving out a niche by satisfying a growing client demand for legal help that is integrated with business or management advice.[2] These services have made significant inroads into territory once held entirely by traditional firms.  

The Georgetown report’s specific findings with respect to demand for services and firm strategies are interesting:

  • The demand for services through 2015 was essentially flat, continuing a general pattern of the last 6 years,
  • This contrasts with the market prior to 2008 where annual growth of 4 - 6% was the norm,
  • By practice area, there was some growth in real estate and corporate law, with declines in litigation, labour, employment and bankruptcy,
  • Law firms raised their rates in 2015 by a “fairly modest” 2.7%.  This contrasts to annual rate increases up to 6% before 2008,
  • Firms are charging out at higher rates but collecting less. Client resistance to cost translates to a significant decline in collected billings. Billed and collected realization rates[3] hit an all-time low in October 2015,
  • Small rate increases combined with much tighter control over costs have resulted in “dramatically lower” expenses since 2008 and have generally allowed firms to maintain profitability,
  • A number of firms have lowered costs by “de-equitizing” - reducing the number of equity partners,
  • The future of this overall strategy is in question. There is little or no room left to cut expenses, demand is barely holding and client pressure for more savings is relentless. 

Another noteworthy observation emerging from the Georgetown report is that the U.S. is experiencing “growing segmentation within law firm market share.” Translation: some firms are managing a whole lot better than others in the competitive post-2008 environment and the gap between the most and the least productive is steadily widening. The evidence seems to be that firms that are developing comprehensive strategies to respond to client demands are outpacing firms that are less deliberate and merely reactive.

The tone of a 2015 survey of American law firms conducted by Altman Weil Inc.[4] (the “Altman Weil report”) is a little more encouraging. It reports signs of optimism in the firms, with some firms reporting increased revenue and some reporting - and others anticipating - increased demand. But, at the same time, it observes that the situation, especially in larger firms, is commonly one of too many partners and too little work. It also notes that non-traditional service providers are scooping an increasing volume of traditional firm business.

Like the Georgetown report it emphasises the need to adapt. It confirms a link between profitability and willingness to implement strategic changes - to lawyer staffing, efficiency of legal service delivery, and pricing approaches.  One might expect such findings to be powerful motivation for firms to reinvent themselves, but both reports describe problems here. The Altman Weil report says 44% of firms feel partner resistance is holding back change. This brings to mind Darwin’s finding that it is the most adaptable, not the biggest or strongest who survive. 

We do not have the benefit of reports like this in Canada, so it’s hard to know how accurately the American analysis reflects the Canadian situation.  That said, Canadian firms are being driven by nearly identical market forces and there are plenty of anecdotal reports suggesting lacklustre growth, an oversupply of lawyers and unhappy clients looking for lower cost alternatives.

It would be a mistake to hold out for external relief from these trends. Even if the economy improves, technological options will continue to proliferate, non-traditional service formats will continue to grow, clients are going to keep pushing and the legal market will continue to evolve at an accelerating rate - the Altman Weil report found that 72% of firm leaders believe the pace of change in the profession is still increasing. If relief is to be found, it will be generated internally through fundamental modifications to the way legal services are delivered.

If there is a silver lining to this cloud it is that this threat to law firm self-interest could provide the real impetus for change that the access to justice file has been lacking.   A principled argument for greater access to justice - based on serving the public good, fulfilling our professional duty and preserving the rule of law - has been on the table for years. But, firms won’t change as long as billing targets are being met. As Richard Susskind says, “It's hard to convince a room full of millionaires that they've got their business model wrong.”[5] Now, as revenue streams weaken, clients lose confidence and talk of deregulating the monopoly grows, pragmatic arguments about the survival of the profession are much more likely to be heard.  In fact, they are being heard - the spike in interest in the access issue over the last five years corresponds to the dawning, ground-level recognition that the profession is rapidly losing its customer base. For years there has been more talk than action about access. If the current array of pressures doesn’t change that, then nothing will.

 

[1] Georgetown Law, Center for the Study of the Legal Profession and Thomson Reuters Peer Monitor, online at https://peermonitor.thomsonreuters.com/wp-content/uploads/2016/01/2016_PM_GT_Final-Report.pdf

[2] For a full discussion of non-traditional service providers see: Joan C. Williams, Aaron Platt, and Jessica Lee, Disruptive Innovation: New Models of Legal Practice, Center for WorkLife Law, University of California, Hastings College of Law, 2015.

[3] Realization rates are the percentage of recorded time actually paid for by a client. 

[4] Thomas S. Clay and Eric A. Seeger, 2015 Law Firms In Transition, for Altman Weil, Inc. online at http://www.altmanweil.com/dir_docs/resource/1c789ef2-5cff-463a-863a-2248d23882a7_document.pdf

[5] Legal Rebels, January 28, 2016, online at http://www.abajournal.com/legalrebels/article/richard_susskind_qa

 

 

Legal Culture Change: The Sine Qua Non of Access Reform

By: M. Jerry McHale, QC

What explains the lack of progress in access reform over the last twenty years? There are a number of factors, but very high on the list is that efforts to enhance access to justice are not giving enough weight to the need to change legal culture. This blog looks at why culture is critical to access reform and what culture change would look like.

WHY LEGAL CULTURE IS CRITICAL

A number of reports stress that legal culture change is a critical ingredient to resolving the access to justice problem.  These reports suggest that we focus as much on changing attitudes and behaviour as on creating new programs and procedures.  One of the primary goals of the Action Committee’s Roadmap for Change Report, for example, is “to identify and promote a new way of thinking - a culture shift - to guide our approach to reform…to move away from old patterns and old approaches.”[1] The report adopts Lawrence M. Friedman’s assertion that “law reform is doomed to failure if it does not take legal culture into account.”

While many court administrators, lawyers and judges have already come to this conclusion on the basis of their own personal experience with reform initiatives, it is a conclusion that is also supported by broader evidence.

A recent report of the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System examined the progress of recent civil justice reform efforts in the USA. It concluded that, “As we have studied the rules and reviewed the comments and the results of the pilot projects, one thing has become very clear to us: rules reform without a change in culture will not be effective.”[2]

A report of the Department of Justice (Canada) found that the failure of initiatives designed to expedite criminal process had more to do with the varying attitudes and behaviours of the people that implemented them than with the particular design of the reforms.

As it became clear that structural reforms were having little effect on disposition times, reformers began to re-examine the assumption that judges, lawyers and other court staff were inert actors who performed whatever tasks they were assigned. Empirical studies revealed that delays varied enormously across courts with almost identical structures, caseloads and personnel levels. These studies established that delay was not an external phenomenon thrust on unwilling participants but a consequence of behavior of judges, counsel, accused, police and other participants in the justice system.[3]

The first point to be made then, is that culture change is essential because new programs or procedures built on the foundation of the old culture will not produce the necessary changes.  If the same old attitudes inform new procedures, we will get the same old outcomes.

The second point is that culture is durable and culture change is very difficult to realize.  Culture can, for example, successfully resist legislation.  An evaluation of Australia’s Family Law Reform Act 1995 asked the question, “Can changing legislation change legal culture, legal practice and community expectations?”[4]  The act aimed to change attitudes in a way that would make family disputes involving children less contentious. The proprietary, win/lose connotations of child “custody” language, for example, were eliminated in favour of a regime of joint post-separation sharing of parenting responsibilities.  While there is nuance to this topic that cannot be fully explored here, the evaluation found that the legislation had limited impact on attitudes, especially with lawyers (counsellors and mediators were more receptive). In too many respects, traditional values and approaches were applied to the new language, and not much changed.  As the saying goes, culture eats policy for breakfast.

WHAT DOES "LEGAL CULTURE CHANGE" ACTUALLY MEAN? 

Culture, generally, consists of the shared values, beliefs, assumptions, and behaviours of people who identify with a given group.  Culture is what everyone in that group knows to be true. It is the norms and attitudes that everyone who identifies with the culture takes for granted.  Culture informs the identity of individual members and creates a bond of shared understanding between members.  Culture is durable and always resists change, even though it must constantly evolve in order to survive.

When the access reports recommend changes to legal culture, what exactly do they mean?  One could begin to answer this question by saying that the culture change they argue for involves at least three general themes: modifying the adversarial paradigm, altering attitudes toward procedure and designing the justice system around the people who use it.

  1. The adversarial paradigm: while no access report argues for discarding the adversarial paradigm, virtually every report argues for recognizing its very real limitations, and for expanding, considerably, reliance on collaborative values and use of non-adversarial processes. And while non-adversarial dispute resolution processes have in fact carved out a niche in the justice system over the past 30 years, the justice system has come nowhere near exploiting their full potential. Mediation is still essentially seen as “alternative” and government funding for it is insignificant compared to the budget for adjudication. We still manage cases to trial, not to settlement. We continue to frame and manage every new case coming into the system as a rights contest to be determined at trial, even though we know that only a small fraction of disputes will actually resolve by judicial order.  The combative and confrontational behaviours associated with adversarial process still dominate law school education, public expectations and professional culture.  As Carrie Menkel-Meadow observes, adversarialism remains “so powerful a heuristic and organizing framework for our culture, that, much like a great whale, it seems to swallow up any effort to modify or transform it.”[5] Yet, modify it we must if we are to capitalize on what many reports characterize as the single most promising access reform                                                                                                                 
  2. Attitudes toward process: over time, procedural law has grown inexorably more and more complex.  Additional rules, while intended to enhance fairness, actually make litigation more complicated, costly and inaccessible.   This complexity is compounded by cultural and ethical norms that promote zealous advocacy and the practice of leaving no stone unturned.  Attempts to push back on process with broad assertions in court rules about the need for proportionality have had little real impact. Rosalie Abella, in referring to this “misplaced preoccupation with process” suggests that, “We have become so completely seduced by the notion…that process ensures justice, that we have come to believe that process is justice.”[6] Attempts to simplify and expedite process over the last 20 years have been too cautious.                      
  3. Putting clients at the center: the access reports consistently advise us to make the justice system conform to the people, not the people to the system. “Too often, we focus inward on how the system operates from the point of view of those who work in it. Court processes…typically make sense and work for lawyers, judges and court staff. They often do not make sense or do not work for litigants.”[7]  “Client-centering” is a much more radical and consequential idea than one might initially assume. Designing the system around its users would mean, for example, a substantial rebalancing and reallocation of court resources to provide much more front end information, advice, support and triage than we do now.  On another front, it means seeing the problem as the client experiences it, which is often not simply as a narrow question of legal rights and obligations, but as a problem embedded in and connected to a constellation of “non-legal” psychological, substantive and procedural needs.  The reports tell us that if we deal with legal problems in their social context the clients will be happier and their outcomes will be better.  This usually involves engaging knowledge, skills, resources, and expertise not traditionally associated with legal work.  But as we have seen - for example, in interest-based family mediation, collaborative practice, Justice Access Centres and problem-solving criminal courts - this approach has enormous promise for both enhancing access and delivering a better product. We just need a lot more of it.     

Canadian access reports have been calling for fundamental reform for more than twenty years. Too many reform initiatives have been cautious, small-scale, incremental and on the margins. The gravity and the intractability of the access problem demand an attitude of boldness combined with a willingness to experiment, to take risks and to make mistakes - even though these are not the traditional attitudes or approaches of legal culture. 

 [1] Action Committee, A Roadmap for Change, October 2013, p.1. Online at http://flsc.ca/wp-content/uploads/2014/10/ACCESSActionCommFinalReport2013.pdf

[2] Reforming Our Civil Justice System: A Report on Progress and Promise, April 2015, p.3, online at http://iaals.du.edu/sites/default/files/documents/publications/report_on_progress_and_promise.pdf

[3] Canada Department of Justice, Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System. Online at: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/esc-cde/ecc-epd/p5.html

[4] Rhoades, Graycar and Harrison, Interim Report, 1999, online at http://www.familycourt.gov.au/wps/wcm/connect/0cb661ac-3ba0-445a-8f16-b97e671ffe2a/fla.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=0cb661ac-3ba0-445a-8f16-b97e671ffe2a

[5] Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 Wm. & Mary L. Rev. 5 (1996), http://scholarship.law.wm.edu/wmlr/vol38/iss1/3 at 40. 

[6] Rosalie Abella, JA (as she then was) in a talk to the LSUC Professionalism Revisited” (Oct. 14, 1999) online at http://www.ontariocourts.ca/coa/en/ps/speeches/professionalism.htm  

[7] Supra, note 1 at p. 7. 

Access and Technology: Challenge the Assumptions

By: Kathryn E. Thomson, PhD Candidate (UVic Law)

Technological change is happening at an astonishing pace and offering advancements in many fields.  In the justice system, we often bemoan that technology is passing us by, but this isn’t entirely the story.  Technology is having an impact on the justice system and, increasingly, technological solutions are being looked at for the access problem.  It is no surprise that, in an environment where time and resources are scarce, the belief that a well written website provides benefit for some expands to the assumption that a website will be the answer for many.  And, if a website can provide information, why not a resolution?  The narrative can quickly snow-ball into the notion that modernization through technology removes impediments and places the knowledge and ability to navigate and personalize the process directly into the hands of the individual.  Put another way, technology leads to knowledge transfer which leads to justice access. 

If you have read some of my previous blogs you will know that I recommend caution and, that before moving to a technological solution, the impact of technology be critically examined.  I believe we need to have a better understanding of whether and how technology creates opportunity for those seeking to access justice before rushing to accept that it will.  

To provide some background to the question of whether and how technology creates opportunities, in January 2015, I conducted a pilot study with the Law Foundation funded legal advocates working in B.C.  Legal advocates provide free assistant to individuals seeking legal information, and access to legal resources and services.  Those who seek the assistance of legal advocates do so for a number of reasons including financial and the fact that lawyers generally do not provide assistance on matters such as benefit issues or residential tenancy issues.   

The advocates were asked to take a survey, comprising of 13 multiple-part questions, focusing on two general themes: the use of technology by advocates in their role as advocates, and the use of technology by their clients in dealing with a legal problem.  Of the roughly 72 Law Foundation legal advocates, 15 responded to the survey.   In this blog, I will focus on a few results observed relating to the use of technology by clients of advocates. 

The advocates were asked whether they refer their clients to online sites.  The good news is that a large percentage of advocates (93%) do refer their clients to online sites.  In part, this indicates confidence that good information is available to help their clients address legal problems.  

But the news is not all good.  Advocates also expressed concern about the use of online sites to deliver services and information to individuals in legal need.  The concerns ranged from the practical barriers that may exist for many including limited ability to operate a computer and/or limited access of some to a computer or the internet.  Those of us with ready access to and understanding of computers and the internet may overlook the reality that access to and knowledge of how to use these resources is not universal.   Even when access to computers and the internet is available, other barriers may interfere with access including literacy, language, and mental, physical or emotional health. 

Another important factor is legal literacy.  Information available online may be well written and comprehensive.   However, for those experiencing a legal problem, it can be a significant challenge to contextualize their personal experience as a legal problem.   Lawyers are trained to contextualize problems into a legal framework.  We are trained on how to read law, legislation and how to pick out the legally relevant from the legally non-relevant.  For someone in the midst of a legal, personal problem, access to information does not, on its own, create capacity to take that knowledge and put it into a legal framework.  

Given the barriers described by the advocates, it is not surprising that less than 50% of the advocates reported their clients “sometimes” look at legal information online before first meeting with them, 31% of advocates reported their clients “rarely” look at information before their first meeting, and 23% of advocates report that their clients “never” look at information before their first meeting. 

Even when clients looked at information before meeting with the advocate, the advocates reported that it was of limited assistance to the client.  In response to the question “did it help your client understand their problem better”, 56% reported that it “rarely” or “never” helped and 33% reported it “sometimes” helped.  In response to the question “did it help the client communicate the issues to you”, 44% of the advocates reported it “rarely” helped and 44% reported it “sometimes” helped.  In response to the question “did it help the client prepare for the meeting with the advocate”, 56% of advocates reported it “rarely” helped and 44% reported it “sometimes” helped.  These are not encouraging numbers in terms of the potential benefits of accessing online legal information prior to seeing an advocate.   

 The results suggest that, at least for the group of individuals who find their way to a legal advocate, the availability of legal sites and legal information does not necessarily mean that these individuals can move forward independently to find a resolution to their legal problem.  

 This doesn’t mean that technology cannot and does not assist us in addressing the access to justice problem.  However, it points to the need to challenge assumptions about technology, especially the easy narrative that technology always leads to better results. 

BC Chief Justice announces “Access to Justice BC”

By: M. Jerry McHale, QC

By news release, on March 15, 2016, the Chief Justice of British Columbia, the Honourable Robert Bauman, announced the formation of Access to Justice BC – a diverse group of justice system stakeholders committed to improving the family and civil justice system in British Columbia.

This initiative is BC’s response to a national call for action arising from the 2013 report, Access to Civil and Family Justice: A Roadmap for Change. That report concluded that one of the “core reasons” why progress on access to justice has been so elusive is the fact that the administration of justice in Canada is fragmented - “no one department or agency has sole responsibility for the delivery of justice in Canada.” This results in a lack of communication and coordination between the various sectors of the system which, in turn, frustrates reform efforts.  Thus, the report recommended the creation of provincial commissions or committees with the capacity to convene, coordinate and align all justice system stakeholders behind the common aim of access to justice reform.[1]

The news release states:

Access to Justice BC will be different from past BC justice reform initiatives. It will not produce yet another report about what should be done; rather, it seeks to improve the justice system by fostering action and approaching the issues from the users’ perspective.
 “For too long, we in the justice system have assumed that we know how the system should be run,” said Chief Justice Bauman, Chair of Access to Justice BC. “If we want the justice system to serve the people it is intended to serve, the time has come for us to look at the system from the perspective of the user, and to recognize the users of the system as our partners in justice reform.”
Access to Justice BC’s unique membership includes the leaders from all major justice system stakeholders, and representatives from related sectors such as health and municipalities. Other members of the group bring the perspectives of diverse users of the justice system, such as self-represented litigants, businesses, Aboriginal people, people with disabilities and immigrants.

This is an attempt to take a new and different approach to the access problem. Historically participation in access planning has been restricted to government, judges and lawyers.  Bringing together a broader and more diverse range of participants signals recognition of the importance of designing changes around the needs of those who use the system, not just those who run it.  

The group’s first priority is the family justice system. This responds to research showing that the greatest unmet legal need in BC is in family law. Work is underway to develop and implement a number of specific initiatives that were identified at an Access to Justice BC meeting held in Vancouver in early February.

Virtually every province and territory in Canada has created some form of committee to pursue enhanced access to justice. A meeting convened in Montreal earlier this month by the Action Committee on Access to Justice in Civil and Family Matters, brought together more than 40 representatives from these access committees to consider how the provinces and territories can best share ideas, exchange information and coordinate their work. 

The Access to Justice BC webpage is located at  http://accesstojusticebc.ca/

 

[1] Action Committee on Access to Justice in Civil and Family Matters, A Roadmap for Change,2013,  online at http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf

Online Dispute Resolution Process

By: Kathryn E. Thomson, PhD Candidate (UVic Law)

First posted on Slaw in April 2014. 

 

As a PhD student studying the use of knowledge technologies and access to justice strategies, I am following with interest the development of the Civil Resolution Tribunal (CRT) [Civil Resolution Tribunal Act, SBC 2012, c.25; ] in BC - an online dispute resolution process which will provide an alternative to the courts for small claims and strata property disputes.  I want to share some thoughts regarding online dispute resolution processes and to pose the possibly provocative question:  Are online dispute resolution processes necessarily access to justice strategies?

You might ask how an online process could not be an access to justice strategy.  The CRT, for example, is designed as an alternative to the court process.  It aims for a low cost (even no-cost), timely, simple, and self-directed dispute resolution mechanism.  Studies demonstrate cost (in particular), complexity (another important factor) and time (to a lesser extent than the other two) are significant factors that influence people’s decisions in civil justice matters.  So why question the impact of strategies, such as the CRT, on access to justice? 

My primary concern relates to the self-directed aspect of these processes.  For many of us the notion of sitting at our computer after work resolving a small debt matter seems quite plausible.  An online process relieves you of taking time during your work day to travel to the courthouse and wait for your case to be called.  Instead, you sit at your computer, navigate to the online dispute resolution site and negotiate a resolution.  This seems like access to justice.  However, this image is not one that may be shared by all.  For some, these processes could create new barriers not only because they will require access to a computer and the internet, but because they will require the individual to work through the process on her/his own.  These processes could become an isolating, disempowering and ultimately unsuccessful experience. 

There have been a number of process strategies (think rule reform) in Canada in the past few years.  While these strategies do have an impact, concerns of access to justice have not diminished and, arguably, have even increased of late.  Why is this?  One reason is that, while the CTC factors (cost, time, complexity) are important, they are not the only factors that influence an individual’s decision on whether to engage in a civil justice process.  More importantly, they are not necessarily the first factors that influence these decisions.  Studies demonstrate that an individual’s sense of disempowerment is a powerful and early factor that influences action or inaction.  Not surprisingly, it is the most vulnerable members of society who are least likely to take action on a justiciable dispute.  Canadian research indicates as many as 34% of law-related problems experienced by low to moderate income Canadians are abandoned or remain unresolved (Currie, A National Survey of the Civil Justice Programs of Low and Moderate Income Canadians, 2005).  Similar results have been found in studies in Britain and the United States. 

Online dispute resolution processes are solitary processes conducted between parties through computers.  Various studies (see Julie MacFarlane’s study of self-represented litigants, 2013) demonstrate that most individuals with a justiciable issue seek advice (sometimes legal, sometimes other) for dealing with the matter at some stage before and during proceedings.  A seminal study from Great Britain (Genn, Paths to Justice, 1999), found that 90% of individuals with a justiciable issue sought some form of advice at some time.   Other studies have noted the importance of in-person assistance.   For those who feel disempowered in the face of a justiciable issue or who are vulnerable, a self-directed process is unlikely to encourage their participation. 

Further, there is evidence that 42% of the working-age population in Canada score below the threshold needed by adults to participate fully in the knowledge economy (The Daily, Statistics Canada, January 2008).  These individuals are challenged to read, follow directions, and fill in forms.  This does not bode well for their success with an online dispute resolution process. 

Online dispute resolution processes have the potential to create convenient and lower cost spaces for people to negotiate and resolve problems.  In this sense, they may be successful.  But, should we expect a little more from access to justice strategies?  Should access to justice strategies be designed to challenge barriers that prevent individuals from participating in current dispute resolution mechanisms and to create real opportunities for those individuals (as well others) to seek resolution to a justiciable problem?  I believe the answer is yes.  We should watch with interest the BC process for what it can tell us about the success of online dispute resolution strategies to challenge access barriers.  

ACE Developing a Canadian Research Data Map

By: Kathryn E. Thomson, PhD Candidate (UVic Law)

All of us are accustomed to reading media reports on the results of the latest medical research and the forecast of anticipated improvements to health care that will follow.  We assume that decisions made in the health care profession are based on sound data from defensible research.  For without data, how would the medical profession develop the programs to improve the delivery of health care?

Access to data is central to the development of effective policy and programs in all social services and, in this regard, the justice system is no exception.  Yet, one of the difficulties facing all of us working in the field of access to justice is finding the data that helps us to understand a problem and gives us the material to develop real solutions. 

This problem is neither unique to Canada nor new.  Hazel Genn, in her UK study Paths to Justice, stated the problem as follows:

Discussion about access to justice and lack of access to justice proceeds largely in the absence of reliable quantitative data about the needs, interests and experiences of the community that the system is there to serve.[1]

Closer to home and more recently, Julie MacFarlane noted the lack of data in relation to self-represented litigants:

…policy is being made on the basis of very little empirical information from [self-represented litigants] about their needs and challenges in navigating court processes.[2]

In the CBA Equal Access to Justice Report, it was noted that:

Over the past two decades the justice system has become more adept at collecting baseline data, but the empirical basis for decision-making is still extremely limited compared to what is known about health and education. The justice system has a long way to go in terms of what information is collected, how it is collected and how available it is. Overall we have become better at counting inputs and outputs, although not all of this data is open or transparent and there is no coordination across agencies to collect information in a manner that permits comparison. (p. 11)

While there is no doubt that more research with consistent metrics is needed, there is A2J research underway in academic institutions and justice-related agencies across the country.  The problem is that the information on who is working on what issue is hard to find.  In the absence of information on what has been accomplished and what currently is being researched, we risk re-inventing the wheel or missing obvious research that needs to be tackled. 

The Access to Justice Centre for Excellence (ACE) is planning a National Research Colloquium in September to further the laying of a foundation for a national research strategy.  To prepare for this discussion, one of the first projects of ACE is the Canadian Access Research Data Map.  

The Data Map will provide a means for researchers, institutions, agencies and others to learn about the research activities and projects underway in Canada.   Our hope is that the Data Map project will facilitate coordination of research across institutions and jurisdictions.  Better communication on current research projects will assist in the development of a Canada-wide research agenda, the identification of potential data sources, the articulation of metrics, the sharing of issues and information, and the comparison of future results.

The Data Map will develop in three stages. 

  1. Current research: The first phase of the Canadian Access Research Data Map Project will bring together, in one accessible location, information on who is currently doing access to justice research in Canada (and planned research). This information will be collected under two headings:
  • Academic research: identifying individual researchers, their research institution, and a brief summary of their research plan. The Data Map will describe briefly the nature, objective, scope and timeframe of current access research projects, together with contact information.
  • Non-academic research: the Data Map will serve as a location to identify and collate access research currently being undertaken in Canada by governments (e.g. Ministries of Justice) and professional bodies (e.g. Canadian Bar Association).

The research categories will be broadly defined to include empirical and applied research, traditional theoretical or scholarly research, as well as policy and program research. All information, with necessary links, will ultimately be published on the ACE website.

2. Historical research: The second phase of the Data Map Project will involve collecting and collating historical access research. The depth and scale of this phase is still under consideration. We are currently exploring questions such as how much material this would involve and whether collecting it duplicates work already done elsewhere.

3. National research agenda: The third phase involves facilitating a conversation between Canadian access researchers in an effort to create a national research agenda.

If you are involved in a research project, please contact me, Kathryn Thomson, at lawace@uvic.ca.   I would be pleased to provide you with further information on our project and to include your work on the Data Map. 

 

[1] Hazel Genn, Paths to Justice: What People Do and Think About Going to Law (Portland, Ore: Hart Publishing, 1999) at 1.

[2] Julie Macfarlane, “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants” (Kingsville, Ontario: Self-Published Report, April 2013) at 15.

 

Access Reform and the Data Gap

By: M. Jerry McHale, QC

The business of law recognizes the fundamental importance of making decisions on the basis of full and accurate information.  Rules governing rights of discovery, duties of disclosure and the admissibility of evidence help us avoid the obvious peril of basing decisions on incomplete or erroneous facts.

Yet when it comes to reforming the business of law - designing access programs, reforming court procedures, determining justice policies or deciding on spending priorities - the justice system finds itself making consequential decisions based on incomplete, insufficient and often inaccurate information.  This happens because of the paucity of useful operational data – we lack the information that could tell us how the justice system actually works and how to most effectively improve it.  As a consequence, we fall back on anecdotal ‘evidence’ derived from individual observations, personal opinions, common understandings and received wisdom – or what one BC Report calls “anecdata.”[1]

The system operates far from the ideal of evidence-based management and information-based decision making. “We are” the Canadian Bar Association suggests, “unable to give definitive answers to even the most basic inquiries about barriers to access and we lack the capacity to pull together the fragmented data available to us into anything close to resembling a complete picture of access to justice in Canada.”[2]

Writers and commentators have lately observed that in spite of more than 20 years of analysis, recommendations and reform initiatives, the access to justice problem is only getting worse. Is it possible that the lack of objective, empirical insights into how the system operates could be at least part of the reason for this?  Do we in fact accurately understand the access problem? Can we properly feel confidence in our proposed solutions?

Information deficiencies in the administration of Canadian justice systems take several forms:

  • Insufficient data: there are relatively few data collection mechanisms in place and those that exist do not provide a great deal of useful information.  Recent research out of the Canadian Forum on Civil Justice, for example, attempted to determine what actually happens to the 98% of non-family claims in the BC Supreme Court that are commenced but do not go to trial.  Existing research suggests we can cannot assume these cases settle, so what happens to them? Unfortunately, the study that was intended to answer this question “confronted multiple problems in trying to collect data” and in the face of “incomplete and uninformative records” concluded that it simply could not locate data robust enough to support generalizable conclusions.[3]
  • Uncoordinated data: typically, the major players in the system - justice ministries and the different levels of court - each have their own separate data collection systems, and these systems are often not complimentary.  A few years ago, for example, when BC was looking to reduce the number of appearances in criminal cases, it discovered that the Ministry of Justice and the Provincial Court were working from different definitions of “appearance”, resulting in conflicting tallies of the average number of appearances per file.
  • Lack of performance measures: implicit in the data question is the issue of how data can be used to measure the efficiency or the effectiveness of the system. Historically, court data collectors have tended to record outputs; that is, they count things like judicial sitting hours, numbers of judicial conferences, numbers of hearings, orders made, time to trial, and so on. While such information is useful for day to day administration it gives little information and no guidance about outcomes. It provides no measure of how well the system is, or is not, working.  Does the system, for example, actually meet litigant’s needs? Does it solve people’s problems? Do litigants get value for money? The system’s ultimate accountability is not to hold a set number of trials or make a certain number of orders every year; it is to maintain social and commercial order through an effective and accessible system of justice. If this is our ultimate goal, we need to be able to measure our performance against it.
  • Lack of empirical research: these data shortfalls create an impediment to academic engagement. They frustrate scholarly inquiry into access and procedural issues, which in turn limits the production of much needed empirical research.

Numerous papers and reports have recognized the essential role that data and empirical research have to play in responding to the access to justice problem.  The UVic Access to Justice Centre for Excellence (“ACE”) plans to contribute to this response in a couple of different ways.

With support from the BC Law Foundation and the Legal Services Society, ACE will hold two invitational Research Colloquia in Victoria in 2016. The first will be held on May 13 and will focus on access to justice research needs, priorities, strengths and challenges within BC.  The second, in September, will go a step further to explore the possibility of a coordinated access research strategy and framework that is national in scope.

The results of the colloquia will be disseminated and will hopefully provide the foundation for a broader conversation about access research involving all justice system stakeholders.

More immediately, ACE will implement its Access Research Data Map project. ACE will soon be canvassing researchers from across Canada to collect information about access research activities now underway, or planned, in Canada.   This project is intended to provide a means for researchers, institutions and agencies to begin to share and coordinate research information. Future blogs on this site will keep readers apprised of progress on this and other ACE research initiatives.

 

 

[1] See D. Geoffrey Cowper, QC,  A Criminal Justice System for the 21st Century (2012) at p. 88, online at http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-reform-initiatives/cowperfinalreport.pdf

[2] Canadian Bar Association, Access to Justice Metrics: A Discussion Paper, April 2013, at p. 1

[3] Focus Consultants for CFCJ, Civil Non-Family Cases Filed in the Supreme Court of BC Research Results and Lessons Learned (2015) online at http://www.cfcj-fcjc.org/sites/default/files/Attrition%20Study%20Final%20Report.pdf

 

What Does “Access to Justice” Mean?

By: M. Jerry McHale, QC

There is a broad consensus that access to justice is a good thing and that we need more of it, but there may be less consensus, or at least less clarity, over what this term actually means.  The call for “access to justice” invokes notions of equality, equity, fairness, universality and justice. Such broad, aspirational qualities are easy to rally behind but, as Australian Justice Ronald Sackville has observed, “Like other catchphrases, such as ‘fairness’ and ‘accountability’ (if not ‘democracy’ itself), the expression ‘access to justice’ survives in political and legal discourse because it is capable of meaning different things to different people.”[1]

There are two primary streams of thought about the meaning of access to justice. The first emphasises the “access” half of the equation and focuses on the availability of resources to help individuals resolve disputes. The second steam emphasises “justice” and argues that the justice we seek consists of more than exposure to dispute resolution services. 

ACCESS TO DISPUTE RESOLUTION

The understanding of what access to justice means within the first stream has evolved over time.  In the 1960s it was basically taken to mean access to litigation. The focus was a narrow one. The thrust of reform efforts was to get more access - mostly for poor people - to lawyers, judges and the courts.

Refinements began to occur within this understanding in the 1970s. The emphasis shifted from getting cases before the courts to making the court system work better. Reform efforts focused on redesigning procedures and creating programs to handle a higher volume of cases more efficiently.  The target population expanded to include the middle class and to cover a broad range of civil issues. Typical innovations included procedural rules to expedite hearings, small claims courts, class actions, contingency fees, and regulatory schemes that diverted entire classes of claims (workers compensation, human rights, landlord and tenant, etc.) out of the courts and into quasi-judicial tribunals. Consumer protection offices, ombudspersons and no-fault insurance schemes took the notion of court avoidance a little further.

Access innovations in the 1980’s evolved to include managerial reforms (case management and case-flow management systems), judicial specialization and plain language. The idea of “alternative” methods of dispute resolution started to take hold in this decade. Mediation and new models of negotiation emphasised out-of-court dispute resolution and promoted non-adversarial values like conflict management, collaboration and consensus. Around the same time, the access discussion also expanded to include ideas like legal literacy and public legal education, dispute prevention and self-help. 

These visions have been cumulative and have brought us to our current understanding of access as a project that employs a diverse range of strategies, programs and processes in the service of resolving disputes. Probably the most significant shift in thinking is that the courts no longer sit at the gravitational center of the justice system. The search for access now extends well outside and beyond the formal legal system to include equal access to any legal or non-legal information, resource, service or process (formal or informal) that contributes to the mitigation or resolution of disputes.

ACCESS TO JUSTICE

The second stream of thought argues that access to justice is a wider concept than this in at least two respects. First, it should involve enhancing not only people’s access to dispute resolution processes, but also access to, and the capacity to participate meaningfully in, the processes by which laws and legal procedures are made. The calls made since 2013 by both the national Action Committee and the Canadian Bar Association for greater public engagement and wider stakeholder participation in efforts to reform access reflect this richer understanding of what access to justice should mean.

Second, this expanded conception of access insists that we take into account the structural inequities that exist in our system and that we see our justice institutions as responsible to do more than simply expose people to dispute resolution processes. Rather, it says we need to see law’s mandate in a larger social context – a context that includes stark inequalities such as the over-representation of First Nations in the criminal justice and child welfare systems and the formidable barriers confronted by the poor and marginalized in seeking justice. Such realities must lead us to a deeper and more ambitious meaning of access to justice as “the alleviation (if not the elimination) of injustice.”[2] Rod Macdonald calls for this when he proposes a “reorientation” in our thinking to accommodate the fact that “…disparities in social power, and not procedural glitches in the processes of civil litigation, are the root of injustice.”[3]  

Given the great difficulty we are having in achieving access even by the narrower definition, it is daunting to consider augmenting the challenge by adding to it the task of broader social equality. To the extent, however, that we wish to truly be, and remain, a democratic nation founded on the rule of law, we have no choice.


[1] Justice Ronald Sackville, Access to Justice: Assumptions and Reality Checks (2002) online at http://www.austlii.edu.au/au/journals/FedJSchol/2002/12.html

[2] See Justice Ronald Sackville, in Court Of Conscience, Access To Justice • Issue 8, 2014, UNSW Law Society, p. 5

[3] Roderick Macdonald, “Justice Is a Noun, But Access Isn’t a Verb” in “Expanding Horizons: Rethinking Access to Justice in Canada”, online: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/op00_2-po00_2/b4.html#sec15

Introducing the Access to Justice Centre for Excellence

By: M. Jerry McHale, QC

The University of Victoria Faculty of Law is pleased to announce that it is establishing the Access to Justice Centre for Excellence (the “Centre”) operating out of the UVic Law School.

The Centre is being established in response to the growing concern within the justice community with the problem of diminishing access to justice. We believe that there is a unique role that the academy can and should play in working toward a resolution of this problem.

The idea for the Centre arose out of the Canadian Bar Association’s Equal Justice report of December, 2013, which proposed that by 2030 three Canadian law schools establish centres of excellence for access to justice research.

MANDATE

The UVic Centre will seek to provide provincial and national leadership in research and teaching related to access to justice.  The Centre will: 

  • undertake applied research and practical scholarship on access to justice issues,
  • through curriculum and program development, enhance student understanding, skills and abilities respecting access issues,
  • forge external working relationships with governmental, non-governmental and professional bodies working on the access issue,
  • as a priority, but not an exclusive focus, pursue this mandate with an emphasis on social justice, community engagement and the unmet legal needs of marginalized populations.

Given the growing severity of the access problem and the very costly and destructive consequences that flow from unmet legal need in our communities, the Centre will seek to support a justice reform culture that is bold, innovative and open to experimentation. 

The Centre will focus on activities that UVic is uniquely qualified to undertake. These activities will include academic and applied research as well as enhanced student learning and experience.

INITIAL ACTIVITIES

The Centre will begin work immediately to respond to the many calls that have been made for creation of a coordinated national access to justice research agenda. The aforementioned CBA Equal Justice report points to problems that the UVic Centre hopes to begin addressing:

"Canada is plagued by a paucity of access to justice research. This gap exists in tandem with the poor state of justice data collection and evidence. The lack of high quality publicly available data detracts from scholarship and the lack of scholarship contributes to the poor state of data, since empirical research would help determine which types of data should be collected. Other barriers to research include: fragmentation of access to justice research across disciplines and under-development of interdisciplinary studies; lack of integration of recent methodological developments such as internet-based tools; and lack of connection between academics and practitioners … A national research strategy is needed, not in the sense of a centralized ‘master plan’ but rather to ensure coordination, avoid duplication and enable researchers to build on each other’s efforts."

The UVic Centre is initiating two projects that respond to this call for a national strategy. The first is our Canadian Researcher Data Map Project.  The first phase of this initiative will collate, in one accessible online location, information on who is currently doing what access to justice research in Canada.  This will include research that is academic and non-academic, empirical and applied. More details are available here.

The second project is to convene a Research Colloquium. The aim of the Colloquium is to bring together academic and policy researchers to explore research needs and priorities, and to support the development of a coordinated Canadian access to justice research agenda. The Colloquium will proceed in two stages:

  • in May 2016, the first meeting will involve provincial researchers and BC access to justice leaders in a one day discussion to explore and better articulate short-term and long-term research needs and goals. This meeting will also serve to consult and receive advice on the role the Centre can play in the province and to lay a foundation for future collaboration and partnership on research.
  • in the fall of 2016, at the University of Victoria, a national one or two day research colloquium will be held with justice researchers and policy makers from across Canada. The purpose of this meeting will be to begin work on a national research strategy, and to create linkages and build relationships to facilitate future collaboration and partnership on data collection and access to justice research. 

In pursuing its aims, the UVic Centre intends to work closely and collaboratively with a range of partners across Canada. The work to assemble a partnership network is just beginning, but linkages have already been established with the Canadian Forum on Civil Justice, the national Action Committee on Access to Justice in Civil and Family Matters, the British Columbia Access to Justice Committee, the BC Legal Services Society and the Law Foundation of British Columbia.