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Research

Designing a "Cost of Justice" Project

Barriers to accessing justice are a serious social concern. The expense of litigation to the justice system and to individuals was identified as one of three major concerns in the 1996 CBA Task Force on Civil Justice.1 A decade later, participants in the Into the Future: The Agenda for Civil Justice Reform conference underlined both economic and social costs of litigation as a priority concern for systems of civil justice across Canada. This was also a finding in the Civil Justice System and the Public project. The Canadian Forum on Civil Justice has accordingly identified as our top research priority the need to increase our understanding of the costs associated with accessing civil justice. One component of this research is determining the economic costs of both litigation and alternative paths to justice. Another component is identifying and understanding the detrimental economic and social costs that accrue if our civil justice system is not accessible, effective, fair and efficient.

During 2007 the cost of litigation received significant media attention throughout Canada. Ordinary citizens are concerned about this issue and its impact on their ability to resolve disputes in the justice system, and their concern is reflected in the media coverage. Research about the costs of justice is also of international interest. Canadian and UK research has established that socio-economic costs attach to the failure to access justice in terms of lost economic contributions and increased healthcare costs.

The Forum has already collaborated with Justice Canada in developing a report which looks at the social costs associated with the failure to effectively resolve legal disputes. Diana Lowe served as a member and Advisor to a Canadian Judicial Council Subcommittee on the Cost of Access to Justice (Trial). As well, the Forum has been invited to convene a national Action Committee on Access to Justice for which the cost of litigation will be the first topic of focus.

Research Program

Although the civil justice system is a cornerstone of our democracy, the cost of access to justice has not yet been well studied. Surprisingly little is known about how well the civil justice system works: what it costs, who it serves, whether it is meeting the needs of users, or the price for failing to do so. There are only limited statistics available to capture activities in our civil and family courts and even fewer regarding the broader system intended to serve the overall legal needs of the public. Existing large-scale empirical research on cost is decades old and has occurred in countries other than Canada. More recent research concerned with justice costs tends to be comprised of small studies amounting to snapshots, often paired with calls for larger and ongoing research. There are no baselines against which new reforms can be measured, and so it is not possible to evaluate whether reforms that are implemented have the intended impact. New approaches to measurement must be developed.

Finding ways to effectively document and understand how and where the financial costs of litigation accrue is complex. Developing the extremely innovative methodology needed will require a strong, interdisciplinary and collaborative commitment on a national and international scale. Investigating both the economic and social costs associated with resolving legal problems will require insights from the legal profession, court administration, economists, sociologists, political scientists and lay persons with experiences as litigants, potential litigants and witnesses.

Research Questions

At this point we have posed the following core research questions for discussion and development:

  1. What are the costs of pursuing the resolution of legal problems? This question has two key aspects:
    1. What are the costs of resolving disputes in the courts? This will include:
      • the private costs of pursuing resolution in the courts, including legal fees; expert fees; time; and personal health, economic and social well-being.
      • the public cost of the court system, including infrastructure, court staff and the judiciary.
    2. What are the costs of pursuing resolution of legal problems outside the courts? This will include:
      • the private cost of retaining legal advice; time involved to seek out information, advice, and negotiate a resolution; personal health, economic and social stresses.
      • the public cost of providing visible and accessible legal services and information resources.
  2. What are the costs of not achieving resolution? There are three key aspects to this question:
    1. The tendency of unresolved legal problems to cluster.
    2. Personal health, economic and social costs associated with unresolved disputes.
    3. Public health, economic and social costs associated with unresolved disputes.
  3. Is the cost of achieving resolution economically and socially warranted? This will be a cost benefit analysis, involving a balancing of the costs of an accessible civil justice system (question #1) against the socio-economic costs of not providing access (question #2).
  4. What can be done to effectively prevent disputes, and at what cost? We will explore methods for limiting or eliminating the need for legal services, through consumer protection, licensing, standard setting and pro-active regulation, and other innovations identified by the research. Attention will be paid to preventing recurring problems for low and middle income Canadians, with a particular focus on the most vulnerable. The cost-benefit of these social investments will be analyzed.
  5. What changes are recommended on the evidence? It is too early to know yet what action should flow from the evidence, but it is anticipated that this may include:
    1. Reforms to the formal procedures in civil and family courts. We will create model(s) for the ongoing monitoring and evaluation of new and existing processes and programs. These models will identify areas in which systemic changes to legal rules and processes can improve efficiency, access and cost effectiveness.
    2. Reforms to the larger civil justice system, including frontline entry and information points for the public. We will create models for evaluating the effectiveness of recently established entry points into the civil justice system.
    3. Models of legal practice. In collaboration with the practicing Bar and experts from Faculties of Business and economics, we will develop and pilot new models of legal practice designed to increase access to legal information, advice and representation at an affordable cost. The evaluation of these models will be included in the design.
    4. Changes to investment in the justice system. While it is widely believed that the cost of justice is too high, the evidence gained through this research will provide the first real opportunity to consider the full cost of providing access to justice, and to assess public and private investment in the civil justice system.
    5. Changes in legal and judicial culture. We will consider the influence of the adversarial system; the growing recognition of an ethical responsibility of proportionality; and the potential for reaching students through the teaching of professional responsibility.
    6. Involvement of other key sectors including health care, the business community and social services. These sectors are impacted by the health, economic and social costs of civil justice, and will benefit from changes which reduce cost.
    7. Involvement of the public. Effective public involvement will ensure that reforms to the civil justice system achieve improvements which benefit users.

Ultimately a comprehensive methodology must include a range of economic models to estimate comparative costs. This will involve unique approaches to understanding at which stages costs arise in various kinds of litigation, and why this is so and the development of a practical business model for a new way of practicing law which ensures that the cost of legal services are proportionate to the case.

Funding from the Canadian Judicial Council (2007) and Canadian Bar Law for the Future Fund (2009) allowed the Forum to identify reforms aimed at reducing cost, which are captured in our Inventory of Reforms.

Funding from the Alberta Law Foundation and the Law Foundation of British Columbia has further assisted the Forum to:

  1. ^ The view of cost as a major barrier to accessing civil justice, and a source of declining public confidence in the system, is widespread and long-standing. In Canada, in the 1987 Zuber Report, Justice Zuber noted that the most common complaint about the justice system was that the cost of litigation is excessive. In a 1992 Australian report, the cost of civil litigation was described as going "to the heart of the accessibility of justice." In his 1996 Access to Justice Report on the civil justice system in the United Kingdom, Lord Woolf commented that cost, together with delay and insufficient understanding of the system, were three key factors affecting the accessibility of civil justice.