Tag: Canada

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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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Technology and the Aging Client

Much of the conversation has been on the impact of technology on the delivery of legal services and the changes that the profession will undergo in the coming years. Extremely relevant points have been made and discussed in both the partner meetings and blogs, demonstrating that the firm is live to the evolution that the profession is undergoing. One aspect that has been somewhat more on the periphery has been the societal changes behind the push for transformation.

I had the opportunity to attend and speak at the Canadian Elder Law Conference this past week and gain a better understanding of the practical realities that are facing the profession in light of a shifting demographic. For the first time in Canadian history, the percentage of the population over 65 is greater than the population under 15. While we have been focusing largely on the increase in technology that the profession has at its fingertips, there are a growing number of potential clients that will inevitably need our services but may not understand the technology we will be employing. This requires those of us that will be working with elders to appreciate the impact of technology on this growing demographic.

I do not dispute that a willingness to innovate is going to be essential, nor do I suggest that those 65+ are incapable of using or appreciating technology. I do think, however, that as we seek to integrate new methods and technologies that we take into consideration the impact that may have on our clients. Creating more affordable services will greatly benefit our senior clients and, as the baby boomers get set for retirement, this portion of the population will be facing a society that is increasingly more tech savvy.

We must be sure to balance our reliance on technology with the very personal service that our aging clientele has become accustomed to. It cannot be our approach to either assume our client understands technology or require them to familiarize themselves with it in order to benefit from an affordable service. Nor should we assume that technology will be able to replace the personal aspect of our profession, such as the interview in which a lawyer conducts an assessment for testamentary capacity. It is this personal interaction that sets us apart from machines such as IBM’s Watson. And it is this interaction that clients appreciate, along with getting the job done for a fair price.

How can we balance our growing use of technology with an aging population?

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Technology and Outsourcing – a Change in the Legal Market?

In Blueprint for Change, William Henderson states that the future is bleak for law graduates in the United States because the job market is increasingly uncertain. He writes, “our current legal education is likely to enhance the human capital of our students, but in the emerging economic environment, the benefits of that education are insufficient to pay back its cost […]. The issue is whether the education we offer is able to adapt to the rapidly changing legal industry.”

According to Henderson, the current market is unable to sustain the large numbers of law graduates, and while law schools are having some difficulty filling seats, which ultimately leads to difficulty in finding professional employment for their graduates, they continue to offer attractive financing packages to perspective students, which increases enrollment (and ultimately increases the debt load of graduating students). Additionally, while law schools train students via traditional education models, companies that offer legal products and services (but are not classified as law firms) are becoming increasingly attractive alternatives to hiring lawyers. This in turn decreases the demand for lawyers and leaves many law graduates with an inability to find work in private practice. As Henderson states, “by removing the lawyer from the value chain, cost goes down, quality goes up, and service delivery time becomes faster.”

While Henderson’s research is based on American law schools, I believe that in an era where the legal profession is changing to accommodate self-represented litigants and the entry of ‘do-it-yourself’ products on the legal market, this research adds an extra layer of understanding when it comes to envisioning our futures as lawyers. As my colleague Salman outlined in his blog post “Surviving the Technological Threat,” we have been hearing from our speakers and professors throughout the semester that our current method of practicing law is in danger of changing significantly with respect to new technologies and new methods of outsourcing legal work.

Henderson suggests deviating from the traditional structure and tailoring legal education to fit labour market outcomes, but this does not seem entirely practical for Canadian law schools. While the Canadian legal market is increasingly saturated, we have yet to experience the demise of traditional legal education as Henderson sees it, likely because we have far fewer law schools than the US, and despite our tentative adherence to Maclean’s yearly rankings, our country has yet to implement a tier-based system. As Salman also points out, it is unlikely that the introduction of new technologies will change the legal landscape as a whole. Rather, these technologies will likely assist lawyers to provide more efficient legal services, particularly if lawyers are free to concentrate on more complex legal issues that are outside the scope of these products and technologies.

 

 

 

 

 

 

 

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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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The Practice-Ready Lawyer

Harry W. Arthurs, renowned Canadian labour lawyer and law professor, spoke to the University of Alberta Faculty of Law about the future of law schools and legal education in Canada in his address titled “The Future of Legal Education: Three Visions and a Prediction.”

Arthurs begins by outlining differing views of the core function of law school, namely the production of “practice-ready lawyers”, of “tomorrow’s lawyers”, and of being a leader in the “creation and transformation of legal knowledge, legal practice, and the legal system.”

From this address there are several points I would like to comment on. First, Arthurs strongly critiques the view that law schools should be producing “practice-ready” lawyers, assuming that “practice-ready” equates to omni-competent. As the legal field is highly specialized and stratified, Arthurs suggests that no law student will ever be “practice-ready” upon graduation from law school. While I agree with the assessment that no law student (or lawyer for that matter) will ever possess all of the substantive knowledge to be competent in every legal field, I disagree that is what is necessary to be ready for practice. While an understanding of general legal principles and substantive law are required competencies  in one’s practice, they are attainable when one possesses the appropriate skills listed in Chapter 3 of the Code of Professional Conduct for BC (i.e. legal research, analysis, application of the law to the relevant facts, writing and drafting, problem solving, etc.). It is my opinion that the possession of these skills and competencies is what makes one “ready” for practice. In addition, I believe that law school is exactly the place where we should be taught these skills.

Arthurs goes on to argue that skills-based training is not enough to prepare students for legal practice, and a “preparation for practice” based curriculum is far inferior to one that emphasizes “thinking skills, theory and inter-disciplinarity”. While intellectual ability is certainly a coveted attribute, it must be applied practically to accomplish anything. Even Arthurs agrees that lawyers must “think like human beings” to avoid harming “themselves, their clients, the reputation of the bar and the effectiveness of the legal system.” Lawyers need to be relevant, relatable, and able to apply their intellectual training practically. It is my opinion that including some form of skills-based training in law schools helps accomplish that.

Finally, I would like to address Arthurs’ proposals regarding changes to the structure of law school. He proposes a model in which general practitioners can obtain a “stripped-down two-year ‘basic’ degree”, and “higher level lawyers” would take a four year enhanced degree. Arthurs’ argues that this would save time and money for general practitioners while fitting the diverse needs of students wishing to practice in more specialized fields. While this restructuring surely has its benefits, I suggest that it might have adverse affects on “access to justice”, an increasing problem. Creating a hierarchy of lawyers may decrease costs to individuals with basic legal problems, but may simultaneously increase the divide between litigants who can afford high-level lawyers. In other words, this hierarchy has potential to further the gap between those who can afford specialized legal services and those that cannot.

In addition, I wonder as to how these changes might impact the servicing of small, rural communities. These communities are already underserved, and those that do set up practice in these areas are typically general practitioners. Why would we make it harder on them to serve their communities by limiting their scope of practice? Canadians are already abandoning legal problems that they cannot afford to address; wouldn’t these changes only exacerbate this problem for rural individuals that would typically only engage with general practitioners?

Arthurs is certainly correct to say there are many changes in store for Canada’s legal paradigm. Subsequent changes to the way we educate future lawyers will certainly be more necessary than ever if lawyers are to remain relevant in society. More than anything, I believe Arthurs is correct to suggest law schools must prepare their students “to think like lawyers, to contextualize and critically evaluate their legal experiences, to adapt to change and, especially, to learn how to learn”. A law student with that education must certainly be “practice-ready”.

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