Access to justice needs access to research

First published on slaw.ca

In December, the UK Competition & Markets Authority released its Legal services market study focused on individual consumer and small business experience of purchasing legal services in England and Wales. Not surprisingly, this report (the “CMA Market Study”) found:

Overall, we have found that the legal services sector is not working well for individual consumers and small businesses. These consumers generally lack the experience and information they need to find their way around the legal services sector and to engage confidently with providers. Consumers find it hard to make informed choices because there is very little transparency about price, service and quality.

This finding will be entirely unsurprising to anyone with passing familiarity with the substantial body of work, in Canada and elsewhere, showing unmet legal needs and lack of access to justice and legal services.

Naturally given the mandate of the Competition & Markets Authority, the CMA Market Study comes at these issues from a market perspective. This report looks at whether the market for legal services works effectively and concludes that it does not. The above quotation from this report makes the fundamental point which is that individual consumers and small businesses are not generally sophisticated purchasers of legal services and the providers of legal services provide very little transparency about price, service and quality. Entirely by coincidence, I wrote about this very point in my last column Access to Justice and Market Failure which focused on information asymmetry and market failure. As the CMA Market Study says:

Our market study was prompted by a range of concerns raised by interested parties, including concerns relating to the affordability of legal services, the high proportion of consumers that were not seeking to purchase legal services when they had legal needs (‘unmet demand’) and the possibility that regulation might be dampening competition.

Most of these concerns can be linked to the fact that the legal services sector is characterised by incomplete or asymmetric information. Consumers are often unable to judge quality before (or sometimes even after) they choose to buy a legal service. Information asymmetries can give rise to consumer protection issues, which provides part of the rationale for sector-specific regulation.

If legal services are to continue to be predominantly delivered by the market rather than the state (through legal aid or otherwise), it is important to be clear thinking about the realities of markets. This market study is an important evidence-based contribution to that thinking. But the point of this column is not to focus on the CMA Market Study.

The point that I want to make in this column is to highlight the importance of high quality research to truly addressing problems of access to justice and unmet legal needs. Not an exciting point to be sure but an important one, I think.

 In reading the CMA Market Study, I was reminded of another quite different study. In 2009, the Department of Justice Canada released a report prepared by Ab Currie of its Research and Statistics Division. The report was entitled The Legal Problems of Everyday Life – The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians. This is a fundamentally important work that looked the everyday experiences of ordinary Canadians. The first paragraphs of this report (the “Justice Canada Report”) are important:

The problems of civil justice, of access to civil justice and of unmet need for service in civil justice are most commonly studied from the point of view of the justice system, mainly with regard to the courts. The large, and reportedly increasing, number of self representing litigants crowding the courts is the issue that currently dominates both public and professional discourse. This is certainly an important problem, one that is as much a problem for the courts, mainly with respect to justice system efficiencies, as it is for the individuals who find themselves adrift without professional assistance in the complex and unfamiliar environment of the civil courts.

However, a wider perspective than one that begins with the courts is required to understand the full breadth of civil justice problems. It is widely accepted that many people with serious civil justice problems do not have access to the courts and thus do not appear as un-represented litigants. It is also part of the growing orthodoxy that many problems could be better resolved using alternative means, without engaging in expensive and lengthy court proceedings.

Two points can be taken from this quotation. The first is that access to justice/unmet legal needs is not just about what happens in the courts. Given our training as lawyers and especially for litigators, it is not surprising that we tend to see these issues as being about courts. To a hammer, everything is a nail.

The second and more important point is that there are a number of different and necessary perspectives from which to understand the extent and causes of unmet legal needs. The Justice Canada Report looked at the unmet legal needs of ordinary people by focusing on the problems of everyday life. The CMA Market Study examines the operation of the market for legal services. Neither report focuses on non-market provision of legal services through legal aid and otherwise or effect of the law and legal institutions on access to justice. This is no criticism – to the contrary. Understanding how a complex system works, does not work and should be reformed requires thoughtful analysis looking at the different component parts of the system separately and together.

Returning to the Justice Canada Report itself, it is significant in several ways. The first is that it is a Canada-wide report. The importance of this cannot be underestimated. We have a real risk of parochial understandings and approaches especially given how much of legal services is within provincial jurisdictions.  The second is that there is significant efficiency and efficacy in doing serious research and analysis at the national level. To state the blindingly obvious, access to justice and unmet legal needs are not only local problems even if some of the solutions must be.

Further, the Justice Canada Report had a significant on subsequent work and understanding. The Ontario Civil Legal Needs Project undertaken as a joint research project of the Law Society of Upper Canada, Legal Aid Ontario, and Pro Bono Ontario  lead to Listening to Ontarians focused on demand for legal services among low and middle-income Ontarians and The Geography of Civil Legal Services in Ontario focused the demographic characteristics of the Ontario population and the distribution of legal services. In 2011,  a colloquium was held at the U of T law school which lead to Middle Income Access to Justice,a collection of essays  about civil justice issues from Canada, Britain, the United States, and Australia. Most recently, the Canadian Forum on Civil Justice has undertaken the Everyday Legal Problems and the Cost of Justice in Canada National Survey which addresses the costs to individuals and to society of addressing and failing to address legal problems. In providing these examples, I don’t want to suggest direct causal lines from one project to another and I’ve not attempted to create a comprehensive listing of important work in this area. The point that I make is that each important piece of research from one perspective enables and betters further research. Understanding that there are unmet civil needs leads, for example, to consideration of the costs of addressing and failing to address legal needs.

Earlier this year,  White House Legal Aid Interagency Roundtable Civil Legal Aid Research Workshop Report was released (not exactly a consumer-friendly name). Richard Zorza describes this report in his Access to Justice Blog

 Formally titled White House Legal Aid Interagency Roundtable Civil Legal Aid Research Workshop Report, this Report represents a major milestone in one of the [U.S. Department of Justice Office for Access to Justice’s] most important initiatives.  It is no accident that since the Office was created, and particularly since [the Legal Aid Interagency Roundtable] was set up, we have seen an explosion of research interest in access to justice.  Prior recommendations to create research capacity in this field went unheard ever since the 1980’s when this capacity at [Legal Services Corporation was closed down.

Again, the point o f this column is not to examine the substance of this US report which is well described in Richard Zorza’s blog. Rather, the quotation above shows a parallel with the impact of the Research and Statistics Division of the Department of Justice in Abe Currie’s Justice Canada Report. Research capacity matters. Sadly, whether the US research capacity continues must now be uncertain given the recent election. In England and Wales, the CMA Report provides important insight but the ongoing research capacity of the Legal Services Board is important as is the fact that this research is not just from the lawyers’ perspective. This is inherent in the history and mandate of the Legal Services Board as well as a reflection of the impact of the LSB Consumer Panel.

So what is the punch line to all of this. The starting point is that research capacity matters. The next point is that good research leads to more good research and analysis. A virtuous cycle follows. Further, we cannot effectively address serious systemic issues like access to justice and unmet legal needs by intuitive responses that reflect our own limited perspectives. We need solid research and analysis.

What this leads to is to make two final points. The first is to encourage the Department of Justice to continue the good work that is reflected in the Justice Canada Report. While we now have further capacity, there is real value in maintaining  long term research capacity and Department of Justice is a natural place for such capacity given its breadth, depth and resources.

The second comes out of a recent discussion. There are many players in the legal system including attorneys general and their ministries, legal aid providers, the courts, law societies and universities. Each are busy doing their own work and thereby generating information/data about the justice system. While it is understandable, each player sees the value of its own information to itself but will not see the value to others including to researchers. Perhaps the time has come to take an open data approach to information about the legal system with a view to encouraging research and analysis addressing access to justice and unmet legal needs.

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