Among lawyers making litigation and mediation affordable is usually referred to by the old-fashioned expression of “access to justice”. That expression appeared in three recent readings – a Productivity Commission report, a blog post and a new book. They confirm what is known and suggest improvements discussed in this post.

The official report is “Access to Justice Arrangements“, a 92 page draft report of the Australian Productivity Commission released in April 2014.

The report contains restrained or diplomatic commentary noting the imperfections of the options available for dispute resolution in Australia. It notes obvious justice problems in disputes. Here it notes the substantial bargaining power of governments and big business, legal costs and the excessive length of time it often takes to resolve disputes.

The report also recognises subtle points such as this:

“Consumers not only lack the ability to judge when lawyers fail to provide services of a sufficient quality, they also have poor information about whether lawyers are over-investing in quality or quantity (providing gold-plated services).”

“Reading the Productivity Commission report, and submissions made to it, leaves one with the feeling that improvements are needed to the dispute resolution options (it is hardly a system) but whatever is done, due to the complexity of the topic it will remain an ongoing problem.”

The report is a useful search for “making it easier for people to resolve their disputes”. It offers a range of sensible recommendations which include:

  • Litigation budgets and costs management: “In superior courts, it may be more appropriate to adopt a system of costs management, which requires parties to submit and agree upon costs budgets at the outset of litigation, and so cap the amount of costs that may be reclaimed by the successful party. Such a system is currently used in English and Welsh courts.” (p. 19)
  • Increasing court fees (in part to fund improved court IT): “Given the substantial private benefits that accrue to parties using court services, the Commission is recommending significantly increasing the level of cost recovery in most courts.” (p. 37)
  • Pre-litigation information sharing: “Facilitating early exchange of information has the potential to reduce the costs and time associated with some litigation processes.” (p. 56)
  • Costs transparency: “Cost Assessment Rules Committees (and their equivalents) should develop and publish guidelines for assessors relating to the inclusion or exclusion of categories of charge items in cost assessments.” (p. 64)
  • Fast track litigation: “Courts should apply the following elements of the Federal Court’s Fast Track model more broadly:
    • the abolition of formal pleadings
    • a focus on early identification of the real issues in dispute
    • more tightly controlling the number of pre-trial appearances
    • requiring strict observance of time limits.” (p. 72)

Reading the Productivity Commission report, and submissions made to it, leaves one with the feeling that improvements are needed to the dispute resolution options (it is hardly a system) but whatever is done, due to the complexity of the topic it will remain an ongoing problem.

Access to justice in United States

legaltech systems for adding value

Neota Logic’s graphic setting out a software-driven value proposition

Supporting that impression was the second reading, this time from the United States. An excellent Neotalogic blog post last week titled Access to justice and technology: everyone, anytime, anywhere. It contains this steamroller paragraph listing the many things that are needed for improvements.

“Delivering access to justice demands change and action on a very broad range of initiatives—pro bono work by the private bar, fair and adequate funding of legal aid, collaboration among all system participants (clients, lawyers, courts, agencies, NGO’s), legal education (and its financing), e-filing and case data standards, court forms, court interfaces to self-represented litigants, unbundled legal services, virtual law practice, multistate practice, law practice ownership and investment, limited practice licenses, unauthorized practice of law rules, lawyer advertising rules, and lawyer discipline. All of these are hard problems, and some of the most sensible solutions are very controversial.”

Access to justice in United Kingdom

Both the Productivity Commission report and the Neotalogic frame the access to justice issue as being about access to dispute resolution. This is myopic.

So it was good to have the third reading take multiple perspectives. One theme in Richard Susskind’s book Tomorrow’s Lawyers (Oxford, 2013) is the necessity for lawyers to move towards new ways of working. There are many aspects to this. Susskind is the IT Adviser to the Lord Chief Justice of England and Wales and holds professorships at the University of Oxford.

Susskind has fun cooking up a list of alternatives to the artisan practice office mode of operation. That’s the twentieth century mode seen on TV law shows, it’s also the mode for which law schools (with very, very few exceptions) are designing lawyers. This is at a time when in the twenty-first century we see new modes of operations such as these described by Susskind:

  • In-sourcing – work done in-house, eg in-house counsel does drafting
  • De-lawyering – work done by non-lawyers
  • Relocating – work done in a less costly home country region
  • Near-shoring – work done in a less costly region abroad but in same time zone
  • Off-shoring – work done in a less costly region abroad
  • Outsourcing – work done by a third party, in law an example is legal process outsourcing
  • Subcontracting – work done by a third party in similar industry, eg another law firm
  • Co-sourcing – work done in shared services or facilities
  • Fixed term contracting – work done by contractors engaged for a fixed duration
  • Home-sourcing – work done by people who work from home
  • Open-sourcing – work done in a commons, segmenting public and private interests
  • Crowd-sourcing – work applying the wisdom of the crowd, ie volunteers
  • Computerising – work that’s systematised, packaged or commoditised done by computers
  • Solo-sourcing – worked done by individual specialists, eg law professors.

As regards the problem of law being not affordable, Susskind states: “…only 5 per cent of British people are effectively excluded from the Internet, whereas the majority of citizens in England and Wales are unable to afford most of the services of lawyers and of the courts.” Susskind offers many solution. This is one of them.

“It is my contention that better access to justice should embrace improvements not just to dispute resolution but also to what I call dispute containment, dispute avoidance, and legal health promotion.

Dispute containment concentrates on preventing disagreements that have arisen from escalating excessively; and it is lawyers as well as the parties themselves who need to be contained.

Dispute avoidance is a theme that in-house lawyers often raise with me: they speak of legal risk management, or as I put it, putting a fence at the top of a cliff rather than an ambulance at the bottom. …

Legal health promotion extends beyond the preventative lawyering of dispute avoidance to ensuring that people are aware of and able to take advantage of the many benefits, improvements, and advantages that the law can confer, even if no problem has arisen.” (p. 85-86)

In our firm as in many, one obvious reason for advising carefully, and drafting contracts and other legal documents with rigour, is to help clients avoid disputes. The aim is to protect clients against the costs and inefficiency of the dispute resolution “system”, something only understood well by insiders and experienced litigants. These recent readings confirm the need for vigilance.

Contact us with any questions or requests.

Noric Dilanchian