Tag: access to justice

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L21C Book Club: The Citadel

In my non-work time, I’ve been re-reading a novel that I first read many years ago: The Citadel by A.J. Cronin. The Citadel was published in 1937. It was made into a film in the 1930s, and adapted for television several times, most recently in the 1980s.  The Citadel was once a very famous book, but it seems to have faded out of consciousness these days.  I hadn’t thought about it for ages, then I saw it mentioned somewhere by chance and thought “I’d like to read that again.”

I’m glad I did.  It’s a good read.  But more importantly – and the reason for doing a blog post about this book – it turns out that this is a fascinating to read from my point of view now, as a someone who’s part of a profession undergoing great change and examination of its own purpose, ethics, and place in society.

A.J. Cronin was a doctor.  His novel is about a doctor, his fictional alter ego Dr. Andrew Manson.  At the beginning of the novel, Dr. Manson, an idealistic and principled young medical school graduate, arrives in a remote Welsh mining town for his first job.

Andrew Manson works to heal the struggling, proud coal miners and their families.  He gets challenging diagnostic cases and he is brilliant at solving them.  He encounters public health problems – typhoid from a leaking sewer, lung disease from anthracite dust – and he works hard to understand the root causes and solve them, even to the point of taking radical action.  In a memorable scene, he and a friend clandestinely blow up a leaking sewer to force the authorities to fix it.  He is hampered by bureaucratic indifference, and by the ignorance and outdated approaches of some of his fellow doctors.  He doesn’t make much money.  He’s also a bit of a hothead and a prig.  Cronin was too good a writer to make his protagonist an insufferable saint.

Later in the novel, Andrew is seduced by opportunities to make more money and live like his more prosperous doctor friends, who find rich patients and charge them silly money for largely useless treatments.  He becomes, in conventional terms, successful. Cronin portrays this change as a loss of his soul.  And what happens next … you’ll have to read it to find out.

There were many points in the novel that had a new kind of resonance for me, reading it again after years in the legal profession and teaching law.

For example:

  • When Andrew first goes out to practice and work on real cases, the things he learned in the lecture hall at medical school seem like they are from another world.
  • His professional choices are dominated by the tension between personal success and prosperity, on the one hand, and the ideals of his profession and his idealistic desire to serve the public good, on the other. Cronin depicted Andrew’s attraction to material success as a kind of ethical failure, but he didn’t mean it as an indictment of his protagonist as an individual.  He saw the medical system of his time as inevitably (systemically) producing such moral failure.  He said of The Citadel: “I have written … all I feel about the medical profession, its injustices, its hide-bound unscientific stubbornness, its humbug … This is not an attack against individuals, but against a system.”
  • Andrew has virtually no power and no route to dealing with what causes patients to be ill – malnourishment, bad sanitation, dangerous working conditions. All he and other doctors can do is patch things up when people become ill.  They are ambulances at the bottom of the cliff, not a fence at the top of the cliff.

The Citadel was written before there was a National Health Service in the UK.  All doctors were, essentially, small businessmen (they were indeed mostly men).  Every decision about taking a patient necessarily involved a calculation about profit and financial viability, and could not be based solely on the patient’s need or the complexity of the case.

One thing that is fascinating to me about The Citadel, a twentieth-century book, is that these dilemmas are so similar to the ones faced by medical characters in nineteenth-century literature. There are great fictional doctors of previous generations caught in the same conflict between idealism and material success, like George Eliot’s Dr. Lydgate (one of my favourite fictional characters of all time).  I don’t think the central dilemmas for doctors, or their fictional representations, are typically like that now.  But … they still kind of are for lawyers.

The National Health Service was created after the Second World War, in 1948.  The Citadel’s powerful indictment of the ethics of profit-driven medicine is thought to have helped lay the foundation for the creation of the NHS.

This is a fascinating tale for lawyers going through self-examination about their role as professionals, and reflecting on the systemic strengths and weaknesses of our profession.  I recommend it to any L21C partners who have a bit of time for novel-reading after exams are over.  The gender and racial attitudes are … no better than you’d expect from a book published in the 1930s.  But if you can overlook a handful of cringe-making moments of that sort, it’s a book full of humanity and insight, especially for twenty-first century professionals in the process of shaping their professional identities.  It has a lot to say to us.

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Why you need to know about Black Swans

Why you need to know about Black Swans

The first encounter:

In 1697, Dutch merchant, William De Velaming, became the first European ever to set eyes on a black Swan while sailing the western coast of Australia. Before this point, no one in Europe had ever heard of a black swan, and its “discovery” sent shockwaves across Europe. The bird left such a lasting mark on the European psyche that three centuries later, the term “Black Swan” has been borrowed to refer to unforeseen and consequentially disruptive events.

Instances of black swans vary from time to time and are spread out through human history. The key feature to remember is that black swans arise out of an inherent psychological bias that humans share against outlier events.

For example, after the First World War, French military engineers constructed fortified trenches that stretched for miles across the French-German border. In their wisdom, the French engineers had envisioned a defensive position that would thwart a future invading force.Alfred Hitchcock, Father and Son (1957)

The “Maginot Line” was France’s perfect response to a future German invasion, except that the Second World War was not fought in trenches. Innovative battle techniques (i.e. Blitzkrieg) and new technologies of mass destruction transformed the line from a miracle of engineering to a giant ditch of concrete.

But what went wrong?

In his book, The Black Swan, Nassim Taleb tells the story of a turkey that is fed and kept fat by its farmer. This ritual goes on for a thousand days until the Turkey associates each new day with a fresh supply of food.

On the 1001st day, the farmer slaughters the turkey and feeds it to his family. The turkey has a Black Swan moment.

In hindsight, the turkey’s predicament is perfectly foreseeable. The farmer feeds the turkey because he wants to slaughter it at a future date. However, to the unsuspecting turkey, the pattern of being fed is never broken and so there is little reason to think otherwise. The logical choice for the turkey is to continue eating because the supply of food appears infinite.

Image: The Seventh Seal (1957) - Playing Chess with Death - Ingmar Bergman
“Just because you haven’t died yet, it doesn’t mean that you are immortal” Nassim Taleb

A real-life example to the turkey parable is the 2008 Financial Crisis. Prior to the crash, sub-prime loans and mortgage-backed securities were highly favored by lenders and credit agencies alike. In fact, mortgage-backed securities were first introduced in the 1970s as a measure to hasten economic growth and stimulate real-estate purchases. However, it was only after the crash that the rhetoric surrounding their use became highly negative. The financial industry experienced its own black swan moment; it innovated to eat more.

The “Progress Trap”

A theory blames the giant statues on Easter Island for the death of the Island’s inhabitants.

It goes like this: the inhabitants of the island perceived the statues as the highest mark of divine favour. They cleared out vast amounts of land and cut down thousands of trees to erect more and more of them. The process became the ultimate purpose of the Island’s inhabitants.

The building frenzy went on until the Island’s fragile ecosystem collapsed and wiped out the island’s inhabitants. They were not slaughtered by a farmer, but died due to famine and a shortage of food.

A first-year student may refer to this as a “tragedy of the commons”, but there is more to it than just that.

The islanders triggered a “progress trap”. They became victims of their success. For them, the process of building became a synonym for economic output and progress. They even came up with innovative new ways to deforest the land and destroy the very foundations of their habitation.

Looking back, it’s easy to blame them for their demise, how could they not see it? However, for the islanders, their ultimate doom was nothing short of a Black Swan.

“to the unsuspecting turkey, the pattern of being fed is never broken and so there is little reason to think otherwise”

—

We live in an era where an interconnected world is increasingly susceptible to Black Swan moments. Each day, disruptive technologies are transforming the world in which we live.

The legal profession is not immune to these external forces. Our ability to provide legal services is no longer an infinite resource. Each day, lawyers face increasing competition from alternative service providers and digital
cyber platforms (the internet). The threat of artificial intelligence is looming over the profession.

And yet the level of innovation within the legal profession remains stationary. In the past 100 years, the legal profession’s greatest innovative measure is a set of business management principles by Paul Cravath – an innovative approach if the underlying objective is to “eat more”.

This is not to say that firms have stopped innovating. Large firms possess modern IT departments and tend to purchase the latest technology to streamline their internal processes. However, are these initiatives fundamental to transforming the legal profession? Alternatively, do they simply make lawyers more susceptible to a “progress trap”? It is difficult to say.
Large law firms have been able to avoid failure by expanding their client base and downsizing inefficient departments by pursuing austerity. But, post-2008, the demand for legal services is declining. The current 1-2% annual growth figure is highly reliant on macro/global economic trends, such as quantitative easing (printing of money) and population growth. In other words, the legal profession may be waking up one day to a farmer holding an axe.

“The legal profession is not immune to these external forces.”      The Third Man (1957) Carol Reid / Orson Wells

—

Why Does Access to Justice Matter?

The contemporary access to justice crisis serves as the perfect moment for self-reflection. Somewhere along the road, profit generation became the main focus of the profession while the delivery of legal services shifted to become only a secondary consideration. Most lawyers would agree that access to justice is a serious issue, but there has been little political will to change the profession fundamentally.

In today’s terms, becoming a lawyer isn’t just being part of an esteemed profession, but it is also a relatively reasonable investment. This makes lawyers weary of any drastic changes to the profit-making dynamics of the profession. Meanwhile, people of lower socio-economic background and those living in rural communities are more and more in pursuit of alternatives.

This makes innovative measures aimed at solving issues of access to justice imperative to the future well-being of the profession. Access to justice isn’t just a trendy phrase, but also key to reshaping the delivery of legal services. It is important because it introduces a non-profit, service-oriented perspective to the profession.

Nassim Taleb once said that our goal as a society shouldn’t be to predict Black Swans but to adjust to their existence. The logic of black swan suggests that “what we don’t know is far more important than what we do know”. The mere consideration of outlier events in our macro decisions could reduce their force when they do take place.

This fact alone should encourage the legal profession to encourage more innovative solutions, solutions that go beyond streamlining the process and instead raise fundamental questions as to the nature of the profession.

 

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India’s Public Interest Litigation – an opportunity for Canada

For many individuals and groups, the prohibitive costs and complexity of the justice system prevents them from bringing forward their case for human rights and social justice. Furthermore, issues of standing can prevent social activists and advocates from filing a lawsuit on behalf of a group facing injustice. One avenue that we can explore in Canada is the expansion of legal standing and who can file a case. In India, public interest litigation (PIL)/social action litigation has allowed third parties to bring forward cases involving constitutional and human rights issues. Furthermore, a case can be filed even on the basis of a letter sent to the court and barriers to filing such a lawsuit are low.

In Canada, pro bono legal services and not-for-profit legal advocacy organizations have played an important role in advocating for economic and environmental justice. Further easing the process for filing cases on matters of public importance could help address social issues. Journalists and concerned citizens could then have another powerful way of raising their voice on these matters.

Some concerns have also been raised. These include PIL cases being used for reasons motivated not by public interest, but for other improper purposes, which leads to a greater number of cases that the judicial system has to deal with. However, these issues can be overcome and solved by ensuring that only cases with merit and with valid issues of concern are allowed to proceed to the next stage.

Analyzing and learning from India’s experience with PIL and exploring its benefits and challenges can allow us to discover potential opportunities for ensuring greater access to justice in Canada. Such a model could help open the doors of the justice system for individuals and organizations on the front-lines of social justice advocacy. We should be exploring ways that we can implement such innovations in our system. This might begin with a pilot program, where we would assess the effectiveness of the system after a reasonable time period.

Justice RS Sodhi, the former Delhi High Court Judge stated the following: “PILs have been able to pick up the grievances of people as a whole, with the objective of en masse improvement of a system. When individuals could not come to court, the courts became obliged to look into a situation as was prevalent and bring improvement in the system.” He also stated that “there are always two sides to a coin. There will be people who will try and exploit [PILs], whether courts allow themselves to be misused…that is where the wisdom of the courts lie.”

The following is a link to a document that describes the issues that a petition for public interest litigation can address in India: http://bit.ly/2bzfGsk. The following link provides basic information about PIL on pages 199-200: http://bit.ly/2dvRsxz. Justice RS Sodhi quoted in: http://bit.ly/2dQ9dew

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“Axess” to justice – a new way of delivering legal services

Last Friday, our L21C class was talking a lot about the billing practices and business models of law firms. A lot of problems with the traditional billable hour model were highlighted and we had many discussions on how we can do things differently. We need to do things differently because existing clients are demanding it and potential clients are being left out. In my opinion, the billable hour and the lack of transparency and predictability in the pricing of legal services are major barriers to access to legal services for many individuals. We need to make changes in how we provide our services before others step in and do it for us.

A new way of delivering legal services

In comes Axess Law. They are a radically different law firm. They are located in Walmart. They write wills for $99. These two things alone are a drastic departure from the traditional notion of a law firm. They utilize technology and their experience to make legal services affordable and accessible to the everyday “Walmart shopper.” They are tapping into a market that no other law firm has yet. What makes them so great in my opinion is that they offer affordability and transparency, and therefore accessibility to the “average individual.”

Affordability and predictability

Axess Law will write simple wills for $99 when the average going rate for a basic will is $300. Axess Law started off with a focus on writing wills and other areas of law with defined workflows. Using what they call “Best Retail Practice,” they are able to determine the duration and price of a given client meeting in advance of an appointment. This in turn allows them to develop their back-end technology to support and deliver legal services at prices that you and I could afford.

Transparency

They offer flat fees for a majority of the work that they do and those fees are all clearly indicated on their website and in their storefronts. They provide quotes upfront for more specialized services. I think that this is all really enticing for the average person. Being able to gauge whether if they can afford a particular service before they even begin to engage removes the hesitancy associated with uncertainty.

Accessibility

Axess Law targets that segment of people who are currently not using lawyers. They do so primarily by providing upfront, transparent and affordable prices. They are also conveniently located in high foot traffic areas such as inside a Walmart. They are open seven days a week and into the evenings on weekdays. This enables individuals to consider addressing their legal needs as a part of their day-to-day errands. This level of accessibility diminishes the idea that legal services are only for the rich and elite or large corporations. Basic legal services can be seen as every-day necessities. Legal services delivered in this way decreases the potential for future conflict that often arises with improperly drafted wills, contracts, and various other DIY legal documents.

In a nutshell, Axess Law is providing legal services to those individuals who would otherwise not use any legal services. They are increasing access to justice.

A story of success

Axess Law opened their first location in June 2013. Now, just three years later, they have expanded all across the Greater Toronto Area, and have 12 locations in operation. They have reported a 634% increase in sales over the past two years and are talking about expanding across Canada. Axess Law has been featured in various publications such as the Financial Post, the Financial Times, and the Canadian Lawyer Magazine. Lena Koke, one of the co-founders of Axess Law, was recently named a Rising Star to Watch in the PROFIT/Chatelaine W100 ranking of Canada’s top female entrepreneurs. These are all strong indicators of success for Axess Law’s business model.

A model to adopt in other areas of legal practice?

I have a lot enthusiasm for the advent of a law firm like Axess Law. I think it brings legal services to that large gap of individuals who cannot afford “bespoke legal services” and who make just enough to not qualify for legal aid. Everyone needs legal services and those who have been left out for too long are finally being addressed.

Of course, many questions arise with this mode of practicing law. This truly is commoditizing legal services and questions of quality and ethics, amongst other concerns, come along with it. However, is it really a bad thing to have a basic will prepared and reviewed by a lawyer, when the alternative would be to have no will at all or a DIY will? I think Axess Law strikes a good balance in this regard by referring more complex work on to other firms.

Do you think there is any room with this model of business in other areas of legal practice? Could this “Best Retail Practice” thinking be applied to litigation and more complex legal transactions?

(Note that Axess Law has recently expanded their service offerings to handle small claims litigation – if anybody can shed some light on how they work out the pricing for these services to make it affordable and predictable for their clients, please share.)

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Transitions

Let me give you an image of me as a starting-out lawyer.  I’m on the phone with a client – a terrifying proposition in itself.  Client is talking about something incomprehensible (some Wall Street acronym or something) and assuming I not only know what it is but have an informed and expert opinion about the thing as it relates to the client.  I am googling this thing while on the phone, hoping the client can’t hear me typing.

Transitioning to law school to practice was like that.

One of the reasons L21C exists is that I wanted to try to fill what I think is a gap in legal education in preparing students for this transition, from law student to professional.  Law school does not provide students with much understanding of or information about the practicalities of practice, or about what the ecosystem of the legal services world is like.  It’s a big chasm indeed from pondering the significance of peppercorns to billing, spreadsheets, attempting to tame clients, navigating the internal politics and ego-bruises of working in multiple teams, and googling financial jargon as quietly as possible.

I often hear that it’s not an appropriate goal for law school to prepare students to be “practice-ready,” that there is no substitute for real-world experience and hands-on training.   As far as it goes, I think this is true, even just obvious.  It doesn’t follow, though, that law school can’t do more to prepare students for the transition to practice.  We can, and we should.

That’s the aspiration of L21C: to make students, if not “practice-ready,” at least a bit more ready for the challenges, surprises and mysteries of the coming transition to practice.  To demystify the mysteries, make at least some of the surprises less surprising, and, I hope, stir up some excitement about the challenges.

L21C is also transitioning this year.  Last year it was a completely brand-new course, still a prototype really, and I really was not sure what to expect.  This year is … well, honestly not that different, but it’s no longer completely brand new and I have a little bit more idea what to expect.  Last year’s class was a fantastic group who did some truly inspirational work.  Therefore, my expectations are very high.  I’m looking forward to equally great things from this year’s group, possibly even greater.  Go on, challenge yourselves!

The design of the course is substantially the same as it was last year, but there are some modifications.  The first few weeks are more structured, with fewer guest speakers and more lectures and activities that I planned.  In the later weeks we have many really amazing guest speakers, a panel, a field trip to Kamloops Innovation Centre, and plenty of time built in for teams to work on their LawHacks projects.  The idea is that in the first part of the semester students will get a solid understanding, from the lectures, readings and class activities, of the themes we are covering, and in the later part of the semester the group will be very well equipped to engage with the wonderful leaders and thinkers who are joining us as guests.

Of course I can’t end a post about transitions without mentioning the central focus of this course, the Big Transition: what’s happening to the profession itself.

Richard and Daniel Susskind, the authors of one of our course books (The Future of the Professions), say that the legal world “will change more radically over the next two decades than over the last two centuries” and the legal profession is “on the brink of unprecedented upheaval” (pp. 66-67, internal citations omitted).

Jordan Furlong, writing in the Canadian Bar Association Legal Futures Initiative publication Do Law Differently: Futures for Young Lawyers – another of our course texts – says “[a]lmost everything about career choices and employment options for new lawyers is in flux,” and that the generation of lawyers entering practice now “has both an obligation and an opportunity that its predecessors never experienced.”

David Scott, the co-chair of Borden Ladner Gervais, has said that the lack of access to justice for ordinary people is the legal profession’s equivalent of global warming.

These are the big, systemic transitions that we are going to learn, think and share ideas about in the course.  I hope that the discussion will carry on outside class – and will engage the wider community.  That’s what the blog is for, and I’m really excited to read posts and comments by our new class of L21C partners, as well as everyone else who wants to join the conversation.

This time of year people often say that September, not January is the real new year.  It’s a time of transitions.  Here we go!

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Showcasing Student Writing: BC’s Civil Resolution Tribunal

L21C has been an unconventional course in many ways, but the students (partners) did do one pretty traditional assignment: a good old legal memo.  There were a couple of twists, though: the memos were written collaboratively by the student groups, and they were also set up as work product for a client on which all the time had to be tracked and billed using Clio.

All the L21C partners reviewed and commented on one another’s memos, and finally voted on which memo was the best on each of the two assigned topics.

Here is one of the winners: a memo outlining how BC’s new Civil Resolution Tribunal works, from the point of view of a poverty law clinic looking at how this new initiative can enhance access to justice.  For the purpose of this assignment, the (fictional) clinic was the firm’s client, seeking advice on its options for setting up a new consumer law clinic using the Civil Resolution Tribunal – an artificial set-up, but not completely outlandish, as it is not hard to imagine a law firm helping out a clinic on a pro bono basis with this kind of analysis.  As we learned from guest speaker Lawrence Alexander, consumer problems are among the most common legal difficulties people need help with.  And the CRT is supposed to make it easier, faster and cheaper to deal with these small-claims disputes, compared with going to court.

The memo follows.  (Please note that this isn’t legal advice!)

 

November 4, 2015

To: Street Legal Services

Re: Creation of a New Consumer Protection Clinic

The purpose of this memo is to advise Street Legal on the creation of a new consumer claims clinic through the Civil Resolution Tribunal. Following a summary this memo will look at (a) key relevant legal provisions, (b) a proposed structure and (c) ways to maximize access to justice.

 

Summary

The new clinic cannot advise clients on constitutional questions or human rights violations as the tribunal lacks jurisdiction to deal with these matters. Further, before agreeing to represent the client the clinic must ensure that the client is not engaged in litigation on the same matter. Unless a client has impaired capacity or is a minor the client is expected to represent themselves before the tribunal. Where the client is a minor or impaired a lawyer (not a law student) may represent the client before the tribunal. Further, a lawyer must be available to supervise the activities of non-lawyers, the degree of which to be determined by the clinics staff.

The structure of the clinic will be divided into two tiers: case management phase and tribunal-hearing phase. A minimum of two lawyers will oversee operations of each tier. Under the first phase, a student and lawyer will assess the client’s case and based on complexity determine how the file will be handled. If the client’s file progresses to the second tier the client will be prepared for the hearing.

To promote access to justice, it is recommended that the clinic be open twice per week (one weekday and one day each weekend) for appointments and drop-ins. For flexibility purposes, clients may have the option of scheduling an appointment outside of the regular hours. Visible minorities will be given priority. To encourage education on the issues associated with consumer protection it is recommended that the clinic provide free seminars to educate students and lawyers.

A. Legal Provisions

In starting the new clinical program Street Legal must refer to the Civil Resolution Tribunals Act[1] and the Law Society of British Columbia’s Code of Professional Conduct.[2]

The Civil Resolution Tribunal has specific rules on the types of cases it will hear. The tribunal does not have jurisdiction to hear constitutional questions (including Canadian Charter of Rights and Freedoms[3] questions) or questions on conflict between the Human Rights Code[4] and another enactment.[5] It is imperative that the clinic takes cases that conform to these rules. Additionally, a party cannot request a tribunal resolution if they are party to a court proceeding on the same matter.[6] The clinic must ensure that no clients are engaged in litigation before agreeing to advise them for a tribunal hearing.

It is expected that the party will represent themselves before the tribunal. However a lawyer may represent a party before the tribunal where the party is a child or is of impaired capacity.[7] For this reason, a lawyer from the clinic must be available. Only lawyers are permitted to represent clients that require representation, a law student cannot represent anyone at the tribunal.[8] As stated above, the clinic will need to have a lawyer available in these instances.

 

The involvement of a lawyer is also required under the Code of Professional Conduct, which stipulates that a lawyer must supervise the activities of a non-lawyer.[9] The amount of supervision required depends on the complexity of the case, and should be determined by the clinic’s legal staff. It is possible for lawyers to delegate tasks to non-lawyers working at a legal clinic, but this should be monitored closely as the clinic is new and will require direct input from lawyers at its inception.

B. Advice on Structure

It is recommended that the clinics lawyers be directly involved in its creation by supervising the work of the clinic staff (as is required by the Code of Professional Conduct[10]). This will increase the likelihood of its long-term success.

As the tribunal is a new venue for resolving disputes the specifics of how it will operate are still unknown. Experienced lawyers are in a better position to address any initial issues of the new tribunal and clinic. When appropriate the supervising lawyers may be able to delegate responsibility to other staff members.

We propose that the structure of the designated consumer claims clinic be divided into two tiers: (1) case management phase[11] and (2) tribunal-hearing phase.[12] We recommend that a minimum of two lawyers be assigned to each tier to oversee its operation. Ideal candidates for these positions would be lawyers with direct experience in dispute resolution and tribunal work to provide big picture knowledge of the tribunal’s operation.

Under this recommendation, when a client enters the clinic he or she would undergo an initial assessment with a student(s) and lawyer from the clinic’s first tier to discuss their case/issue. After the initial assessment the lawyer and student(s) would collaboratively decide whether the student(s) is capable of representing the client on the matter alone, or if the matter is sufficiently complicated so as to require the lawyer to oversee the file directly. This decision would require a discussion of the complexity of the file as well as the student’s experience and confidence level. At this initial meeting it is important to explain that the tribunal is unable to hear constitutional questions (including Charter questions) or issues dealing with the Human Rights Code.

Once it has been determined who will take the lead in overseeing a specific file (student(s) or lawyer) the client would be informed of the decision and work directly with the assigned representative in preparing for the tribunal hearing. If it is determined that the student can take the lead, they will be in charge of interviewing the client, drafting motions and generally preparing the case for the tribunal hearing. In this case a supervising lawyer would directly oversee all work completed by the student and remain on hand to advise whenever necessary.

If the client’s case makes it to the second tier of the clinic’s program, the tribunal-hearing phase, it is recommended that the representative from tier 1 explain the process to the client; including the general expectation that clients represent themselves. If the client is unable to represent themself (age or impaired capacity) a lawyer from tier-two would be informed of their need for representation at the hearing.

It is suggested that the student assigned to the file would not change as the file moves from tier one to tier two to facilitate a smooth transition and provide clients with a consistent contact person. However, since the lawyer overseeing the client’s file may change from tier one to tier two, all representatives must be versed on each cases details. The clinic will hold monthly “case briefing” meetings (law students and tier lawyers discuss tribunal cases) and ensure detailed file progress is recorded.

The monthly “case briefing” meetings would serve two purposes: (1) provide an opportunity for tier lawyers to ask questions about the client file and (2) provide students with the opportunity to discuss each case and receive lawyer feedback.

C. Access to Justice

We recommend that the clinic have flexible hours to accommodate low-income clients who may have difficulty accessing the clinic during regular work hours. To accommodate this we recommend that in a given week the clinic should be open for a minimum of one day during the week and one day on the weekend. The clinic may also wish to offer drop-in appointments, dependent on lawyer and student availability, to increase access to clients who have little notice with their work schedules.

Similarly to other legal clinics, we recommend that particularly vulnerable persons be given priority. This includes, but is not restricted to, immigrants, visible minorities and senior citizens. Lastly, we recommend that the clinic consider providing semi-regular seminars on issues such as self-representation. These discussions would be of value to both the clinic and the community at large. As with all our recommendations, the feasibility of such may be determined once the clinic is running.

Sincerely,

 

New Age LLP

 

[1] Bill 44, Civil Resolution Tribunals Act, 4th Sess, 39th Parl, British Columbia, 2012.

[2] The Law Society of British Columbia, Code of Professional Conduct, British Columbia: Law Society of British Columbia, 2013 [Code of Professional Conduct].

[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[4] Human Rights Code, RSBC 1996, c 210 [Human Rights Code].

[5] Supra note 1 at cl 3(2)(a), (b).

[6] Supra note 1 at cl 4(3), 5.

[7] Supra note 1 at cl 20(1), 20(2)(a) – (c).

[8] Supra note 1 at cl 20(4)(a), (b).

[9] Supra note 2 at s 6.1-1 (1).

[10] Ibid.

[11] Supra note 1 at cl 17.

[12] Supra note 1 at cl 2(3)(b).

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Artificial Intelligence: Shaping the Future of Law

I very much enjoy Sci-Fi movies about artificial intelligence, but I am not particularly keen on being replaced by a machine that can spew out better legal arguments in a milli-second based on an algorithm. The majority of our class discussions have focused primarily on technological innovations in the legal field. Artificial intellegence has been hailed as the future of law. It’s all very exciting, until the foreboding feeling sets in and you’re reminded that not only do you have to compete with 4.0 Bobby for a job, but with a machine as well. According to Michael Cross in his article, Role of Artificial Intelligence in Law, “ a computer is as fresh and alert at 2 am as it was at nine o’ clock the previous morning.” Yeah, well, no arguments there. Computers will always be faster, more efficient and accurate at any given time of the day.

The abstracts from the 14th International Conference on Artificial Intelligence & Law sum up the relationship between law and artificial intelligence eloquently. Both fields are involved in the process of creation. AI systems are built, experiments are designed and paradigms are replaced. In law, legislation is drafted, precedents are set and beliefs are balanced. Both fields struggle with the complexity of modeling human behaviour. AI aims to recreate human behaviour, while the law intends to drive human behaviour. The meeting of law with AI was inevitable. But where does that leave the plethora of graduating law students and lawyers?

Throughout this class, we have all been reminded of the concept of the “legal sherpa” and helping the ordinary lay person navigate the convoluted path of the law. A more refined role for AI in law is to provide strategic legal guidance. Programs such as ROSS a digital legal expert, built on IBM Watson helps attorneys with their legal research based on plain word searches. This serves as a valuable tool to help guide lawyers in their everyday research. In the end this will make legal profesisonals more effective because they will be able to complete their tasks more efficiently therefore charging the client less for services.

London firm Hodge Jones & Allen has pioneered a predictive model of personal injury case outcomes to assess the predictability of their current caseload. The program will assist the firm in determining which cases have a greater chance of success, therefore allowing the firm to direct their client towards either settling or proceeding with a claim. This is an example of a legal technological advancement in action and in the future personal injury firms and perhaps others as well, may greatly benefit from using such programs.

This new technology will not hinder or replace legal professionals at all. In fact, I see it helping to make the jobs of lawyers easier and more enjoyable. It will also help them bring a wider array of services to their clients in a quicker and more streamlined manner. These advancements will thrust lawyers into more advocacy-based roles because those types of positions cannot be fulfilled by AI, at least not for now. In conclusion, I do not believe that lawyers will ever fully be replaced by AI but it can serve as a useful tool that can better the practice of law.

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Money Can’t Buy Me Happiness… But It Can Buy Me a Boat

If you were to play a game of phrase association with a group of lawyers (and law students for that matter) and give them the phrase “mental health”, I would posit that many of the answers would deal with clients. You would be likely to hear many things: not criminally responsible, fitness to stand trial, and other job related answers.

The troubling part of this thought experiment is that lawyers (and law students) have a strikingly high occurrence of mental health issues but would be very likely to point to the mental issues of others. As is pointed out in the New York Times article by Douglas Quenqua, lawyers are over three-and-a-half times more likely to suffer from depression. The reasons and causes for this are unknown but oft hypothesized. The fact that getting into law school (I would argue it starts even when trying to get into law school) results in an immediate spike in the likelihood of developing depression is a scary proposition. I’m sure that many students understand that they are getting into a difficult profession and one that involves a great deal of stress.

There is something to be said for the fact that lawyers are among the highest paid professions. There is an allure, a draw, and something to be said for the idea that lawyers get into the profession to make more money than they might in another field. This is possibly done at the expense of some personal relationships and free time. Most lawyers go into the job with open eyes and decide to do it despite the downsides.

Lawyers are often of a certain personality type, and I would argue that this personality type is also the reason why lawyers have a higher risk of depression. They are less likely to admit there may be a problem, less likely to seek treatment because of it, and more likely to continue trigger behaviours that exacerbate depression symptoms (read: stress out and drink). Too often depression is seen as a weakness instead of the chemical imbalance that it truly is. The chemical receptors in the brain that allow you to feel happiness do not connect as frequently in a person that suffers from depression.

Quenqua’s main thesis of his article was that lower paid lawyers reported being happier than the more well paid legal professionals. He states that lawyers in the public sector (public defenders and legal aid lawyers) were more likely to report being happy. The most likely rationale for this disparity between public and private is that private sector lawyers are far more likely to be working longer stressful hours. One aspect of public sector and in-house counsel legal work that is often touted as a recruitment tool is that of work-life balance. While not conclusive I believe this is because the expectations of both hours and “billable” work is reduced. As a corollary, the public service lawyers drank less than their higher income counterparts; as noted earlier, alcohol is a depressant. The alcohol may be a “chicken or the egg” argument; the higher-paid lawyers drink more, thus resulting in more unhappiness, or the unhappiness triggers more drinking.

I also take issue with the program at George Washington university, when attending law school many students are unsure of what sort of practice they will be in when they graduate. This is true of most students and speaks to the variety of legal work out there; however, the other major factor at work is the uncertainty of the job market. Many lawyers report finding a firm that they liked following graduation and the firm having an opening or a need in one field or another and “ended up doing x”. I would suggest that while giving students a taste for all the different opportunities is noble, it may also result in a student getting their heart set on one potential stream (abandoning a more broad course load), come out of school seeking only one type of opportunity, only exacerbating the problem of finding a job after law school.

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The Future Of The Legal Education: Specialization Or Degradation Of The J.D.

As the legal field continues to expand, general practitioners are expected to know more in their respective fields to better assist their clients. A lawyer is expected to enhance their knowledge by keeping up with the evolution of the legal sector. Harry Arthurs recognizes the dangers that future lawyers may face in The Future of Legal Education: Three Visions and a Prediction.

He suggests a possible option where “The bar may one day recognize not just one class of members, but many. Members of each class would have different educational credentials…that general practitioners will one day be licensed to appear as advocates in certain tribunals and the lower courts, and to do routine real estate transactions, simple incorporations and uncontested divorces—but not undertake appellate litigation, patent applications or tax planning”.

He further elaborates “They might offer a skills-based one-year degree for paralegals, a stripped-down tow-year ‘basic’ degree for general practitioners, an enhanced four year degree for specialist practitioners, and conversion courses for those who want to upgrade their credentials”.

On the one hand, I can see this as a form of specialization in a specific area for law students. Those that know what area of law they want to practice can choose to study that, right from the beginning while avoiding all the unnecessary courses that they will never use for their chosen area of practice.

However, on the other hand I see this as undermining the value of legal education and hence a J.D. By creating this separation in the legal education, many of the basic competencies will be omitted from one’s legal education. On a basic level many of the different fields of law interact with each other, and competencies in all these areas are crucial for a practitioner to come up with the best solution for their clients.

There is obviously a wealth of knowledge available in studying law. In my opinion, due to the enhanced level of education required to sufficiently practice in each specific area of law, I think in the future, a LLM in the chosen area of practice will be mandatory after a JD, in order to obtain an articling position in the desired field.

With each area of law expanding everyday, I think it would be ridiculous to cut down on the legal education. The only way to keep up with the evolving nature of the legal sector is to increase the education required, and thus satisfying the necessary requirements of becoming a competent practitioner. Of course, this is just my view.  What do you think are some ways our legal education will evolve to better accommodate us in being competent in our areas of practice for the future?

 

 

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Access to Justice in Canada: Students with high hopes to help the low-income

“[Canada is] increasingly failing in our responsibility to provide a justice system that [is] accessible, responsive and citizenship focused.”

The above was a statement by our Chief Justice Beverley McLachlin of the Supreme Court of Canada, about the inability for Canada’s families to obtain affordable legal counsel. The Chief Justice has also stated that “legal-aid funding and coverage is not available for most people and problems, and the cost of legal services and length of proceedings is steadily increasing”, and that “statistics show that people who get legal assistance in dealing with their legal problems are much more likely to achieve better results than those who do not.”

As Canadians, the majority of us believe access to justice is a fundamental right. Contrary to this belief, Canada is witnessing a gap between the fundamental right and the stark reality that the wealthy the are the ones that can afford a lawyer’s legal services. With specific reference to British Columbia, cuts to BC Legal Aid have taken a toll on access to justice, especially for those with low-incomes. A list of cuts from 2005-2010 can be found here.

In 2013 the Canadian Bar Association released the ‘Reaching Equal Justice Report’. The report states that there is a need for more federal funding for civil legal aid. It says that the Canadian Bar Association will reach its goal for Canadians living at and below the poverty line to be eligible for full coverage of essential public legal services by 2020. Additionally, the report puts forth that all law schools in Canada will have a student legal clinic to help low-income people by 2020. The Canadian Bar Association advises that all 31 targets mentioned in the report are expected to be completed by 2030. A video about the proposed legal aid system can be watched here.

It is important to note that change does not fall solely on governments or the bar association. As the report says, law schools and other stakeholders must be involved. It is obvious that “tinkering” or making a few changes here and there will not be enough. The report states that “the civil justice system is too badly broken for a quick fix. People fall between the cracks at an unacceptable cost. Injustice is too deeply woven into the system’s very structure for piecemeal reforms to make much of a dent.”

It is obvious that now is the time to use the resources we have, like our Canadian law students, to help improve Canada’s access to justice for low-income people. With 18 law schools in Canada teaching common law, these numbers have the potential to create a significant positive difference. If that is not motivation enough, pro bono work by law students helps not only those who find themselves facing a legal conundrum, but also the law students involved. The students typically receive training to be more understanding, companionate, and patient, and in turn become more competent lawyers to enter the work force.

From what I could find, only one Canadian law school (Osgoode Hall Law School at York University) has what they call a public interest graduation requirement. If pro bono work by law students is part of the answer, why are we not making full use of this potential resource? Is it lack of resources, lack of incentive, or lack of an enforced requirement?

In correspondence with TRU Law’s Professor Dhand (who is currently the Project Leader on a Law Foundation Large Project Grant for a poverty law clinic), she informed me that the school is implementing the Community Legal Advice Clinic in 2016. The Community Legal Advice Clinic will assist low-income earners in the Kamloops and Interior region with legal problems – initially in the area of residential tenancy law and housing issues – with direct client services. The clinic will run approximately two to three days a week and can be found at the Centre for Seniors Information in Kamloops, BC. Additionally, Professor Dhand advises that TRU Law has the Legal Information Service, located on campus, where she supervises and mentors 60 student volunteers each year, who provide legal information, resources, and public legal education workshops in all areas of law. Lastly, Professor Dhand also teaches TRU Law’s Community Lawyering course where students receive instruction about the substantive and procedural aspects of community lawyering such as client interviewing, strategic litigation, legal research, and ethical issues.

It is clear that TRU Law is taking steps towards improving the ability for low-income British Colombians to access justice, well before the Canadian Bar Association’s goal of 2020. Are there additional steps that TRU Law and other law schools can take to facilitate access to justice for the low-income? Should TRU Law’s Community Lawyering class be a required course for students?

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