Unattainable goal?

CBA report details the ‘abysmal state of access to justice in Canada’

Last month the Canadian Bar Association’s Access to Justice Committee released a summary of the report Reaching Equal Justice: An Invitation to Envision and to Act.

It’s a sobering document discussing the “abysmal state of access to justice in Canada” and the “pain caused by inadequate access and the huge discrepancies between the promise of justice and the lived reality of barriers and impediments.” While “inaccessible justice costs us all,” the “harshest consequences” fall on the “poorest people.”

The report concludes that the “civil justice system is badly broken.”

None of this is news. We see it in the huge numbers of self-represented litigants in every court. We’ve heard similar refrains for the past 20 years with senior lawyers and judges lamenting the sad state of access to justice. Yet the situation deteriorates year after year.

The CBA report tells us that “tinkering is insufficient.” Yet, that’s precisely what the report contemplates.

Here are some of the plans to “building a bridge to equal justice”:

n Integrate law as a life skills course in schools.

n Create legal capabilities training modules to cover life transitions (“newcomers to Canada, older adults at retirement, young adults entering the workforce.”

n Create legal health checklists to “create awareness of common legal problems and suggest how to address them.”

n Use technology to improve access to justice, facilitate justice and reinvent the delivery of legal services.

n Reform courts to provide “active case management, judicial dispute resolution, specialization, court simplification and active adjudication models.”

Not much new here.

Other proposals relate to reforms on how legal services are provided, the provision of legal expense insurance, more funding for publicly funded legal aid, integrating access to justice issues into law school education, and so on.

These initiatives, worthy as they are, will never solve the problem unless there is a massive infusion of funds in legal aid — something that will never happen.

The real access-to-justice problem lies in the lack of access to competent legal services at reasonable cost. The chief problem lies in the affordability of legal services. But the CBA proposals seem to have little to do with lowering the price of legal services.

The keys to better access to justice lie in reducing the role of lawyers and at the same time reducing their fees.

If we want to reduce fees we should be discussing how to reduce the monopoly enjoyed by lawyers. We need to consider expanding the role of non-lawyers, including paralegals, into areas in which they have been forbidden to practice. We need to look at the adversarial system to determine which disputes can be effectively resolved without lawyers.

For example, is it really necessary that we require lawyers to represent clients in most employment law cases? Could an enhanced labour relations board not resolve most employment law disputes without the input of lawyers? These are the sort of questions we need to ask.

We need to take a look at each area of the law to determine how it can be reformed with the goal of providing better access to justice and reducing the role of lawyers.

I’d start with the personal injury area of law. Why are there so many personal injury lawsuits? Why do so many accident victims require a lawyer to assist with the collection of no-fault accident benefits? How can we modify the law so that insurance companies are forced to provide the benefits they are contractually required to provide without forcing accident victims to retain a lawyer?

What else can we do to drive down legal fees?

Do we need more law schools or higher enrollment in law schools to generate more lawyers?

Should law societies have better control over the fees charged by lawyers?

I didn’t see any discussion of these issues in the CBA Report.

If there were any easy fixes to the access-to-justice problem we’d have fixed it by now. But there are no easy fixes, and any long-term solution will require sacrifices to be made by lawyers.

After all, the legal system is supposed to benefit society, not just lawyers and judges.

_{Source: By Alan Shanoff   ,Toronto Sun First posted: Saturday, September 07, 2013 06:34 PM EDT}