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.