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Access to Justice, Where in the World are You?

  • July 01, 2015
  • Ivan M. Merrow

Canada is no North Star when it comes to civil access to justice

Canada is no North Star when it comes to access to civil justice: in the 2014 World Justice Project’s Rule of Law Index, Canada ranked behind 12 other high income countries. At the top are Norway, Netherlands, Germany and Demark. These four civil law countries score highest on access to justice because their legal systems are more expedient, accessible and affordable. Countries with common law legal systems like Canada’s—namely the United States and United Kingdom—rank equal or worse on the Index.

Why the bad score? Canada has been consistently dragged down by three categories: affordability, freedom from discrimination, and speed. The trend has been so pronounced that it has prompted commentary by Supreme Court justices and academics alike. What are we doing wrong? More importantly, what lessons can we learn from the countries doing it right?

Incentives to settle; incentives to speed up

Here in Ontario we know what being in 13th place for access to civil justice looks like. The proportion of self-represented litigants (SRLs) in family law applications were reported as high as 64% in 2011/2012.

This created an acute challenge for our legal system: SRLs cost the system by stretching delay and scarce judicial resources. Eventually, the SRL bulge predicated big changes: the creation of specialized family law courts in Ontario, Law Help Ontario’s expansion into offering legal information by phone and Internet, and the launch of TAG (the Action Group on Access to Justice).

Most access to justice initiatives in Ontario seem to focus on providing better information to civil litigants. While more information may be helpful, more dramatic differences set the world leaders apart from Canada.

For example, Germany seems to have framed the problem squarely on one variable: fees. When lawyers cost too much, only the rich can pay for legal services. Germany’s solution was to implement a comprehensive fee schedule for lawyers.  While the schedule isn’t mandatory, alternative billing agreements must be agreed upon separately. Invoices to clients must contain the hours worked and explain how fees are calculated.

Germany’s baseline representation fees are roughly 10% of the value in dispute. The type of law and level of difficulty then are factored in as “ratios” that increase or decrease the standard fee schedule. Out-of-court settlements are rewarded by a 1.5 multiplier. Unsuccessful claims are also punished by a “loser pays all” system like Canada’s. The relatively low cost of civil fees in Germany promotes quick dispute resolution, making it one of the world’s most expedient civil justice systems.

The German lawyers’ low cost naturally promotes a high demand for court services. Consequently, court fees may be much higher than Canada’s because they’re based on a percentage of the plaintiff’s claim. The German system raises interesting questions about access to justice. It puts incentives in the right place: lawyers are rewarded for processing high dispute volumes quickly at low cost. With few hourly billing arrangements, lawyers (like their clients) have little patience for delay.

With German-style incentives in place, all litigators in Ontario could benefit from the same access to justice that personal injury litigation does today. However, greater access to courtrooms comes at high cost. Like the Germans, the additional demand on Ontario courtrooms, judiciary, and technology would likely have to be offset by higher court fees or taxes. That has led other civil innovators in Europe to think differently about where disputes can and should be resolved.

Access to civil justice outside the courtroom

The Dutch have responded to the access to justice problem by looking online. The Internet’s low cost and accessibility make it ideal for low-value disputes. Accordingly, the Netherlands-based not for profit think-tank called “HiiL” developed two online dispute resolution platforms: Burenrechter for neighbour disputes and Rechtwijzer (or “Signposts to Justice” in Dutch) for family, landlord-tenant, and employment-related disputes.

The platforms are more than online courtrooms: they frame conflicts differently. The focus is on interests, information sharing, and co-planning. For example, Rechtwijzer’s family platformfirst asks each party to write in their own words what they think their children will need growing up and where they initially think the children should live. Each parties’ interests are shared and displayed on the online portal to identify overlap and conflict.

The Rechtwijzer platform is extensive, guiding parties through the dispute from intake to resolution. Separation agreement clauses are co-drafted, with buttons to allow parties to “agree” or “mediate” each term until they both press “decide.” Online mediation is available to help break impasses, and all agreements are reviewed by a neutral third party prior to final execution.

The two Dutch projects have only been implemented recently, so data on use and effectiveness is still forthcoming. The theory, however, has already been proven by Ebay and PayPal. Their online dispute resolution (“ODR”) platforms have resolved more than 400 million buyer-seller disagreements to date. ODR is quick, affordable, and fair enough for consumer disputes. With a few tweaks, it’s not hard to imagine how Rechtwijzer’s ODR could do the same for civil ones.

Soon Ontarians may not even have to travel overseas to see Rechtwijzer in action. British Columbia’s Legal Services Society (“LSS”) has adopted the technology and has rebranded it “MyLawBC.” The launch is planned for Fall 2015. According to the website, the LSS plans to integrate its phone and online personal assistance with the platform. When combined, the services make it unlikely that people will visit in-person clinics for simple civil disputes. It’s a win for provincial legal aid budgets and consumers alike. But what about lawyers?

The private sector response

The Europeans may lead in civil access to justice and publicly funded innovations, but when it comes to rapid entrepreneurial innovation, our American neighbours are a role model for Canada. For example, on the website Angel List there are more than 380 legal-related start-up companies listed. Only 11 listed companies are Canadian.

Any consumer need that isn’t being met is a potential start-up opportunity. That makes the access to justice crisis a cornucopia for people who want to think differently about law. From a survey of the legal start-ups on Angel List, the most common areas the private sector has been pursuing are: (a) making it easier to find a lawyer, (b) reducing lawyers’ costs, or (c) presenting legal information more clearly, and usefully, than case law or statutes can.

While lawyer-search services and more efficient law practice technology may save consumers time and money, it’s unlikely that they will make lawyers affordable for all. If overhead was the problem, lawyers practicing at home would meet the public’s demand for lower costs. The real issue is that the lawyer, not his or her office, is the expensive part of legal service. That has led to the third category of legal start-up businesses: services that reduce or replace the need for lawyers entirely.

Here are some examples from the US and closer to home:

  • Modria, “the Fairness Engine for the Internet.” Modria designed the online dispute resolution technology that ebay and PayPal have used to solve 400 million consumer disputes. No mediator or lawyer required.
  • Rocket Lawyer, “Legal Forms Without Lawyers.” Rocket Lawyer (and its rival Legal Zoom) have created massive online legal document databases to help ordinary people make contracts, incorporate, and send legal letters. Some are very sophisticated.
  • ROSS Intelligence, “Your Brand New Super Intelligent Attorney.” A group of University of Toronto students are teaching IBM’s Watson how to do legal research. Plain-language questions return straight legal answers, much like you would ask an associate. Currently ROSS is being marketed as a law firm research tool. It’s not beyond the imagination that clients might one day ask ROSS legal questions without speaking to a lawyer first.

Could any of the start-up businesses on Angel List single-handedly provide access to justice in Ontario? Not likely. The private market is only one part of the solution. What it does demonstrate, however, is that lawyers are becoming less relevant in the conversation.

Looking abroad, we see technology rapidly closing the gap between what lawyers cost and what clients can afford to pay. The discussion among world leaders in civil access to justice is not about lawyers; it’s about clients. “What do people need? What can they afford? What can we do to make that happen?” To be a true North Star, Ontario needs to start there.

Ivan M. MerrowAbout the Author

Ivan Mitchell Merrow is an incoming student-at-law at Devry Smith Frank LLP in Toronto. IvanMerrow.com, @CanadianLawGuy

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