Court Services of the Future: Online Mediation

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In British Columbia, the Legal Services Society has launched a free, online service called “The Family Resolution Centre”. It is part of My Law BC(delivered by legal aid provider Legal Services Society).

The Family Resolution Centre program of My Law BC helps separated couples create parenting plans online. The parenting plans deal with parenting time, vacations, and other childcare needs. Alternatively, couples can request up to five hours of free assistance from a mediator. It is the first service of its kind in Canada. It can be accessed from mylawbc.com under “Mediation Tool”.

Tools like the Family Resolution Centre are a great way to help address the issue of access to justice. Many problems we typically think of as legal problems are really social problems. In the article titled “Access to What?”, Rebecca Sandefur points out that when solving the access to justice problem we need to redefine “access to justice”. Access to justice does not mean unmet legal needs. “Judges and lawyers work at the top of an enormous iceberg of civil justice activity… the access to justice crisis is a crisis of exclusion and inequality, for which legal services will sometimes provide a solution.” Rather addressing access to justice requires us to think of problems more broadly. For instance, thinking of them as issues in relationships, work, or neighbours.

I hope that similar jurisdictions can implement a similar program to the Family Resolution Centre. The program seems to helps people solve their problems simply and in a manner that the public respects.

(Views are my own and do not reflect the views of any organization. This article was originally posted on slaw.ca)

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Solving the Issue of Access to Justice by Redefining “Access to Justice”

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“Justice is open to all; like the Ritz Hotel.”

In the article “Clients Need Legal Services But Not Necessarily Lawyers“, Mark Cohen writes about the issue of access to justice. He points out that improving access to justice does not always mean improving access to lawyers. He refers to new products that provide legal services. These products include a chatbot that helps fight parking tickets, LegalZoom, Hello Divorce, and alternative legal service providers (like in house departments) that are not built on the profit per partner model.

Cohen also refers to the scholarship by Rebecca Sandefur in explaining why improving access to justice does not necessarily mean improving access to lawyers. Improving access to justice starts by redefining what “access to justice means.”

In the article titled “Access to What?”, Sandefur redefines the meaning of “access to justice”. Sandefur points out that solving the problem of access to justice requires a new conceptualization of the problem. “The definition of the crisis as one of unmet legal need comes from the bar.” The idea that it is an unmet legal need comes from the fact that judges and lawyers are defining the problem. “Judges and lawyers work at the top of an enormous iceberg of civil justice activity.”

Most of the justice issues are invisible and handled without the help of judges or lawyers. Declaring the problem as a problem of legal services gives lawyers a starring role and makes for a tidy, but inaccurate narrative.

Sandefur writes that the “access to justice crisis is a crisis of exclusion and inequality, for which legal services will sometimes provide a solution.” Most civil justice problems are handled by people on their own primarily because “people do not consider law as a solution for their justice problems.” Rather, people think of their problems as issues in relationships, work, or neighbours.

Sandefur recommends that research be done to better understand when access to justice can be achieved by using the courts, legal services, or by another actor. Many problems adding to the access to justice crisis are part of larger systemic problems.

(This article was originally posted on slaw.ca Views are my own and do not represent the views of any organization.)

Commentary on the “Unintended Consequences: The Regressive Effects of Increased Access to Courts”

In “Unintended Consequences: The Regressive Effects of Increased Access to Courts“, law professors Anthony Niblett and Albert Yoon analyzed users of the small claims court system. In 2010, the small claims court’s jurisdiction increased from $10,000 to $25,000. When Niblett and Yoon examined if that change increased access to the courts, they found a paradoxical result.

Niblett and Yoon looked at the postal codes recorded with the court and compared the postal code data to data from Statistics Canada. Following the change in the court’s jurisdiction, they found that the plaintiffs were on average from richer neighbourhoods. Household income increased from $80,052 to $82,868.

“As plaintiffs increasingly come from more affluent neighborhoods after the jurisdictional change, we also observe that defendants come from more affluent neighbourhoods after 2010. This trend is similarly true of both individuals and business defendants.”

Further, after the change in jurisdiction, over 30 percent of all claims filed alleged damages in excess of $10,000. Below is a chart of the average amount claimed per year:

2006 $3,174
2007 $3,385
2008 $3,647
2009 $3,593
2010 $6,704
2011 $6,852
2012 $7,055
2013 $7,011

As a result of the increased amounts claimed, Niblett and Yoon suspect that more complex cases have infiltrated the small claims court system. This in turn has increased the backlog. “Cases now take longer to be resolved. Cases are heard first-come, first-served, with no preference for expediting “very small” claims.”

In my opinion, the demographics revealed in this report are consistent with a pattern. Groups that are often forced to deal with the judicial system (e.g. through criminal proceedings) tend not to be the groups that choose to engage with the court system. We frequently see marginalized groups disproportionately represented in prisons but do not see those same groups voluntarily resolving family or civil disputes through the courts. Revealing that although our courts are technically open to all, in actuality they are not.

Sometimes it seems that not much has changed since Sir James Matthew (an Irish judge at the turn of the 20th century) quipped that “justice is open to all, like the Ritz hotel”.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

How to Stop Our Civil Courts from Atrophying

“To stand by as civil courts continue to atrophy risks jeopardizing the health of our democracy, our economy, and our private law… [W]e must change our ways and work to re-invigorate our public civil courts.” Justice David M. Brown of the Ontario Court of Appeal in “Commercial Litigation in the Next 10 Years: A Call for Reform”

Currently, our courts are hemorrhaging civil cases. Instead of disputes being heard by judges, they are being heard by private arbitrators or tribunals. Oftentimes the reason for this diversion is cost. People proclaim that it is simply too slow and too costly to use our judicial system.

The atrophying of our civil courts means that our democracy pays the price. Democracy only thrives when everyone, including small businesses and individuals, have meaningful access to an independent court. This is because public dispute resolution maintains order in our society and ensures that our laws keep pace with the times. By doing so, it supports the public’s faith our governmental structure.

Tribunals are not a good enough substitute to our courts. Partly because tribunals, as creatures of statute, can be abolished at any time, including at a political whim.

In “A Call for Reform”, Justice Brown offers several strategies for stopping the reduction of our civil courts. In particular, he cites adopting a “Front-End-Assignment-of-Trial Dates” System. Trial dates would be assigned upon the close or deemed close of pleadings. And once assigned, these dates would be carved in stone. I would go one step one further. I would say these trial dates should be assigned upon the issuance of the Statement of Claim and then set in stone.

Forcing people to adhere to a strict timeline incentivizes lawyers to work quickly and not let their cases languish. To incentivize lawyers, Justice Brown recommends that parties be mandated to disclose the documents that they intend to rely upon at trial when they file their claim or defence. By forcing lawyers to think about the trial, we can begin to chip away at the culture that sees the skilled civil barrister as the “motions specialist, [rather than] the final hearing expert”.

To change the order of production and to assign court dates at the beginning of a lawsuit, we need to adopt technology in our courtrooms. “[L]et the light shine in, dispel the ghosts of the past, and have the Bench, Bar and provincial government move ahead to modernise our court technology systems.” Hopefully in doing so, we will move our culture from one that praises the motion specialist over the civil trial lawyer.

Should the Ghomeshi trial be televised?

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Often times academics, judges, and lawyers complain about the public’s disengagement with the legal system, proclaiming that if only the public voiced their concerns then the justice system would be properly funded. But now we have meaningful public discourse about our justice system, including debate over defence tactics through the conversation surrounding the Ghomeshi trial.

Lawyers, laypeople, and reporters alike cling to every tweet, as their only avenue of following the questioning and arguments. Beyond news coverage, it is nearly impossible to follow. To watch the trial, people need to line up at 7:50 a.m. each day to get a ticket.

Should the trial be televised?

Every lawyer I have asked to date has responded with a clear “No”.

In Ontario, trials are not televised. Only Supreme Court of Canada proceedings are televised and streamed. Perhaps if video technology existed hundreds of years ago, it would be tradition today to televise popular proceedings.

In the United States, several high profile trials have been televised. The OJ Simpson trial was televised. The Steven Avery trial was televised. In fact, it was the recording of the trial that made the documentary Making a Murderer so compelling, and which has fueled public debate about the criminal justice system.

Putting aside the publication ban on two of the witnesses, why shouldn’t the trial be televised? Why should only Torontonians that can take a day off work and line up at 7:50 a.m. be able to watch the trial? Why should we curtail public interest?

The common answers I have heard are:

  • Televised proceedings will distort testimony;
  • it will disincentivize people from coming forward as complainants or testifying at trial; and
  • it will undermine the seriousness of the proceeding.

In response I say, courtrooms are public proceedings, not private arbitrations. As revealed, by the tweets regurgitating the questions asked and answered.

Public engagement should be encouraged. Public discourse admired. Saying that trials are public because we can walk into a courtroom hides the truth. Trials are practically obscure. This obscurity prevents true openness of the courts, thereby undermining the health of our democracy. Open courts facilitate the rule of law, a foundational principle of our democracy.

Making a Murderer

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(This post contains spoilers.)

Netflix’s new documentary Making a Murderer highlights systemic issues in the justice system. It shows that class, education, and intelligence play a pivotal and prejudicial role in the determination of a dispute through the story of Steven Avery.

Steven Avery was convicted of raping Penny Bernstein around 1985. For 18 years he proclaimed his innocence. At trial, his family members testified. They accounted for every minute of his whereabouts during the rape of Penny Bernstein. However, the testimony of Penny Bernstein, wherein she pointed the finger at Steven Avery, held the day. Penny was everything Avery was not. She was well groomed, articulate, smart, educated, and wealthy. This made her a more believable witness than Avery and his family. However, in 2003, DNA evidence exonerated Avery, and he was released from prison.

Upon release from prison Avery brought a civil suit against the State relating to his wrongful imprisonment, seeking $36 million. In October 2005, key State witnesses were deposed, and damning evidence against State officials came out.

A few weeks later in November 2005, a woman named Teresa Halbach is found dead. The last place she was known to be alive was on Avery’s property. Avery and his nephew are convicted of her murder. Again Avery proclaims his innocence.

In March 2006, Avery’s nephew Brendan Dassey is arrested. He is 16 years old, developmentally delayed, and interrogated without counsel present. He confesses to the murder of Teresa Halbach, stating that he and his uncle raped and killed her.

Following his arrest, Brendan Dassey is appointed counsel. His counsel allows him for the second time to be interrogated in the absence of counsel, a damning event considering that he has an IQ of 70 and is very open to suggestion. His confessions in the absence of counsel are used against him at his trial.

Avery and Dassey are tried separately. The prosecutors do not subpoena Brendan Dassey to testify against his uncle probably because he would have made a terrible witness. His stories are internally inconsistent. They are also inconsistent with the extrinsic evidence.

By placing the spotlight on a justice system that condemns the impoverished, Netflix brings attention to the need for reform. Unfortunately, in Ontario (as I am sure in many other jurisdictions), the court system accounts for only a few percent of the overall state’s budget. But, proper funding is needed to ensure that people have true access to justice, including competent legal aid counsel.

“An open court system, animated by strong constitutional and rule of law values, plays a key role in realizing a democracy… [the justice system] facilitates democracy’s ability to ‘accommodate cultural and group identities’.” (Trevor Farrow, Civil Justice, Privatization, and Democracy)

If the public views the justice system as corrupt, unresponsive, and illegitimate, we face a true democratic deficit.

 

 

 

The Rise of the Vexatious Self-Represented Litigant

Not all self-represented litigants are created equally. Some are victims of circumstance. Forced to defend or prosecute their own claims because of poverty. Others are vexatious litigants, unable to find a lawyer to bring their meritless claims to court.

Vexatious self-represented litigants tend to behave in similar ways. They bring multiple proceedings when one would do. They appeal and appeal, all the while avoiding having their case heard on its merits. Worst of all, they view the court system and the law as a “convenience to be sought out when it suits one’s whim” (Guan v Dai, 2015 ONSC 7517). This mentality breeds disobedience with court orders.

Although I do not have the statistics at hand, the rise of the Internet has enabled an unprecedented number of self-represented litigants. Access to statutes, case law, commentary at the click of a mouse is a double-edged sword. On one side it is the great equalizer. On the other side, without the counteracting forces that lawyers are subject to – like codes of conduct and reputational concerns, the Internet enables the vexatious self-represented litigant.

In Baradaran v Tarion Corporation, 2015 ONSC 7892, Justice Myers details the correct approach to vexatious self-represented litigants. His approach recognizes the inherent unfairness of matching a lawyer against a self-represented litigant.

Self-represented litigants are entitled to be heard with respect and to be positively assisted by counsel opposite and the judge to ensure that all litigants have a full and fair opportunity to put their cases before the court.  Some lament that judges at times appear to bend over backwards to protect self-represented litigants to the point of unfairness to represented parties opposite.  It is important to draw a line.  All parties, self-represented or not, are entitled to a fair hearing and a fair day in court.  Self-represented parties can, at times, require assistance to understand the process and legal rules so as to avail themselves of their entitlement to the fair hearing assured to all litigants.  They are entitled to this assistance and both the court and counsel opposite are bound to provide it to ensure a fair hearing.  But no party, whether self-represented or not, is entitled to abuse the system or the party opposite. [Emphasis added.]

Judges need to look at the bigger picture and ask “What is really going on here?” And when they see abuse after abuse, they must invoke their discretion to protect the integrity of the justice system. Failing to do so, chips away at the legitimacy of our courts and our laws. “The structural foundation upon which our society is built”. (Guan v Dai, 2015 ONSC 7517)

(In Guan v Dai, the parties are represented by counsel.)