Civil justice systems aren't serving the public interest. It's time to break new ground and chart paths towards fast and fair dispute resolution that will meet people's actual needs.
It is amazing how such thoughts can be both obviously and profound. The civil and criminal justice systems no longer work. They are wooden. I’ve been a practising lawyer for 45 years. Over that period the systems have slid slowly, but surely to a place that serves no one. Everyone shuts their eyes and plays along. We tell clients who have small claims court matters in Toronto that the trial will be in two years. They don’t know whether to laugh or cry. Lawyers’ accounts are assessed by clients. Everyone waits years for hearing. To settle a lawyers bill. Superior courts cannot handle the workload, but propose only more judges as a solution. Read the dates of the actual disputes being discussed in some appeal decisions, the issue arose many years ago. The judges have actually become Historians. Courts have old-fashioned bankers hours Monday to Friday. But take a walk through some courthouses in the afternoon and look in the court rooms. You will be surprised. And yet, the Ontario law reform commission, a place one would think should be the cutting edge of reform, recently recommended that the environmental bill of rights be amended to give people more rights to sue to protect the environment. More suing? Really? Get in line. And do people really need a handsomely compensated justice of the superior court dealing with some of the most basic types of disputes? Particularly in family law. No. For a start, the system should move to incorporate a layer of arbitrators and dispute resolvers not unlike the masters and the family law commissioners of old but with real authority, simplified processes, very limited rights of appeal, support for users that reduces the reliance on lawyers for everything. . Only genuine questions of law or complicated situations should end up in front of judges. That’s for a start in the civil system. Let’s move from wood to more modern materials. The average citizen has lost confidence in the systems, particular the criminal system, and that is bad for democracy, very bad.
Thanks for focusing on this very important issue. You won't be surprised that I will want to add a few important existing processes to your list of three, namely mediation, med/arbitration, and collaborative law. These are often called "out of court processes". However, they can be employed at any stage. Our justice system isn't just about courts - courts are only one way that people can employ to deal with their legal problems. And new ways must be designed and improved to be people-centered (laser focus on the needs of the people the system/process is designed to serve and involving them in the design). Multi-disciplinary BC organizations like Access to Justice BC, Transform the Family Justice System Collaborative and the Family Justice Innovation Lab are working on innovative ways to design a new kind of system. Needless to say, this is difficult work as the current system is very resistant to change. But we have to start somewhere. Thank you.
Ah, yes, the civil legal system in the United States, which lawyers have created both in process and substance and then built for the nation's haves and corporations. Seriously, you're so on it that this is not just a system in need of re-engineering but a system that is super well-built to serve those it was built by and meant to serve. If you were starting from scratch, would you conceive of holding court during the work day in remote locations with a long list of cases to be called over the course of a day with all the litigants and lawyers sitting in benches? They would call you crazy. Thanks for calling out Bridget McCormack's forward vision. And, I assume you might consider it a friendly amendment to add something into the "fair" characteristic that captures not just that the process needs to be fair in a neutral way but that it is equitable in its design, its implementation, and the experience of it.
It is amazing how such thoughts can be both obviously and profound. The civil and criminal justice systems no longer work. They are wooden. I’ve been a practising lawyer for 45 years. Over that period the systems have slid slowly, but surely to a place that serves no one. Everyone shuts their eyes and plays along. We tell clients who have small claims court matters in Toronto that the trial will be in two years. They don’t know whether to laugh or cry. Lawyers’ accounts are assessed by clients. Everyone waits years for hearing. To settle a lawyers bill. Superior courts cannot handle the workload, but propose only more judges as a solution. Read the dates of the actual disputes being discussed in some appeal decisions, the issue arose many years ago. The judges have actually become Historians. Courts have old-fashioned bankers hours Monday to Friday. But take a walk through some courthouses in the afternoon and look in the court rooms. You will be surprised. And yet, the Ontario law reform commission, a place one would think should be the cutting edge of reform, recently recommended that the environmental bill of rights be amended to give people more rights to sue to protect the environment. More suing? Really? Get in line. And do people really need a handsomely compensated justice of the superior court dealing with some of the most basic types of disputes? Particularly in family law. No. For a start, the system should move to incorporate a layer of arbitrators and dispute resolvers not unlike the masters and the family law commissioners of old but with real authority, simplified processes, very limited rights of appeal, support for users that reduces the reliance on lawyers for everything. . Only genuine questions of law or complicated situations should end up in front of judges. That’s for a start in the civil system. Let’s move from wood to more modern materials. The average citizen has lost confidence in the systems, particular the criminal system, and that is bad for democracy, very bad.
Thanks for focusing on this very important issue. You won't be surprised that I will want to add a few important existing processes to your list of three, namely mediation, med/arbitration, and collaborative law. These are often called "out of court processes". However, they can be employed at any stage. Our justice system isn't just about courts - courts are only one way that people can employ to deal with their legal problems. And new ways must be designed and improved to be people-centered (laser focus on the needs of the people the system/process is designed to serve and involving them in the design). Multi-disciplinary BC organizations like Access to Justice BC, Transform the Family Justice System Collaborative and the Family Justice Innovation Lab are working on innovative ways to design a new kind of system. Needless to say, this is difficult work as the current system is very resistant to change. But we have to start somewhere. Thank you.
Ah, yes, the civil legal system in the United States, which lawyers have created both in process and substance and then built for the nation's haves and corporations. Seriously, you're so on it that this is not just a system in need of re-engineering but a system that is super well-built to serve those it was built by and meant to serve. If you were starting from scratch, would you conceive of holding court during the work day in remote locations with a long list of cases to be called over the course of a day with all the litigants and lawyers sitting in benches? They would call you crazy. Thanks for calling out Bridget McCormack's forward vision. And, I assume you might consider it a friendly amendment to add something into the "fair" characteristic that captures not just that the process needs to be fair in a neutral way but that it is equitable in its design, its implementation, and the experience of it.
I agree with a great deal of this Jordan. A great post