Evidence-based research in law is necessary. Without it we rely on assumptions and anecdotes which, however practical or logical they may seem, can lead to egregious and unanticipated outcomes. At best, this might mean misunderstandings about the effectiveness of legal services; at worst the result could be misspent resources that make legal services even more inaccessible than they are now. Take the following as an example. One of the main arguments in favor of expanding the types of legal services that paralegals are authorized to provide is the lower cost of paralegal services relative to the cost of legal services provided by lawyers.[1] A greater range of affordable, accessible and efficient legal service offerings would prove to be a significant benefit to low-income earners. It would offer relief to a segment of the population that frequently finds themselves priced out of our civil and family justice systems and, in so doing, it would help curb the crisis in self-representation plaguing our courts and tribunals. The rationale here is that a viable way to mitigate the problem of high costs that impedes access to justice is by providing lower cost alternatives. The argument holds water, yet data from a study on “Paralegals and Access to Justice” found that in residential tenancy disputes in Ottawa, only landlords (and largely corporate landlords) benefitted from access to paralegal services to resolve disputes. This study, which was led by Professor David Wiseman, examined more than five years of data from the Eastern Region of the Landlord and Tenant Board of Ontario.[2]
The issue here is not whether broadening the scope of paralegal responsibilities has the potential to contribute to improving access to justice–it does.[3] Rather, what is required is an evidence-based understanding of the contexts in which access to this particular type of justice intervention promotes access to justice, to what extent and for whom. What is needed is more research.
Assessing the Impact of Legal Service Interventions
At the Canadian Forum on Civil Justice (CFCJ) we have been advancing the case for more evidence-based research in law for more than twenty years. We have and continue to lead, collaborate on and contribute to evidence-based research initiatives aimed at improving public understanding of the civil and family justice matters that affect Canadians.[4] Though we now know more now than we previously did about access to justice, the costs of justice and the price of failing to meet Canadians’ justice needs, there is even more that we still do not know.
As part of our ongoing commitment to carrying out evidence-based research that can help to fill gaps in our understanding of access to justice, the CFCJ recently launched the first phase of a research project to assess the long-term impacts of different types of legal interventions on the outcome of legal disputes.
Despite the paucity of data on the effects of experiencing legal problems and on the effectiveness of legal information and services on outcomes, longitudinal impact studies of the type envisaged by this new CFCJ project are rare in law. Longitudinal studies tend to be more costly than other research methodologies because they require study over a significantly longer period of time, often with a wider variety of collaborators. This fact, in addition to a general resistance to rigorous empirical research within the legal sector may explain why this type of observational research is so uncommon in the legal field.
Thanks to support from the Law Foundation of Ontario (LFO), the CFCJ’s new “Measuring the Impact of Legal Service Interventions” project will be among the first of this type of study in Canada.[5] It will contribute to a better understanding of the impacts of access to legal help, the long-term effects on the health of clients, and the costs and benefits over time of access to legal services when resolving disputes. The findings from this research will also be valuable to different justice system stakeholders.
For the public, and in particular people who are unable to engage lawyer services to resolve their legal problems, this research could help to inform choices about how to deal with legal problems. It could also potentially improve legal capabilities. On-the-ground legal information and legal service providers could gain insight that could help them to tailor services or inform decisions on how best to allocate budgets. Similarly, for governments, funders and policy-makers, evidence-based research on the effectiveness of legal services can pave the way to a better understanding of what justice pathways are the most beneficial, in what scenarios and for which populations.
Objective scientific evidence is the standard in many other fields, and rightly so— imagine discovering that you were prescribed medication that had not undergone rigorous testing, or purchasing items at your local grocery store that had been exposed to conditions for which the long-term effects were still unknown. Decisions made in the legal sector should undergo the same levels of scrutiny and be held to the same standards. After all, the consequences of experiencing one or more serious everyday legal problems, similar to problems experienced in other sectors, can be life-altering. As we have confirmed in recent years, not only are everyday legal problems ubiquitous, they also adversely affect mental and physical health, and lead to other, serious social, personal and economic problems.[6]
The Case for More Evidence-Based Research in Law
If we do not acknowledge that sound empirical evidence is a prerequisite for appropriate, effective and sustainable legal practices and policies, as well as the responsible way to approach decisions that stand to significantly impact lives, communities and economies, we will continue along a path where there is very little meaningful progress in access to civil and family justice. Rates of investment in justice research remain abysmally low.[7] Funding justice research, through public-private partnerships, grants, donations or other means is a critical component of the access to justice equation.
What people do about their legal problems, how they interact with our civil and family justice systems, the circumstances that have an impact on outcomes, and the immediate and long-term consequences of experiencing legal problems are just a few examples of areas where more research is critically needed to inform better policies and effective, on-the-ground strategies.
With more evidence-based research we can deliver more cost-efficient and effective legal services and grow public confidence in the justice system. Access to more evidence-based research in law can also contribute to more support for justice programs since decision makers will feel more confident that funding will be going to programs that have been proven to be effective. Evidence-based research will also support more opportunities for learning. These are just a few examples of ways that the justice community and the public will benefit from more evidence-based research in law.
Thanks to the LFO’s support, the new “Measuring the Impact of Legal Service Interventions” project will help to bring us closer to some of the first Canadian research that measures the actual effectiveness of justice services.
Learn more about the “Measuring the Impact of Legal Service Interventions” project on the CFCJ website: www.cfcj-fcjc.org/our-projects/measuring-legal-service-interventions/.
This article originally appeared on Slaw.ca on August 15, 2019: http://www.slaw.ca/2019/08/15/fixing-a-problem-that-we-dont-fully-understand/.
__
[1] See for example, Jessica Prince and Rory Gillis, “Lawyers are too expensive for most Canadians. Give more work to paralegals”, The Globe and Mail (5 November 2013) online: The Globe and Mail <https://www.theglobeandmail.com/opinion/lawyers-are-too-expensive-for-most-canadians-give-more-work-to-paralegals/article15262477/>.
[2] See David Wiseman, “Further Research Update: Paralegals, the Cost of Justice and Access to Justice: A Case Study of Residential Tenancy Disputes in Ottawa” (June 2016) online: CFCJ <https://cfcj-fcjc.org/sites/default/files//Paralegals%2C%20the%20Cost%20of%20Justice%20and%20Access%20to%20Justice%20-%20A%20Case%20Study%20of%20Residential%
20Tenancy%20Disputes%20in%20Ottawa.pdf>.
[3] According to a 2010 study on legal needs in Ontario, “one in 10 of low and middle-income Ontarians who sought legal advice in the past three years turned to a paralegal. The majority (62 per cent) expressed satisfaction with the service they received.” See, The Ontario Civil Legal Needs Project Steering Committee, Listening to Ontarians, Report of the Ontario Civil Legal Needs Project (Ontario: Law Society of Upper Canada, 2010) at 36, online: Law Society of Ontario <https://lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/m/may3110_oclnreport_final.pdf>. See also, Amri Murray, “Access to Justice: The Value of Paralegals” Advocate Daily (2 November 2018), online: Advocate Daily <https://www.advocatedaily.com/amri-murray-access-to-justice-the-value-of-paralegals.html>.
[4] For more information about the Canadian Forum on Civil Justice, our projects and partnerships, visit: www.cfcj-fcjc.org.
[5] The Institute for Social Research (ISR) at York University and the Community Legal Education Ontario (CLEO) are currently conducting a longitudinal study on the impact of legal information on people’s interactions with the justice system in Ontario and British Columbia. This study was also supported by funding from the Law Foundation of Ontario.
[6] See Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, May 2016) at 16-19, online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.
[7] A previous CFCJ Slaw column estimated that law-related research represented roughly 1.71% of total research funding and support from one of Canada’s largest research granting bodies. Of the more than $700 million in research grants and other support by the Social Sciences and Humanities Research Council of Canada (SSHRC) in 2015, approximately $12 million went to projects that indicated Law as the main research discipline. See, Andrew Pilliar, “The Cost of Justice (Research)” Slaw (20 April 2017) online: Slaw <http://www.slaw.ca/2017/04/20/the-cost-of-justice-research/>.