Looking for the Access to
Justice Research Network
(AJRN)? Click here

Is “Business” a Dirty Word in Law?

I remember being told at law school (not that long ago) that lawyers were more than “mere” legal plumbers.  The implication was that law was a profession (i.e. good, reputable), not a vocation (i.e. bad, dirty).  And indeed, as Professor Wesley Pue has noted, there is a long history within the legal profession of praising high-minded professionalism while denigrating the crass commercialism of business.[1]

I began to question how lawyers think about the business side of what they do while doing research for my LLM.  My research included a case study of Pivot Legal LLP, a full-service law firm in Vancouver’s Downtown Eastside neighbourhood, which had the dual goals of providing income for the well-known legal advocacy Pivot Legal Society and delivering affordable legal services within the community.  During my interviews, I heard many comments to the effect of “law is a business”.  The implication was clear: without a viable business model, efforts to provide accessible legal services will be short-lived.

The choice between profession and business is a false dichotomy.  Lawyers who are interested in their profession should also be interested in how law operates as a business.  Work settings have important effects on people, including decisions to remain in legal practice or not.[2]  My own work has suggested that dissatisfaction with current business structures could encourage lawyers to take steps to do things differently in order to improve access to justice.

Taking “the business of law” seriously has important implications for access to justice.  The recently-released CBA report, Reaching Equal Justice: An Invitation to Envision and Act, makes a strong case for lawyers and other legal service providers to innovate to deliver more accessible services.  But how far will this call to embrace innovation and entrepreneurialism be heard?

The profession/business divide is a concept that is often embedded in lawyers’ conceptions of their role.  Access to justice research has historically not focussed on how business and practice decisions affect access to justice.  Notwithstanding recent discussion of “unbundled” legal services, there has been relatively little systematic analysis of how the business of law affects access to civil justice.[3] This must change.  In the world of corporate affairs, there has been an increase in awareness and discussion of socially beneficial businesses in recent years, including structures such as “low profit limited liability companies”, “benefit corporations”, and “community interest companies”.[4] It is possible to imagine analogous practice organizations in law that aim to improve access to legal services.

The CBA’s Legal Futures Initiative may be a good place to start this conversation.  But in order for people to engage in that discussion, they will need to engage with the reality that law is both a profession and a business.  Increasing lawyers’ understanding of the market for legal services may help elucidate reasons why legal services are as inaccessible as they are.  It may also help identify ways in which lawyers – and others – may provide legal services in ways that allow those who need but currently do not access legal services to do so to a greater degree.

Is it possible to provide affordable legal services with current regulatory and funding models?  What are the barriers to more practice innovations to improve access?  Should law schools play a role in introducing future lawyers to the business of law?

These are questions worth pursuing.

 

Andrew Pilliar is PhD student at the UBC Faculty of Law

 


 

The National Self-Represented Litigants Project

“I have no choice – I am unrepresented not self represented. Its not that I think I can do this better than a lawyer, I have no choice. I don’t have $350 an hour to pay a lawyer.”

“I was scared out of my mind. But I had a hard choice – either learning to do this for myself, or letting my daughter go, forever.”

The two quotes above are typical examples of what I heard from respondents in my study on self-represented litigants (SRL’s) in family and civil court. They dispel the myth that SRL’s have illusions of grandeur that they can do as good a job as a lawyer. In fact, the vast majority are desperate people with no more funds to pay for counsel (53% began with a lawyer but ran out of money to pay them).

The rise in the number of people representing themselves and the enormous frustration expressed by virtually all of them requires our immediate attention. The erosion of faith in the justice system is plain in the research data (which you can read about in the study’s Final Report).

The Final Recommendations of the study pull together the research data and the significant work accomplished by the working groups at the Dialogue Event in May. They are presented as 10 Action Steps for responding to the SRL phenomenon.

Windsor Law has agreed to house and to fund the ongoing work of what are now launching as the National Self-Represented Litigants Project (NSRLP). We are grateful to Dean Camille Cameron and the faculty at the “Access to Justice Law School” for their support, as well as our wonderful Advisory Board (which now includes CFCJ’s own Trevor Farrow).

Over the summer, we have responded to innumerable enquiries from both SRL’s and justice system professionals to develop three major areas of activity for the NSRLP. These are:

  • Research;
  • Resources; and
  • Dialogue & Collaboration.

Among other projects, we will be:

  • producing a bi-monthly newsletter for everyone affected by the SRL phenomenon;
  • building resources for both SRL’s and researchers/ justice system professionals;
  • continuing to collect SRL stories through a self-completed survey on our website;
  • working on new initiatives to assist SRL’s in courthouses, convening discussions about change among professional leaders; and
  • acting as a Speaker’s Bureau for SRL’s (placing SRL’s in policy working groups, as testers for new online materials, presenting their experiences at professional conferences and in law school classes).

We are also working on a plan in partnership with IAALS to replicate the original research study in three US states.

For further information on this project please contact Julie Macfarlane (julie.macfarlane@uwindsor.ca) or Sue Rice, the Project Manager (suerice@uwindsor.ca).

Reaching Equal Justice: An Invitation to Envision and Act

The post was originally published on the Oxford Human Rights Hub blog.

The year is 2030 and all people living in Canada have equal access to justice regardless of means, capacity or social situation.  The justice system is designed around people’s needs taking into consideration differences in the legal needs of different individuals and groups and providing timely and personalized assistance, responding holistically to the legal and non-legal dimensions of problems and ensuring meaningful and effective assistance to navigate a range of paths to justice to achieve lasting and just outcomes.  People are empowered to manage their own legal matters with an emphasis on prevention where feasible and to participate in overseeing the justice system as a result they feel a strong connection to it and as a result there is a strong sense of public ownership.  Practices are evidence-based and the justice system is a nurturing environment for innovation and consists of learning organizations committed to continual improvement.

This ‘ambitious but possible’ vision of equal justice is at the heart of the Canadian Bar Association’s Access to Justice Committee’s recent report, Reaching Equal Justice: An Invitation to Envision and Act.  The Committee starts from the premise that 100% access is the only defensible goal while recognizing the current abysmal situation, which in fact reinforces rather than mitigates inequalities.   Rejecting piecemeal reform, the report sets out 31 concrete targets organized around six major themes. Three themes delineate the substance of reform (facilitating everyday justice, transforming formal justice, reinventing the delivery of legal services) and three set out the required support structure (building public engagement and participation, building collaboration and effective leadership and building the capacity for innovation.  While the targets are framed as long-term goals to be achieved by 2020, 2025 or 2030, the report also contains a range of indicative actions to be initiated today and interim goals to serve as markers of progress in achieving the targets.

The targets include:

By 2020:

  • Individual and systemic legal health checks are a routine feature of the justice system.
  • Each provincial and territorial government has established effective triage systems guiding people along the appropriate paths to justice.
  • National benchmarks for legal aid coverage, eligibility and quality of legal services are in place with a commitment and plan for their progressive realization across Canada.
  • Effective, ongoing collaborative structures with effective leadership are well-established at the national, provincial, territorial and local levels, including through the appointment of access to justice commissioners.
  • The first annual access to justice metrics report is released; by 2030, this report is comprehensive.

By 2025:

  • Courts are re-centred within the civil justice system and resourced to provide tailored public dispute resolution services with effective internal and external triage and referral processes.
  • A wide range of alternative organizational models for the provision of legal services exists to meet the legal needs of low and moderate income Canadians, including those living outside major urban centres.
  • The justice system does not rely on volunteer legal services to meet people’s essential legal needs.
  • Justice system stakeholders have substantially increased their innovation capacities by committing 10% of time and budgets to research and development.

By 2030:

  • 5 million Canadians have received legal capabilities training.
  • Substantial experiential learning experience is a requirement for all law students.

Reaching Equal Justice is an invitation to the legal profession and all justice system stakeholders, including the public, to seize the moment of opportunity created by a broad Canadian consensus on the need for significant change and an evolving consensus on the broad directions for reform.   In a riff on the idea of thinking globally, acting locally, the Committee calls on each of us to think systemically, act locally:  to keep the vision of equal justice in mind, integrating this change in perspective into every day approaches, finding small ways to both meet the needs of clients/justice system users while contributing to systemic reforms.  It is by thinking systemically and acting locally that we can create real space for justice innovation.

Rather than simply reading this report, the Committee asks the reader to engage with it. It calls on everyone to consider the targets proposed and the change-oriented ideas presented and to ask: what can I do, either myself or working with others, to contribute to equal access to justice? The call to action is based on the understanding that every contact between an individual and the civil justice system is an opportunity for either disempowerment or empowerment, a moment to reinforce inequality and social exclusion or to create equality and inclusion. The challenge is clear: we understand the problems, we know what to do, now we have to “just(ice) do it”!

For more information visit: http://www.cba.org/cba/equaljustice/main/default.aspx

Climbing the HiiL of innovation: A book review of Innovating Justice: Developing New Ways to Bring Fairness Between People

Innovating Justice by Sam Muller and the team at The Hague Institute for the Internationalization of Law (HiiL) is a very timely and valuable source of ideas about developing and implementing innovations in the justice field. Based on their pioneering work at the Justice Innovation Lab in The Hague, the authors provide food for thought for anyone contemplating entering the promising but often challenging waters of innovation. Let me share a few of their insights:

  • Innovation is not a simple, linear process. Innovation is an evidence-based and risk-taking activity. Innovators and, especially, the funders of innovations have to be prepared to learn from mistakes and use them as stepping-stones.
  • Innovation is rarely the product of a brilliant flash of inspiration. It involves sustained hard work to develop ideas, engage stakeholders and implement and test innovations. Inspiration, however, is the essential ingredient that allows you to sustain the work it takes to innovate.
  • Innovation requires structure. The HiiL has developed a Justice Innovation Lab with a brainstorming, scrum-like environment that draws out ideas and engages stakeholders—including those people who are experiencing the problem and who those who will use the innovation. The innovation lab provides the time and space needed for incubating ideas. It is a space that brings people together to exchange ideas.  Importantly, the lab is portable. It can gather people in a central place or it can go to where the problem is.  One of the most important aspects of the innovation lab is having well-developed processes for fostering participation, addressing the needs of stakeholders and for generating and testing ideas.
  • Finally, innovation requires knowledge. An innovation lab must have the capacity to draw on a comprehensive and up-to-date body of knowledge to feed the process. This knowledge can be gained from examining examples of innovations from different parts of the world, tapping into international research networks and listening to those who have first hand experience with the problems at hand.

The HiiL innovation process is built around six major building blocks.

1. Focus on Citizen’s Needs. Engage the people who are experiencing the problem or the need. Find out how they are experiencing the problem, what solutions they feel would work for them and what outcomes they would be happy with.

2. Release the Mind. Innovation involves breaking rules and normal practises. The professional training and socialization of legal professionals may limit the skills available in the justice sector; go outside to get different perspectives on what might work.

3. Shape Solutions.  Work backwards from outcome goals. Select the most fruitful ideas from around the world and from outside the box. Build prototypes but avoid early standardization or premature closure. Have a clear idea of what makes the solution new and unique and why it is better than what is already there.

4. Reframe the Constitution.  A promising innovation may be revolutionary. It may involve very different ways of doing things and new partners or participants. A new way of doing things will frequently produce winners and losers.  Determine what reactions can be expected and how you should respond. A vision is not sufficient in and of itself. However, a vision is needed to animate and inspire the process and to transform purpose into action. Recruit influential champions to support the vision.

5. Judge the Business. Although justice has value in itself, quantify the economic benefits and determine the sustainability of the innovation. Plan the costs and the cost savings. Focus on the key partnerships, resources and skills that will be required to implement the innovation successfully. Can savings be made on the cost of professionals where they are not really needed?  Can some functions be outsourced?

6. Get it Done.  During the implementation stage determine how the innovation is organized to stay focused and manage by results.  It is easy to get sidetracked! Set up the project to ensure there is continuous monitoring and feedback. There must be continuous learning and adjustment as the project moves forward.  Determine the metrics for success and how to measure them.

This is a practical book on strategies for successful innovation. The book is based on the successful innovations HiiL has developed at the justice innovation lab and projects from around the world that the Hiil Team have studied in the course of their work.  With hundreds of years of experience between them, the experiences of the authors, so well distilled and presented in the book, makes Innovating Justice essential reading for anyone wanting to invest time and resources in justice innovation.

The publication of Innovating Justice is timely in Canada as the need for justice innovation has never been more pressing. Budgets across justice systems are being cut or are not keeping pace with normal cost increases and the urgency of long standing needs, that have never been met, loom ever greater. The results of legal problems research following the justiciable problems methodology have uncovered layers of legal need that were previously not considered legal at all, rather, just the problems of the poor.  And, finally, it is becoming increasingly clear that holistic approaches to legal problems for which we currently do not have the service delivery infrastructure are the only way to provide effective and durable solutions to many legal problems.  Although innovation, driven by the need to do more with less, has been a perennial fixture in the delivery of legal services, the pressure to innovate is increasing.

Despite these problems, the environment for innovation in Canada has never been more promising. The final report of the Action Committee on Access to Justice in Civil and Family Matters will soon be released with recommendations for expanding access to justice in Canada and the Canadian Bar Association has just released their report, Equal Justice: Balancing the Scales, which contains a and ambitious and forward thinking “justice plan”.  These reports are encouraging and suggest that an environment for innovation is emerging from this unique moment in the history of access to justice in Canada.