Access-to-justice barriers hurt ALL of us. What can lawyers do?
Here at LAWPRO, we monitor the news, especially legal journalism, to better understand the challenges facing lawyers. It’s rare that a week goes by without a story about barriers to access to justice. Indeed, while doing research for a feature about the challenges facing family lawyers in August 2012 (read it here), we were struck by how many of the lawyers we interviewed cited access to justice concerns as the most pressing issue in their field today.
But this week, two access-to-justice stories caught my attention by making the point that poor access to justice harms not only the individuals experiencing who experience it directly, but rather all of us. By restricting the pool of parties able to seek judicial remedies, barriers to justice slow the development of the caselaw, thereby allowing outdated or unsatisfactory practices, regimes and principles to remain in place, affecting the interests of the broader community.
The first story was Alan Shanoff’s commentary (Law Times, April 29 edition) about the costs backstory to the Jones v. Tsige privacy tort case. Successful plaintiff Jones was awarded $10,000 damages, but the litigation cost her over $160,000, and because of the novelty of the cause of action, she was required to bear her own costs. Shanoff points out that Jones developed the law with respect to privacy, but that the change was narrow, and exorbitantly expensive − inefficient progress, and incredibly burdensome for a single individual.
The second article, by Lawyers’ Weekly writer Cristin Schmitz (Lawyers’ Weekly, May 3 edition), tells the tale of an injured worker’s thirteen-year battle to obtain judgment against two insurers whose behaviour the court deemed a “reprehensible” display of bad faith. The result for the plaintiff was a record-breaking $4.5 million judgment (one of the first offers from one of the two insurers had been just $22,500). The court expressed doubt that many plaintiffs in the worker’s position are equipped to withstand “the financial and psychological pressure” of the kinds of defense tactics that were used in the dispute. How did this particular plaintiff manage? His daughter funded the litigation for as long as her funds held out, and then the law firm representing the plaintiff, Fasken Martineau, agreed to suspend billing its fees when the plaintiff hit the point where he could no longer pay.
While the firm’s forbearance was admirable in that case, we know that few law practices can afford to regularly postpone billing or gamble on receipt of fees, especially in practice areas where contingent fee arrangements don’t predominate. But as a profession, we cannot fall back on the excuse that we can’t afford to help promote access to justice. Not all forms of help cost money. Solutions to the increasing access to justice problem are likely to be complicated, piecemeal, and will require creativity and innovation.
Do you have creativity and innovation to spare? Keep reading and thinking about ways to improve access to justice while preserving quality in legal representation. And when you do have the capacity to assist an individual client (for example, by providing pro bono representation), remember that individual client wins often advance the law in ways that support the interests of society at large.