Wednesday, 7 December 2016

A. Million. Dollars.

Many, many years ago, the City of Vancouver sent out a notice announcing they were going to pave our back lane, and increase the taxes of everyone on the block accordingly. My husband and I were not too happy about this, since we already had a problem with traffic speeding in the alley and felt it was likely to get worse if the lane was paved, and we couldn't see any benefit at all for the increased cost.

There was a process for objecting, and so I set about carrying it out. The first thing was to get signatures of every resident on the block; if I could get enough people to object, we could stop the paving. This is not as simple as it sounds. Most people are only home in the evening, and it was winter, so getting dark early. Our neighbourhood has a bit of a siege mentality due to a high crime and threat rate, so it's awkward door-knocking (or having your door knocked on) after dark. Then there was a high rate of language barriers. Nevertheless, and seven months pregnant as well, I headed out on a number of miserable consecutive evenings, once my husband got home to take care of our toddler, to get the requisite signatures.

It eventually turned out that the City had advised me wrongly that the signatures were required; in fact, they had wrongly put our alley on the roster for paving. It wasn't slated for paving at all because it was not categorized as a residential alley, but an industrial one. Or something like that. Anyway, I'd totally wasted my time and suffered for nothing.

So I sent the City an invoice for my time. I never got paid.

It was a number of months if not years later that I was wasting even more of my time at a community consultation meeting of some sort, that the city staff person who'd been sent out to placate the masses recognized my name as the person who'd sent in the invoice for my time. He seemed to think it was funny. But I wasn't joking. It struck me as eminently sensible that when two departments of paid functionaries couldn't make enough sense of their work to avoid burdening a citizen with an unnecessary duty, they should pay for that time. Personally, if necessary.

I still never got paid.

The idea that bureaucracies could be motivated to be more effective if their budgets had to factor in the time they cost citizens has been with me ever since. I have spent countless hours conversing with employees of school systems and other bureaucracies while they get paid and I don't. What's more, I don't end up getting what I want after the conversation either: the chat invariably consists of me posing a perfectly rational question, idea, or complaint to the functionary and then having to listen to their raft of excuses, defences, deflections, and distractions. At the end, I go home exhausted to the pile of work I left undone to go to the meeting, while they stride jauntily back to their important office, scrutinize their missed phone calls, and submit a proposal for an assistant to cover all this time they have to spend talking to the public. And this interchange is repeated over hundreds of other citizens and bureaucrats. Not only are the citizens not getting paid for engaging in this process that does not deliver our desired outcomes, but also, we are paying the bureaucrats to stonewall us.

It would all be solved if the departmental budgets had to pay the citizens for their time as well. It would be solved even faster if the salaries of the functionaries had to decrease by a percentage point for every increase in the citizen time paid out.

I thought of this old idea of mine again today when I read a report called "The Cost of Justice," by Trevor Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup, and Lisa Moore. It's published by an agency called the Canadian Forum on Civil Justice. Or, if you prefer, le Forum canadien sur la justice civile.

Now, with my little story about lane paving, it may strike you, as it struck me, that we are fortunate to be living in a place where citizens are told things like "the planning department and the engineering department failed to communicate; there was a misunderstanding, and we won't be paving your lane." There are countries where you either don't get consulted at all and can't object, or your tax bill goes up whether your lane gets paved or not, or if you complain too loudly the officials come and take you away. Where the officials would never admit a mistake. Yes, I realize we live in a little slice of paradise here. And that is why I work so hard to keep it that way.

So I appreciate that this report on "The Cost of Justice" comes right out and announces, on the first page, that the project is "funded by a $1 million grant from the Social Sciences and Humanities Research Council of Canada." I really am grateful that this information is so clearly provided.

But that doesn't mean I have to be happy about it. Think about it for a minute. One. Million. Dollars.

And here, by the way, is what this report delivers: "We hope that the results of this study will help to inform important public discussions around access to justice and our collective legal wellbeing." That's the conclusion; the last line in the report. For a million dollars, all that these authors have delivered is hope. And not hope for better access to justice or "collective legal wellbeing," by the way. Just hope that "this study will help to inform important public discussions" about those things.

See that part about the discussions? First, they're bound to cost at least another million dollars. And you know what? To the extent that they include any ordinary members of the public, we won't be getting paid to take part in them. And you know what else? Those discussions aren't going to net better access to justice either. You know why? BECAUSE THESE PEOPLE ARE MAKING OUT LIKE BANDITS WITHOUT ACCESS TO JUSTICE, THAT'S WHY.

Actually, the last paragraph really has to be taken as a whole for its significance to be fully appreciated.

"In addition to the importance of all of these findings to justice stakeholders,
the results of this study should be of most interest to all of us – the public.
Clearly legal problems affect everyone. The implications of dealing with
them, and of not dealing with them effectively, are significant – financially
and otherwise. Access to justice, and in particular the cost of an accessible
(and inaccessible) justice system, needs to become a topic of widespread
public deliberation. As we have seen over the past several decades with
exercise, nutrition, and emotional and physical wellbeing, for example, when
important social issues become matters of widespread public interest and
concern (often through the media and ultimately to the attention of policy
makers and elected officials), significant change starts to occur. Underlying
and informing those debates needs to be sound research and data. We hope
that the results of this study will help to inform important public discussions
around access to justice and our collective legal wellbeing."

What it's important to understand about any public policy arena is that there are two categories of stakeholders: paid, and unpaid. The interests of paid and unpaid stakeholders are totally at odds: the unpaid stakeholders just want the system to be efficient and effective at what it is supposed to do, while the paid stakeholders are vested in not solving the problems or meeting needs because problems and needs sustain jobs. Whatever any paid stakeholder says about how much they care - and I'm sure they do - that is the basis of the incentive structure, and the outcome always follows the incentive structure.

Now, notice what they've done in the first line: they've conflated paid and unpaid stakeholders into one unified, inspired group: the public. In their minds, they - and they are lawyers, who have the capacity to deal with their legal problems with ease, not that they have as many, because people are less likely to create legal problems for lawyers - are just justice stakeholders like you and me, who are in court totally overwhelmed by the mere idea of case law and completely baffled by legal processes. By conflating the groups, they wrap themselves in the virtue of the marginalized legal system victims, and simultaneously shed responsibility for coming up with any answers by putting the task of responding to their million dollar paper on "the public." Keep in mind, whenever something is everyone's problem, it's no one's responsibility. So, with that million dollars, apparently, came no responsibility. That's back on the rest of us.

The next sentence deserves special mention: "Clearly legal problems affect everyone." Now I know my sarcasm is getting out of hand here, but for a million dollars, you'd think they could afford a comma. But that aside, what a staggering insight. That's what we get for our million dollars.

With the next series of thoughts, the paragraph continues to ensure that not one iota of expectation sticks to the authors or the authoring agency. The problem of access to justice "needs to become a topic of widespread deliberation." If you don't mind my asking, looking at all the other topics that already are topics of widespread deliberation, WHAT THE HELL IS THAT GOING TO ACCOMPLISH? The answer is curiously, and depressingly, simple: it is going to generate a whole lot more million dollar grants. And these authors and this agency, with this report on their resume, are going to be first in line for those grants.

I might add that the examples they give, "exercise, nutrition, and emotional and physical wellbeing," are completely different challenges from access to justice, and also aren't exactly inspiring for the successes they are achieving. Exercise and nutrition are personal choices that people have the power to make, unlike legal system behaviour, and as far as emotional wellbeing is concerned, well, there's this youth mental health crisis you might have heard about. That's going well, isn't it?

The deeper we go into the paragraph, the worse it gets. "As we have seen ...when important social issues become matters of widespread public interest and concern.... significant change starts to occur." 

This might be a good time to look at just who these authors and this agency actually are. The Canadian Forum on Civil Justice is "established by the Canadian Bar Association and affiliated with Osgoode Hall Law School." The authors are all lawyers, law professors, researchers, and the like. They are the legal establishment. Creating access to justice is a simple matter of some minimal reforms of the legal establishment. The people writing this report have the power to directly envision and promote these simple changes. But despite the power they have, these people aren't interested in looking or working inwardly to reform the legal establishment. They are interested instead in generating a "widespread.. usually involving the media... and policy-makers and elected officials" movement that just, by some unknown process under a mysterious and magical impetus, "starts to occur."

In case the full infamy of the thing isn't yet clear: these are the policy-makers. The policy makers have taken a million dollars to write a report convincing the public that we have to spend hours of our time and millions more dollars to mobilize the media and create more data to inform.... them. The creators of this paper.

They could just go ahead and make some policy changes already. Policy that would alter the access to justice equation for millions of Canadians, without also demanding more of our time (as "the public") and our money. They could even have come up with a policy suggestion or two and put them in the paper.

They chose not to do so. They couldn't think of a damn thing to do except to start a public conversation.

But they took the million dollars.

Here's a link to the 22 page paper: http://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf

Friday, 18 November 2016

The BCTF decision

The November 10th decision of the Supreme Court of Canada on the BCTF case merges the topics of my two blogs, Education's Gone Rogue and The Court Jester. The BCTF case is the one that drew me into law in the first place as a self-represented litigant. At the foregoing link to my education blog, I have posted a statement about the Supreme Court's decision that explains my background with the case and my intentions to pursue my cause further.

Wednesday, 2 November 2016

A brief primer on the Access to Justice "problem."

I keep seeing dialogue about improving "access to justice" from within the legal system. It is almost always somewhat wide of the point, but I see no value in rebutting each and every speech or blog post I read. Partly, it is not my ambition to make an enemy of every single person in law who ventures an opinion on A2J even if I disagree with them all. But also, tearing down the efforts of others does not build up understanding. 

But what I am going to try to tear down here are the flawed assumptions that are the basis on which many well-meaning initiatives and perspectives on A2J are put forward. Working with flawed assumptions in systems analysis is a bit like using the wrong test in law: you are not going to get the outcome you seek.

Herewith, then, a list of assumption-busters: the fatal flaws in every access-to-justice initiative advanced by the legal system to date.

1. The legal system does not have an access-to-justice problem. The legal system does not have a problem at all. The legal system is doing JUST FINE. 

2. Because the legal system is doing JUST FINE, the legal system is not going to solve the access-to-justice problem. 

3. Solving the access-to-justice problem is not difficult. What IS difficult is solving the access-to-justice problem without disrupting internal fiefdoms, empires, and power dynamics. That is why the legal system is not going to solve the access-to-justice problem. No one ever unbuilds their empire. 

4. To the extent that there are well-meaning, smart people in the legal system who truly WANT to solve the access-to-justice problem and who MIGHT unbuild their empire, their efforts will be sabotaged, undermined, or otherwise neutralized by other people inside the system who are unable to resist the urge to defend their present income stream and power. Even if not immediately, over time the system will recalibrate to its normal power distribution - unless that power distribution is explicitly targeted in an effective way. Naming and criticizing it is not effective. 

5. The longer the access-to-justice issue is worried over within the legal system without meaningful action, the more bureaucracy will be built around it and thus, the more intractable the access to justice problem will become. Increased bureaucratization creates increased internal unity and loyalty to the infrastructure, rather than to the work (in this case the law). Spoiler: mandatory judicial education will be a disaster.

6. What law does have is a quality control problem. The fact that there is an access-to-justice problem being experienced by potential, frustrated, disillusioned customers says that many, many people and organizations within law have not been doing very well at what they are supposed to be doing. This is a complex, networked issue concerning organizations and their internal customers, between retail customers and first-line service providers, and with the end-product providers, namely judges.

7. There are formal and informal power dynamics. Problems can only be solved if the real power in a system resides where it is supposed to reside. So Job One in a system that is experiencing quality problems may be to root out the loci of illegitimate power; the oligarchy of courtiers that inevitably congregates around a seat of power and inexorably turns that power into a mere figurehead. Effective change must root out these informal power saboteurs and re-establish proper lines of authority. Co-operative, multidisciplinary, "all together now" approaches, in other words, are counterproductive in systems where informal power dynamics have gained the upper hand, because they invariably consist of "change" efforts being made by the oligarchy itself. Hint: activist law. 

8. The law is not a service system; it is an authority. As such, the relevant target profession for change is the judiciary, not lawyers. But the judiciary is not a profession because it cannot be held liable for its work. For that matter, lawyers can't either, because litigation is a competition. Competition means winners and losers. And hey, if you lose, you may be paying for both lawyers. The entire language of "access," in other words, is anathema to the rules of the game of law. To create meaningful "access," the whole purpose of the legal system and all its component organizations must come under scrutiny, acknowledging both the strengths of law and the gaps between its ideals and its reality. This is something the princes themselves will never do.

9. There are a lot of incredibly competent, well-intentioned, brilliant people in law who can ramp up performance in their domain within the legal system. Each and every one of them has the capacity to act within their domain and to achieve stellar results. None of them has any right, power, or capacity to act outside of it. Much of the relevant conversation, therefore, has to be about boundaries.

10. There are no silos in law, however. Talk of "breaking down silos" is only a code for making the system stronger, more networked, and more resistant to change. The wagons are already circled against outsiders, and "breaking down silos" is equivalent to merging the wagons into one solid wall. 

I'm going to refrain from providing a recipe for each component organization of the legal system, though I may do so in future. In the meantime, I hope that the above points will provide some language and ideas that are useful, and post some red flags to prevent wrong turns by people who are trying - sincerely, I know - to solve the problems as they see them. 

Lightly edited March 12, 2017; again September 13, 2017.

Tuesday, 18 October 2016

Why legal academics are important

In my last post I was pretty hard on legal academe, especially on its tendency to usurp the public's voice. It is perhaps necessary to explain why this is not a personal attack on legal academics.

Legal scholars have an important role in the legal system, independent of teaching incoming lawyers. I don't know the history as well as one might like to, but it is my belief that legal scholarship has functioned, to date, as a sort of quality control function within law.

It has been written in places other than here that judicial accountability is the flip side of judicial independence. But most of what I have seen written on the subject of judicial accountability basically says that judges hold themselves to high standards, and where they do not, the appeal courts step in. In the event of a conduct problem, there too the remedy is entirely internal to the judiciary.

In a change mindset, we are often so busy looking forward that we fail to examine a system for what it is actually doing before we launch campaigns to change it. That is, I think, what happened when the CJC was formed a few decades ago. And that is why, perhaps, everyone missed the importance of legal academe in judicial accountability.

The idea that the judges would hold themselves to relentlessly high standards without any pressures to do so is absurd; as absurd as the idea that doctors would do so without the threat of malpractice suits hanging over them - and growing awareness of medical error is revealing just how ineffective even that threat is. In law, there is no parallel even to the threat of malpractice.

That said, I do think judges have historically taken their work very seriously and have functioned in an intellectual atmosphere that predisposed to excellence. The impetus to do so came, in part I think, from the fact that, like medicine, law was a life-or-death enterprise. Until the death penalty was abolished in Canada, the stakes in law were high. We know, of course, from the Truscott case that the high stakes did not preclude mistakes. Even then, perhaps, hubris and privilege were taking their toll. Perhaps they always have. Idealizing the past is as dangerous as utopian thinking about the future.

But in the many branches of law where the death penalty has never been an option, as well as in criminal law, there is supposed to be some force that can mitigate or even respond to judicial abuses of power. Scholars are the only legal faction that can offer that response.

In law, judges are supposed to have power, even to have almost unassailable power. One mechanism for the sustenance and exercise of that power is "officer of the court" status. The duties of officers of the court include upholding the court. Judges have supervisory powers over officers of the court. Both those stipulations mean that lawyers, even the most experienced ones, cannot be relied upon to mitigate any excesses of the judiciary; to call attention to laziness, corruption, ignorance, or malfeasance that might merit repercussions - repercussions that, in a democratic system, are supposed to emanate from the political realm.

It is for this reason that the margin between sufficient and excessive judicial independence is razor-thin.

Officer of the court status is an essential component of maintaining order in the legal system. To a degree, as far as I've divined so far, it puts the judge in the same position as umpires and referees: themselves subject to rules, but granted near-absolute power to ensure the game played out under their authority is fair (because law is a competitive sport due to the adversary system).

Officer of the court status dampens criticism, which any system needs to stay healthy. In law, the criticism function is addressed by means of the open court principle, which is generally exercised by actions of the media and the public. But media and the public are not experts.

Expert systems are often granted self-regulatory status on the understanding that the work is so specialized that only fellow experts can determine whether avoidable mistakes have been made. That is why aviation experts, and not judges, investigate plane crashes.

Legal scholars are uniquely able to fill the role of experts. The fact that they are not officers of the court relieves them of the muzzle and duty to uphold the courts that limits what lawyers, court clerks, transcriptionists, and even legal regulators can do. The fact that they are experts in the law allows them to analyze even the most specialized level of work.

When legal academics stick to their knitting (as I advised in a previous post that all legal factions should do), they analyze and debate patterns among cases and the finer points of law within individual cases. Their analysis feeds back into the system as meat for practitioners to chew on: for lawyers to take into new cases and even to allow them to select what cases they take, and for judges to factor into their analysis.  Secondarily, legal scholarship informs the political system - both the people and the leaders we elect - so that (a) laws can be made and changed as needed, and (b) the judiciary can be held answerable where necessary and action taken if the third branch of government escapes the boundaries of its legitimate jurisdiction. The political system, however, is meant to function absent the actual voices of legal scholars: the scholars play their role via the analysis and research that they feed into it. They have academic freedom, not public power.

Third and finally, legal academe has an intake function in which the practitioner realm feeds back into academe the problems and weaknesses encountered in the field. These might include, for example, the recent pressures experienced in the field due to the advent of self-represented litigation, changing rape laws, and the application of private sector labour law to the public sector.

But the give-and-take between scholars and practitioners and the political realm takes place across the boundary that delineates their separate realms. It is always tempting to jump those boundaries; everyone likes to expand their empire and their sphere of influence. But when those boundaries are muddied, each realm suffers and the rule of law becomes unstable. The rule of law, in fact, rests on that tripod of realms, each holding the other somewhat in check. When one realm lengthens its leg beyond what the others can respond to, equilibrium is lost.

The boundary is simple and clear: the role of academe is to listen, digest and critique, and then inform. Any academic voice that is opining or pressuring rather than informing is outside its jurisdiction.

One of the things I find amazing about the law is its breathtaking capacity for nuanced analysis, and the capacity to express the finest distinctions between ideas. One of the most neatly articulated distinctions I have come across is that between exceeding jurisdiction, and declining jurisdiction. That really captures the loss we all experience when legal scholars decide to enter the public realm directly with opinions and beliefs rather than staying in their lane with information and knowledge.

Not only do they exceed their jurisdiction by letting their personal belief system override what they know and have tested from a basis in expertise. In addition, they decline the jurisdiction they have to provide expert analysis of the practical functioning of the field and rob us of the best mechanism we have for evaluating judicial performance in the application of the law.

Without that, not only do they crowd others out of lanes they properly inhabit, but also, the scholars' own lane stays empty. And then we are all bereft.

Sunday, 16 October 2016

No one ever unbuilds their empire

One of the reasons I started this blog is because there is too much to say about law decline/reform from a management perspective for me to say it all on other people's blogs.

But other people's blogs help to identify the gaps in legal system self-analysis, and so posts from the legal world are useful as a starting point for posts here.

A recent post on the law blog Slaw had the Dean of a BC law school sharing thoughts on the burden of student loan debt:
http://www.slaw.ca/2016/10/14/student-loan-debt-a-crisis-for-law-students-young-lawyers-and-far-too-many-underserviced-communities/.

The first commenter, to her eternal credit, nails the main problem with the post in her first line: it is not inward looking. It spends hundreds of words on the issue of student debt without putting one apparent iota of thought into how the actual cost of a legal education might be reduced.

To be fair, even if all the Deans of Law put their heads together in contemplation of how to reduce the cost of law training, they would not find the obvious answer and would do little other than design bandaids; I do not believe it is within the realm of human capability to solve the problem when you more or less ARE the problem. No one ever unbuilds their empire, even when it is oppressive, corrupt, and decrepit.

Oh dear, that is not a nice thing to say. And one of the things that prevents people from saying more things like it is that, like the Dean who wrote this post, institutions that need renewal and replacement are still led by and represented by nice, well-meaning, and very intelligent people. But unfortunately, that saves no one from being a brick in the road to hell.

This is what I posted on that thread on Slaw:

If law is bad, consider the plight of graduating dentists, faced with such high debt and set-up costs that they are almost driven to fraudulent practice to make ends meet. 

All the professions are - or should be - facing the question of whether moving their training into the ambit of universities has helped or hindered the quality of practice. While I believe that the Deans of Law are well-intentioned, I would suggest that the point at which the cost of training siphons the entire benefit of having trained is the point at which the whole design of practitioner training needs to be reassessed. But this initiative cannot be expected to come from the university; it will have to come from the profession - which itself may not act unless there is public pressure. 

And that is just one reason why legal academics engaging in the public sphere, some even styling themselves "reasonable persons," is so problematic. Public pressure should reflect public, not academic, concerns.

In one of the most tightly written management books there is, author Jamshid Gharajedaghi puts it this way: "a social pathology is produced when an obstruction to development benefits those who are responsible for removing it. Unfortunately, bureaucracy represents a pathological mode of organization where an organized interest group benefits from the obstructions it has created."

I have put some further thoughts on my own blog at ctjester.blogspot.ca to avoid bogging down the conversation here.

The quote, incidentally, is from Systems Thinking, page 81 of the 3rd edition (2011).

It is my understanding that, not so long ago, lawyers learned their craft under apprenticeship to practitioners, which would mean that judicial decisions functioned as lectures in, and the repository of, legal theory. With the transfer of training to universities, the repository of theory has moved to academe, and I am not sure it is well-housed there.

In control of all lawyer training, legal academe now controls practitioner mindset. In addition, it has created a powerful new faction within law - one that, for the most part, has never practiced, and as such is prone to utopian thinking. One that, furthermore, views itself, and is viewed by judges, as authoritative within law but is outside both market forces and the regulatory paradigm. 

The transition of law instructors from active practitioners to pure theorists and activists has gone unnoticed and unanswered by legal practitioners and regulators, and unchallenged within scholarly circles themselves. Yet with the extent to which academic publishing (far too much of it being "publish or perish" quality) is influencing the common law, I would argue that legal academe poses a greater threat to judicial independence today than government does. Government, at least, is vulnerable to public review. Academe is not.

But given that legal academics are now, in force, entering the public dialogue about law, they are also shaping public perception and dampening public objection as the judiciary increasingly shapes itself in academe's image. Even if the decline in lawyer and judicial performance is noted - as it presently is, where people increasingly prefer to represent themselves rather than pay lawyers, and express clear dissatisfaction with their court experiences - no one ever makes the connection back to academe. 

And that is how easily ideology supplants the centuries of inherited pragmatic wisdom that the common law represents. It need only come from people we trust.

They are all nice, smart people. They all belong in law, without a doubt. They may be really good teachers. But their unassailable position in the ivory tower, secured by tenure and academic freedom, suggests that actions extending their reach beyond the ivory tower, into the realm of practice, are highly inappropriate. They are the only actor in law who is not liable for what they say, do, or espouse. 

Not even for the price of their service; for what they ARE supposed to be doing. Even less for their activism, which they are NOT supposed to be doing. 

Judicial restraint is a thing in law. It is time for academic restraint to become a thing too, and not only in law.

Universities have become one of the most able competitors in the public arena for both public and private resources. They have grown at a pace that any private entity would envy, and have no one to account to for the outcome of our investment in them. They retain just enough of the intellectual cachet that led us to entrust our professional training to them, mainly because they tend to attract smart people, and we are both oblivious and powerless to object as they turn from instilling standards of practice to cultivating future contributing alumni that they can milk for further institutional growth and status. As public, as professions, as students, as alumni, as politicians, or even as faculty, we have no way of curbing their hunger as institutions. 

The Deans of law are not to blame for the overall trend in universities, and it would be unnatural in the canon of human behaviour to suggest that they should identify their own jurisdictions as part of the problem. And in fairness, it is not the Deans but the profession that makes universities its only intake portal. 

And it is having just one intake portal that is the root of the problem that law students, young lawyers, and remote communities face. 

It may not be practical to go back to the days when individual practitioners took on apprentices, but one notes, peripherally, how dramatically law firms are growing. It is not beyond the scope of probability that these firms, now numbering sometimes in the thousands of lawyers, could muster a law teaching program in-house. 

There may as well be some point to all that law firm growth and amalgamation, because in the practice of law itself I don't think there is any. 

Tuesday, 4 October 2016

Justice Robin Camp and decline of the judicial system

It's time, I think, to write about the case of Justice Robin Camp, although it's hard to believe I'll be able to add anything after the very thorough analyses of Clary Jaxon and Diana Davison, both civilian commentators whose condemnation of the case against Mr. Justice Camp is comprehensive and convincing. There is, really, nothing left to say about the inquiry itself or the case it concerns in the interests of public information. (But scroll down to the underlined subheading if you just want to read about Justice Camp's situation).

But there is a great deal to say about the significance of the inquiry for the judiciary and the legal system. To me, the Justice Camp inquiry and the discussion around it are irrefutable signs of legal system decline.

Decline is a fascinating phase of system and organizational life. I think it's my favourite one to analyze. Birth and growth of enterprises are so easy, so natural; even though the decisions can be tricky, it's a lot of work, and accidents happen. But in those early days, there's never any doubt about what is going on. The perceptions from inside and outside line up, and there is a synergy between user and provider that is exhilarating, independent of the product or service in question.

Maturity is a rewarding phase, offering observers and participants alike the same thrill as do high level sporting events, with performers at their absolute peak. Working inside a mature system is akin to being a part in a perfectly ticking clock.

But decline is sneaky. It is a real challenge to even detect that it is underway, especially to detect how its seeds are often sown even during those earlier phases. Looking for clues that decline is present has the same attraction that puzzles or (I suspect) video games do, or perhaps more accurately, weeding out morning glory, detecting cancer, or finding bedbugs. The reward is not what you find in itself, which may actually be kind of icky, but the opportunity to solve a problem once you have ascertained what it is and where it resides.

The indicators of decline are subtle, but the payoff of responding to finding them can be dramatic: the pleasure of renewal, and many more years of maturity at peak performance with enhanced capacity to stave off decline in the next round. Decline really is like a weed: the potential for it to take over is always there.

In contrast to what finding and responding to early signs of decline lets us do, missing or ignoring signs of decline plunges system users into a pre-decline phase of delusion and denial, which does not look good on anyone, but looks worst of all on the intellectual crème de la crème that populates law. And then, in a private organization there is demise, but in a public system there is a post-decline horror show in which the bureaucracy grows layer upon layer of scar tissue to cover up an initial sign of decay that no one has the balls to admit is there, much less to admit they are part of. I've called this interminable phase of system life a Zombie organization. Social commentator Deborah Frieze says we can only "offer hospice to what's dying," but not all Zombies can die.

It's my position that law is presenting in that phase of delusion and denial, and the sign of trouble that no one wants to talk about is the degree to which activist law has captured and played the judiciary, interfering with the correct application of doctrine. In short, the law has become arbitrary, captive to a taskmaster other than the rule of law.

The significance of the Justice Camp fiasco

In the case of the Justice Camp inquiry, the dead giveaway is the marked contrast between civilian commentary about the Justice Camp inquiry, that I linked to in the first paragraph, and the commentary about it from law experts.

When I talk about "civilian commentary," you may immediately think of what you have read in the media and what is reported as being "public opinion" (eg in the labour-sponsored Tyee or the Lawyers Weekly. But it was never the public that responded to Justice Camp's decision in R. v. Wagar: it was legal academics and a politician - it was experts who started this, not the public.

If you think about it, you'll realize that everything you know about the original trial in which Justice Camp made his controversial remarks did not come to you in the context of objective journalistic reporting of the the trial itself. The original trial probably never even made the local news, much less the national; it was just one of the dozens of personal dramas that play out in courtrooms every day, not anonymous but totally invisible to the media. So it was not that a reporter considered the remarks newsworthy, nor that the public got outraged about what a reporter reported.

No, it was some legal academics who got outraged first. How did they even hear about it? I'm going to guess it was from a lawyer involved in the case, who knows someone through some networking function in law. Those people too may not even have read the transcript of the trial before getting outraged. Whether they did or not, it was their outrage that made the news.

And when expert outrage hits the news, it bypasses all our credibility filters. I am as guilty as anyone of having fallen into the trap of assuming that Justice Camp's conduct was egregious, and took that as a given when I wrote my Scottsboro Boys post.

I count myself fortunate to have come across the more credible narratives offered by Clary Jaxon and Diana Davison. Their coverage is resolutely factual, unflinchingly thorough, and grounded in the principles and doctrine of law.

The "expert" commentary on this inquiry, in contrast, has three revealing traits. First, it is predominantly published in the public, not professional, realm. Second, it is predominantly emotional, not legal. And third, it is condescending.

On the first point, both the presence of lawyerly writing in the public realm and its relative absence in the professional realm are relevant. As with the horrendous Judge Zuker decision in the Ururyar case, which I wrote about in my Scottsboro Boys a few posts back, no one has been writing about the Justice Camp inquiry in the serious legal literature. If there is nothing to say within law while the inquiry panel deliberates, why the heck is there something to say in public?

The answer is clear from the second point, the content of the writing. It is anything but informative. It is mostly emotional. It is all about creating a public sentiment that will pressure the CJC to find against Justice Camp. The point being made in this narrative is that the public cannot continue to have confidence in the courts if Justice Camp remains on the bench.

It's important to know that public confidence in the courts is a thing in law. Judges use the idea of public confidence as a rhetorical tool to help them identify the best law for the matter at hand. It's not unlike a surgeon saying, as s/he investigates the state of a damaged knee, which decisions in this surgery will best merit this patient's confidence in his or her knee? It is, in effect, a way of determining best practice, which, in all elite endeavours, is done by experts on the basis of expertise.

What the law commentators on the Justice Camp inquiry are saying publicly, however, is different from the "best law" interpretation of public confidence. They are saying that the public can only have confidence in the courts if the inquiry lines up with the emotions of the experts who are writing. And they are saying it to to the public, not among experts who can rebut, refute, and refine.

As I did in my discussion of effective change strategies, I'm going to try to refrain from identifying the people I am criticizing. This handicaps my ability to be clear, to a degree, but I do it because I am not here to put people down. They may be very good lawyers for their clients or good teachers for their students, but their problem is that on this particular issue, they have mistaken their opinion for expertise. They think that because they are experts in law, they have better opinions than the rest of us.

I will say that these law people universally identify as feminists. Their opinions, correspondingly, are all the same, namely that Justice Camp should lose his job. This consistency among them reveals that it is not just opinion, but dogma. If it were based in fact, then consistency would reflect good analysis. Because it is based in emotion, however, it can only be dogma.

Just to prove that time spent on Twitter is not all wasted, yesterday on Twitter a quote from Karl Popper caught my attention: "In a dogmatic setting, the point is not to improve but to purify."

The word "dogma" perfectly captures the kind of writing I am seeing from lawyers about the Justice Camp inquiry. It does not filter emotion through the dispassionate lens of the law, as most legal writing does, where you come away almost blinded by the clarity that legal analysis can bring to a complex issue, but rather does the opposite: it filters law through the distorted lens of their belief, about which they are very emotional. You begin to perceive why this is an issue of system decline: there is more law and less emotion in the civilian commentary than there is in the legal commentary.

Far from breeding confidence in the courts, dogmatic commentary from experts can breed only contempt and polarization. The polarization is fine with these intellectually inbred lawyers: they are out to purify, not to improve or inform. It's a question of what might be called apostasy, that is, non-believers cannot be tolerated in the system - ergo, Justice Camp must be removed from the bench.

But that being the case, it is profoundly dishonest of them to say their preferred outcome has any hope of enhancing public confidence. The opposite is in fact true. If a witch hunt can prevail in law, then public confidence should plummet.

The third revealing characteristic of dogmatic expert commentary is its delivery down a perceived gradient. They are not commentating in public as equals, to hear and be heard. They are here to tell you what to think.

In contrast, both Clary Jaxon and Diana Davison have read, and will provide you with excerpts from, the trial transcript and the documents of the inquiry. They certainly have a strong view of what the inquiry should find, and they state it, but they also provide the factual context for their views and - very importantly - they offer you the information with which to make up your own mind. There is no gradient that they are talking down, no suggestion that they have insight that you do not. They give you all the information that they have, and give you the opportunity to draw your own conclusions. They present to the public with respect.

So, who are the real experts? Are the people inside the system really credible? If they are not, and if they are rather captive to dogma, AND IF THEY PREVAIL, then it is true that the public can no longer have confidence in the courts. Not because of Justice Camp, but because of the "experts" who chose him to be punished. Because dogma successfully masquerading as expertise is decline. It's not just a sign of pending decline, a looming tipping point. It's a sign that the system has tipped.

I love the metaphor of the tipping point because it so clearly conveys how fast and categorically decline can occur. Malcolm Gladwell's book of that title was about tipping into success. The end, however, can come the same way.

It's my perception that the Justice Camp inquiry is the tipping point into terminal decline for the legal system, the courts, and the judiciary.

The reasons I feel this is the case are, briefly, (a) that the history of how Justice Camp came to be hearing the trial in question reveals how unreliable the processes of judicial assignment are, (b) the juxtaposition in which Justice Camp is subjected to an inquiry while Justice Zuker is not, and (c) the evidence that Justice Camp did nothing wrong in law but, if you look closely at the transcript, simply took note several times during the trial that the dogma of sexual assault law is not consistent with established proper legal process.

Did Justice Camp make some unfortunate remarks to the complainant? Oh my yes, although the ones most frequently reported are less shocking than they first appear. But if you read the literature about self-represented litigants from courtrooms across the country, you will see that judges are making unfortunate remarks to litigants every single day, far worse ones than those to which this young woman was subjected. If these dogmatic feminist lawyers want to come to the defence of women being spoken to inappropriately in court, then they can find oodles of them in the SRL world; heck, they can come to my defence if they like.

But they don't care about women like me; they apparently care most about women like the complainant who was before Justice Camp. But what I'd like to know is this: if the dogmatic feminists of the legal world want to shield fragile women like the complainant - a formerly homeless, promiscuous drug-addict -  then who put her up to making a false accusation of sexual assault? And who made the decision to press ahead with prosecution?

Because if you read the transcript, following the account by Diana Davison, this looks like a false accusation. Either someone planted a new narrative in the complainant's head and put her in court to defend it, or it was her own idea that proper channels - police and prosecutors included - failed to filter out.

Those decisions, much more than anything that Justice Camp said in court, are what has caused the situation where this poor young woman, who has now had to testify in court and will have to do so again at the retrial, has also had to testify to the inquiry about Justice Camp.

The young woman clearly has enormous personal strength and resilience. She has both seen this process through AND recovered from her addiction and gotten her life onto a different track. Good for her. She might also have been able to handle having been asked awkward questions by Justice Camp in the context of having her claim dismissed, in time. Many of us are shattered by what we experience in court, and we survive and even recover. I don't say that lightly nor do I take it lightly; it marks us, independent of actual outcome. And sometimes the outcomes - such as the wrongful assignment of costs, or imprisonment on the basis of false accusations - are stunningly bad.

But the dogmatic feminists of law could not leave her alone; they had to milk her again and again for the triumph of their dogma over the rule of law. They had to file a complaint. Whether they pushed the Alberta Attorney General to follow up, forcing the inquiry, or whether the AG acted of her own accord is something I don't know. All I know is that the whole complaints process switched on a hamster wheel on which the complainant had no choice but to keep running. Now the feminist legal academics are continuing to build their occupational profile on her back, the better to bend the judiciary to their dogma; to "purify" - not improve - the judiciary and the law.

They're all drawing a good paycheque while doing so, too. The young woman? Probably still making ends meet with difficulty. In my neck of the woods we call this "poverty pimping."

Tell me quite seriously, if you think hard about this, whether this woman would be better off if this inquiry, at least, had never taken place? Maybe even if the trial had never taken place?

I know for a fact that the rest of us would be. The reason I know it is that it has become abundantly clear through this CJC process that Justice Camp is a perfectly competent judge, possibly even an excellent one, and if he suffers from a sharp tongue, believe me when I tell you it is no sharper than that of hundreds of other judges in this nation's courts.

So, I am making the assertion that the very fact that a perfectly competent judge, possibly one of the better judges on the nation's bench, can be hauled up by the dogmatic feminists for "re-education," is a sign that the legal system has tipped into terminal decline.

How terminal? Janice Fiamengo, another non-legal commentator on the state of law under feminism, has said "feminist law would be the West's mirror image version of Sharia Law - a man's word worth half the word of a woman. A man would need to prove his innocence."

That pretty much shoots down the whole of legal doctrine right there.

But what is "the end" of the legal system; of the judiciary? The problem facing us all is that there is none. We can never be rid of the legal system, and who would want to be? That choice is simply not on the table. Those who wait for the courts or the judiciary to somehow self-destruct, implode, or evaporate into thin air under the burden of dysfunction and decline will wait in vain.

What decline looks like, in a system or organization that cannot die because it is legislated into existence, is growth. That scar tissue I mentioned above? Watch it layer on. Watch for the law faculties to add programs and specialties. Watch for the advent of mandatory judicial "education" with associated governance structure. Watch for every court in the land to add compliance officers, complainant support services, and prosecutor resources. Watch new "societies" form, and funding to flow to them. Watch for the conferences that everyone is being paid to be at, for the volume of publications to explode. Watch the number of appeals escalate, as the law of sexual assault becomes so confused that false accusations routinely secure convictions, and generate appeals.

And watch from and to whom the money flows as all of this occurs.

The choices that do lie before us are those of an obese system in declining health vs. one that is fit, robust, and resilient. A dysfunctional system vs. a functional one. A corrupt one vs. a legitimate one. A dull, dogmatic, oppressive one vs. a renewed, mature, respectful one.

But can you snatch renewal from the jaws of decline when absolutely no incentives exist to do so? That is a topic I hope to explore in future posts.

In the meantime, I leave you with a couple of links by and about Karl Popper, and a reminder of the extraordinary work of the late Elinor Ostrom, via the Twitter timeline of a fan of hers on Twitter. Ostrom's thesis, in case you do not know of her Nobel Prize-winning work, is that ordinary people can sort more things out for themselves than the experts tend to think - and often better than experts. Which is maybe why juries became a part of law in the first place. And why judges might like to ensure they are used more often.

Problem is, when a small group of dogmatic legal academics can generate so much public outrage, how objective can even juries be expected to be? Let alone judges.

(edited October 10, 2016)
(edited December 1, 2016)


Friday, 2 September 2016

Judicial accountability: the flip side of independence

I recently made a submission to the Canadian Department of Justice's call for input on judicial discipline procedures.

The submission ran, unfortunately, to 7 pages, so I am not going to post it here. I heard about the call for input just a week before the deadline and so fell into the paradox of not having the time to be succinct. However odd that seems, it is consistent: one needs time to edit, focus, and restructure. Since I did not have that time, someone at the Department of Justice is going to be earning their keep reading my submission, and I apologize to them for that.

But something interesting happened as the call for input was heard, broadcast and acted on. One of the few bodies that heard the initial call was CALE - the Canadian Association for Legal Ethics. They wrote a nice submission, and released it publicly, so it could be seen that, like other people with whom I discuss legal issues, there was a strong sense that people have far more to say about the judiciary than the questions posed in the consultation paper asked. 

Much credit is due the Department of Justice (Canada) for launching this review of judicial discipline. I don't know what brought it on, and I don't know whether it has sincere reformatory intent or is just for show, but it is a good call to have made and a good time to do it. 

But what is evident from the public mood at present is that it's not going to be easy to constrain the review to the subject of judicial misconduct. The whole continuum of judicial conduct - including both conduct and performance - is very much in people's thoughts, to the point I think the DoJ will have trouble restricting its review to the narrow tweaks it seems to have in mind: slight changes to committee structure here, to type of representation there; how costs are borne, and so on. 

CALE said in their submission, and I also said in mine, that it is time to alter the make-up of the Canadian Judicial Council altogether; to put the oversight of judicial conduct into the hands of civilians. 

I actually wish this were not the only answer; and perhaps there is a better one. But it may simply be too late for anything else. 

According to the consultation paper, handling of judicial misconduct has been in the hands of judges themselves since 1971. The Canadian Judicial Council (CJC) was formed in the wake of the Landreville inquiry in the 1960s, which was handled by parliament in what sounds like a comedy of errors. 

As recounted by the late Mr. Justice T. David Marshall in his book Judicial Conduct and Accountability, the CJC has, since its inception, also had a role in judicial continuing education, along with two other bodies of judges formed at about the same time: the Canadian Institute for the Administration of Justice, and the Canadian Association of Provincial Court Judges. In other words, judges have been self-managing for over 40 years. 

In that time it seems that judicial independence has come a long way. There is an extraordinary document available on line about the Ontario Court of Justice, a 1000 page pdf that I hope will someday be available as a book because I cannot justify printing it all, that tells a pretty rollicking tale of judges and their interactions with governments and communities. As far as I can glean from this and other sources, judges are now possibly more untouchable by democratic hands than they have ever been. 

It is my sense that the task the CJC has pursued more zealously than any other in its 40-year-run is the assurance and defence of judicial independence, and that its most ardent efforts have been put toward making the judiciary independent specifically of government. 

I note that the term "judicial independence" is almost always articulated in the same breath with "accountability," and indeed, the two should be inseparably interdependent. Quite simply, the more independent of government the judiciary became, the more carefully structured and specific should its accountability measures have become. This does not seem to be the case. What we have now is a situation in which independence is virtually absolute, while accountability is nebulous to the point of being voluntary. 

We have had, I must add, the ineffable good fortune that most judges hold themselves stringently to very high standards. But that sort of thing does not happen by accident. I suspect that in the past, high standards have been the result of both the elite culture that prevailed in law and a degree of fear of political involvement if judicial performance did not render a satisfactory result. 

As absolute judicial independence has been taken increasingly for granted, that fear has, I think, abated a little. And because law faculties have not escaped the impact of utopian thought on university campuses, the intellectual standards in law have slipped considerably. Mr. Justice David Stratas of the Federal Court of Appeal has referred to "The Decline of Legal Doctrine.

Add to this the degree to which the Charter has politicized the courts, and we have a judiciary that is independent from government to the point of being immune to repercussions other than what their fellow judges are willing to mete out - yet quite startlingly not independent at all from prominent social and political movements, many of which regard the rule of law as an inconvenience.

In short, all has not been well in the judiciary for the past 40 years. They're still all really smart people, and the law is still an incredibly beautiful instrument often being very elegantly played, but too often the interests being served are not those of the public, of democracy, or of justice. What has been done instead is that judges have been happily playing the tunes of certain orchestras who can afford lawyers, who in turn have been able to play the courts like a piano. 

I have a bad feeling the judiciary does not know this, though, with just a few exceptions. As I listen to various judicial speeches, and read judicial decisions, including some strongly split decisions of the provincial appellate courts and the Supreme Court of Canada, I frankly get a sense that the majority of the judiciary is telling itself a story of justice that only the judiciary itself believes. 

It's kind of like my mother-in-law dying her hair. She is the only one who believes that that improbable shade of orange disguises her age. 

The Canadian judiciary, in its decisions and speeches, refers often to public confidence in the courts, the administration of justice [not] falling into disrepute, and the open court principle (I am refraining from pulling specific examples, since I am not here to embarrass judges; suffice it to say this habit permeates all levels of court). All of this is done in the apparently unshakeable belief that the heavens have not already fallen, and without a vestige of uncertainty.  

But one need only to tune in for a short time to the conversations among (and about) self-represented litigants to realize that uncertainty would be very strongly merited. In fact, one need only tune in for a short time to the academic literature in law, or to conversations within law generally, to realize that judicial performance is even internally being viewed with increasing disenchantment, on both the conduct and performance fronts.

The performance problems are not legal or even judicial disagreements about the fine points of law. What they are, if one looks really closely, are judges using the law for purposes for which it was not intended, and thus abusing their power free of repercussions, and justifying the whole in the name of independence.

It seems that only the mainstream judiciary still believes the narrative of its own virtue that judges have been telling to themselves and each other for so long and so loudly that they have failed to listen to what is being said by others - especially by the public of whose continuing confidence they have so serenely been assuring themselves. 

The task of judicial discipline reform now becomes the question of how to engender substantive change where there is such sublime self-satisfaction with the status quo.

The recommendations I made in my submission to the DoJ included putting intake of complaints into primarily civilian hands, and to cast the net wide with the objective not only of meting out discipline where warranted, but of receiving and processing a large quantity of feedback. Feedback is a rare commodity in law, and judges should be avidly consuming it, individually and collectively, instead of persistently and determinedly circling the wagons and fending off input. 

The new egalitarian world means not only that we grant humanity to those previously deemed not worthy of it based on sex, age, race, infirmity, or occupation. It also means that we recognize human frailty in those previously believed to be elevated above the rest of us. 

Had the judges themselves thought to start listening a few decades ago, we would not be at this stage now. Instead, they selectively deafened themselves. There may actually be such a thing as too much independence, and I think the judiciary long since achieved that. What the DoJ is proposing so far is too little, too late, but relative to what judges themselves have done, it is at least a step in the right direction for a change. 

It is time for judicial accountability to catch up a little with judicial independence. 

Tuesday, 16 August 2016

Access to Justice and the Adversary System

What came out of the Canadian Bar Association's 2016 Legal Conference, at least via Twitter, which is the closest I got to attending, was a strange mix of sentiment among legal practitioners about inclusivity vs. exclusivity, and appetite for change vs. enjoyment of the status quo.

I should make it clear that I am grateful for the opportunity to observe these kinds of events via Twitter. It is, actually, a clear statement in favour of access that attendees are free to broadcast news of the event and how they feel about it. Because accessing that flow of information is a privilege for me, I am not writing in a negative frame of mind, but rather to reflect back to the occupations of law a considered perspective on the pursuit of their stated objectives.

Mine is a critical voice, generally speaking, but exclusivity and privilege are actually not among the things I criticize. Law is an elite occupation from which we as a population have high expectations, and elite groups need certain attributes in order to perform to the standard that is set for them. Whether it is rock stars or top athletes, neurosurgeons or ivory pinnacle academics, certain conditions must prevail for them to merit the regard in which we hold them. Much is made of democratizing high performance systems, but it is not without risk to do so; it would be silly to make pilots sweep the plane in the name of equality. In most high performance occupations, achieving access to the inner sanctum requires the scaling of multiple barriers to entry, and motivating high performers to peddle hard enough to stay at their peak performance may require the provision of certain kinds of privilege. Generally, I do not begrudge high performers those privileges.

But as the foregoing makes clear, the privileges are a trade-off; the quid pro quo is that the high performance is delivered.

So I do not begrudge that lawyers have the privilege of rubbing shoulders with the Chief Justice of the Supreme Court of Canada. I do not begrudge that they enjoy a speech from the Minister of Justice and Attorney General for Canada. I do not begrudge their sessions on mindfulness and work-life balance, their socializing and entertainment, nor the feeling of being part of a special group. They are special, and I sincerely hope they all had a nice conference.

But in exchange, I am going to hold them to account :-) Heck, the Minister of Justice apparently said she was working toward an accountable justice system. I'm here to do my part.

There were, it seems, a lot of things said at this conference about "putting justice within reach of all individuals," attending to "voices that are not heard at all," and "the overarching goal of making justice more accessible."

The SRL phenomenon (of which I have been a part) is not the only manifestation of individuals seeking justice, but it is certainly a good indicator of just how accessible justice is. There are two crucial observations about the SRL phenomenon that illuminate what I think is one of the biggest barriers to justice.

First, almost all SRLs emerge from their experiences shell-shocked from the attacks they endure from opposing parties. Second, news of the attacks is not news to lawyers, nor does it shock judges. It is simply how business is done.

Ladies and gentlemen, meet the Adversary System.

The adversary system is the "bedrock of our jurisprudence" (R. v. S. (R.D.), [1997] 3 SCR 484, 1997 CanLII 324 (SCC), [15] (Major J, dissenting).

In a 1996 article, Tradition and Change Under the Charter: The Adversary System, Third Party Interests and the Legitimacy of Criminal Justice in Canada, Osgoode Hall law professor Jamie Cameron provided an explanation of the genesis of the adversary system, which I offer here in much-truncated form (see pages 220-222 of the article for the original text):

"...a common law tradition, ...conceptualized the trial as a contest between the Crown and the accused as adversaries, to be conducted under the authority of the common law, the trial judge and the trier of fact. Despite encoding it in legislation, the Criminal Code validated that conception and preserved much of the judiciary's authority in the administration of justice. Though associated with judicial precedent and doctrine, the common law embodies a tradition of justice whose values infuse the Criminal Code."

Cameron goes on to discuss the Charter's effect on the "substantive and procedural values" of the criminal justice system, having explained its basis in common law. Then further about the adversary system, she writes:

"Truth and justice are the twin pillars of a system which assumed that justice would emerge from a fact-finding process to discover the truth. The common law presupposed that a confrontation between the parties in dispute, in the formal setting of a courtroom, would lead the trier of fact to the truth. Once the truth was discovered through this process, justice would prevail. Equilibrium between the adversaries was defined at common law by a host of judge-made conventions and rules that protected the fairness of the process. At trial each party was entitled to present her story, in evidence and argument, and to challenge the others, in cross-examination and reply. In theory, those checks and balances ensured that neither party could badger the other, distort the process, or compromise the search for truth (footnote omitted)."
"The adversarial system is a mainstay of the common law, both civil and criminal, which has served the ages. Still, it has failed from time to time and occasionally been corrupted. The risk that it could misfire or otherwise be subverted exposed its underlying assumptions to perennial debate; while some resisted the claim that a contest between the parties in dispute is an effective way to discover the truth, others highlighted the flaws of alternative systems. The fact that truth and justice might not converge in all cases was one reality that could not be avoided."

I find Cameron's discussion of the role of the adversary system helpful because I did not really understand where it came from. As a layperson in the law I am also never sure how much is transferrable from criminal to civil or family law, and so, although one has watched a courtroom drama or two, one does not anticipate being treated, in civil court, like an accused on the stand for the commission of a crime. And yet, there it was: I, like innumerable other SRLs, went to court anticipating a search for truth and justice by the judge. We were focussed on presenting our material to the judge's satisfaction, only to be blindsided, in most cases, by collateral attacks that - in far too many instances - seem to persuade judges of the superior virtue of the attackers' case in contravention to what we know to be true. It feels like being intellectually gang raped. You go in expecting a civil discussion, only to find yourself in a cage fighting match.

Cameron's article is about the effect of the Charter on criminal law. And she says the effect of overlaying the Charter is that "Due process "may well outweigh the truth-seeking value "because process, unlike the truth, is constitutionally entrenched." (footnote omitted) Which kind of suggests to me that it isn't really clear that the adversary system serves any ongoing purpose, if - as the preceding points illuminate - it ever did.

What Cameron writes is about lawyers facing lawyers, and that that has been problematic enough is clear from what she says; now we have lawyers facing SRLs in an adversarial model. This is not what the adversarial model was ever designed to be.

But what we also have is a judicial role that has evolved in concert with the adversary system. And THAT is part of what makes being an SRL so traumatic. It's not just the attacks to which you are subjected, but that the judge seems to approve of them and value them, and think less of you as a result.

I've been in other adversarial situations. For example, I have appeared as a speaker in front of hostile audiences, sometimes quite large ones. What I have found in those situations is that I can handle any amount of crowd hostility with relative equanimity as long as the chair or moderator is neutral and fair. If the crowd's hostility is echoed by the chair, then the situation is intolerable.

In an SRL case, judges have at least three barriers to overcome as they seek to give the SRL a fair hearing and pursue truth and justice. One is a natural affinity for the lawyer on the opposing side and whatever relationship they may have inside the profession. The second is that as a referee, which is how they are cast by the adversary system, they are conditioned to evaluate quality of play, and SRLs mostly have no game. And the third is that most judges are conditioned to be provided with tested information - which they consider to be proven - rather than the simple unvarnished truth that most SRLs believe will stand them in good stead in a courtroom.

This being the case, most advice that is provided to SRLs under the Access to Justice rubric is horrendously unhelpful. Not only is it patronizing, simplistic, and repetitive, but also, it propagates the myth that SRLs inherently believe about the court system: that it is a place where truth and justice are inherently valued. "Just tell your side of the story," is how most SRL advice can be boiled down. Most SRLs, as a result, come in with truth, and also with as just a mien as they can muster toward their opponent.

No one tells SRLs to ruthlessly attack the opposing party's submissions, to torture them with demands for any and all records (health, tax) far beyond the period that would be relevant, to treat their opponent with ridicule and contempt. And as a result, to most judges, SRLs appear to be whatever the opposing lawyer paints them as.

One of the most damaging characterizations that can emerge from this toxic dynamic is a designation of vexatiousness. An apparently popular CLEBC document called "I'm Not a Lawyer, Your Honour" illustrates how readily legal thinking veers to this extreme.

Actually, it can get far worse - there is a Quebec judge who travels around to international conferences declaring that SRLs are mentally ill. Fortunately he is unique* (and attracts critique). (*edited to add: *less unique than I thought, according to this Alberta report on judicial attitudes).

Vexatiousness is a concept that transcends SRLs, but it is a label that is slapped onto SRLs disproportionately often. In reality, it may indeed fit SRLs a tad more often than it fits a represented litigant, but it is important to understand why, and why it does not in fact apply to SRLs anywhere near as often as it seems to.

Lawyers function as a filtering device for the courts. Many a prospective litigant has resolved to take someone to court for something, only to find that no lawyer will take the case. Whatever the lawyers' decision-making matrix, the effect is that these litigants are kept out of court. With the advent of self-representation, these litigants can more readily bypass the filters. So, litigants whose intentions are not the pursuit of truth and justice, but rather vengeance and trouble-making, do end up in court more often as self-represented litigants rather than as represented litigants.

But there are only so many people with vexatious intent. The vast majority of people who self-represent are just like other litigants: perfectly justified in going to court to establish the validity of their claims.

The key is that people who work through lawyers are less likely to get frustrated enough to appear vexatious to the court.

People who work through lawyers are much less likely to become frustrated because their initial applications will be either successful, or not successful on clear reasons concerning their merits. And if they do get vexatiously frustrated, the court doesn't see that; the client is hidden behind the lawyer.

SRLs, in contrast, are less often successful, and if not successful they are often not really even told by the courts why they have lost. All too often, the truth of the matter is that judicial preference for lawyers and how they work has been given free rein.

But because no one ever admits this, when SRLs lose they are often left without insight on the actual merits of the case they made. Was it what they said, or didn't say? Was it what the opposing party said or did? They have no idea. So whether they come back with additional procedural issues or seek to appeal, they tend to want to work things through until they get those things out of the way and get a clear, fair ruling on the merits of their application.

So they are persistent. That does not make them vexatious.

The worst of this tendency to regard persistence as vexatious is the double standard that it represents. When lawyers come to court on petty procedural details, whether to chambers hearings or to the appeal courts, their applications are treated with earnest legal consideration, both by opposing counsel and by judges. SRLs are regarded as vexatious when they do what lawyers are regarded as erudite for doing.

The other hazard is that SRLs are blamed for any errors they might make or for weaknesses in their game. There is no use in pretending that the rookie mistakes made by SRLs were not made, at some point, by the very lawyers and judges who crucify SRLs for making them. But lawyers and judges had the luxury of making their learning curve mistakes in law school, in debate club, or in moots. Or as beginning practitioners, at client expense. And that is one of professional practice's dirty little secrets.

In a previous post I have cited the extraordinary writing of American surgeon Atul Gawande, specifically his books Better and The Checklist Manifesto. I just happened across an earlier book of his, Complications, in which he unflinchingly addresses the fact that surgeons learn by practicing on patients. And that the doctors who supervise the learning process deliberately choose to put patients in the hands of the learners for teaching purposes.

This is no less true of the training of lawyers, which is in effect the training of judges (leaving aside for a moment the occasional elevation to judgeship of legal academics, bureaucratic functionaries, or in-house lawyers).

The adversary system makes lawyer training something of a trial by fire. It has something in common with a hazing ritual. It's possible that older lawyers actually subject sharp young lawyers on opposing teams to certain procedural hassles and adversarial tactics specifically to give them the experience. If that doesn't happen, it actually should (client expense aside).

Adversarial practice is, in any event, a challenging environment in which to practice. The thrill of the chase or whatever combative metaphors serve best, for equally matched adversaries, wits are likely sharpest in competitive environments. We probably have the adversary system to thank for the extraordinary heights of nuanced analysis, quality of argument, and adroitness of language that the law has achieved.

But all the advantages of adversarial practice for lawyers are irrelevant when assessing the best way to provide access to justice, whether for SRLs or for other categories of people with legal troubles who are not presently using the courts.

The only alternative I have come across to the adversary system is the inquisitorial method, which I understand to be essentially a judge-led inquiry into a conflict between two litigants. This may not even require the participation of lawyers, or, in a pinch, the preparation of forms or affidavits.

Inquisitorial judging may have advantages or disadvantages over adversarialism, but what is perhaps most important is that litigants should know, going in, what method the judge uses and whether jousting is part of it. Perhaps a litigant should be able to choose a method, possibly even a judge. After all, in a jury trial, the parties have to agree on jurors. Why should they not, when trial is by judge only, have to agree on a judge?

But what kind of lawyer practice would ensue if adversarialism were abolished? What would the high performers do if law were made so accessible, so straightforward, that anyone could do it?

I do not have answers today, and this has been simply a casual stroll through the issue of adversarialism and its role in access to justice. But the point of taking this stroll in the wake of the Canadian Bar Association's conference is to show just how deep into self-examination the discussion on access to justice has to go if any of its grandiose aims and objectives are to be realized.

Change has to start in the bedrock.

If it does not, all we have is a self-celebratory elite group that has captured a public system, and is covering up its capture with a mantle of virtuous intentions. A degree of capture is not necessarily a bad thing, as long as those in power remain accountable, and enough checks and balances are in place to ensure capture is not permanent or self-serving. Capture IS a bad thing if there are no checks and balances, no escape routes, and if self-service is occurring without consequences. And fatuous pronouncements of dedication to "justice for all" can be a very good cover-up for eliminating or evading checks and balances.

What I need to see to convince me that the access to justice movement is not just a self-serving mantle of virtue is a response to clearly evident abuses of power that constitutes developing a better system of checks and balances and feedback loops. Ignoring the abuses, changing nothing that matters, and instead talking louder and more publicly with more dripping sincerity about meritorious hopes and dreams is not working for me.

The thicker the mantle of virtue gets, the less I believe that anything good is happening under it.


Last edited: August 17, 2016.




Saturday, 6 August 2016

Paradoxical recipe for change: stick to your knitting, and be great at it

Take the latest management aphorism about change from the CEO of a large corporation. Apply it to the legal system, and recommend that law firms around the world act accordingly. What could possibly go wrong?

I've just read an article in which a legal change guru does just this. Now, I've read a bit of this guy's work, and he's no idiot. This is why I am not naming him: I don't wish him ill. The legal futurism business is pretty lucrative, however, and for all that money changing hands, I do expect a relatively high quality product.

At minimum, I should not have to be correcting, for free, what someone is peddling to the legal system for money. But correct it I must, and I'm the more annoyed at having to do so because the point is so simple: systems are not corporations. Systems are not even organizations, or institutions. Systems are SYSTEMS.

A system includes corporations. It includes organizations. It includes government agencies or ministries. But the way in which these elements are hooked together creates a unique entity that is best described as a system.

The aphorism in question is usually not wrong. It may even be relevant for certain parts of the system that function under matching opportunities, constraints, and incentives. But to the extent that management wisdom makes reference to clients, it is highly misleading. The second-most misunderstood thing about systems is who their clients are - and that each component organization may have a different client. Furthermore, in systems, the client and the funder are usually separate entities - and may be different again from the business generator, that is, what causes the clients to walk into the room.

And because no one understands who the client is, the aphorism is usually misapplied. It may not do any immediate harm, beyond raising false expectations and creating complacency, but usually it will cost a bunch of money before it runs its course. That money and time could have been spent generating improvement, but instead it just circulated misinformation through the system and generated bad decision-making that lowers the internal standard. So in the long run it does a great deal of harm indeed.

The most misunderstood thing about systems is what they are incentivized to do. Absent checks and balances, they are incentivized to do precisely two things, regardless of their function: to grow, and to fail. The easiest way to grow is to fail at their core assignment, and only in the presence of strong disincentives to fail will success occur. The absence of a profit motive is regarded as a good thing because most people remain blissfully unaware that the alternative is a growth motive. Growth of funding. Growth of empire. Growth of power.

And systems usually have power over us to start with, as most have a fundamentally regulatory, not service, mandate.

Systems absolutely thrive on dead-end change exercises. Aphorism in hand, the people in systems form committees or societies, have important meetings, hold conferences, consult extensively, write colourful reports, hold news conferences, dress well and have great briefcases, give each other awards and tweet out admiring selfies, and often eventually go into politics. Obviously, dead-end change exercises require the addition of new staff, sometimes the creation of whole new departments or agencies. They grow the system exponentially.

And once the system has grown by an order of magnitude, try changing that sucker now. You have no hope. The bigger the system is, the harder it is to change, because it has more power. The whole point of power is to resist change. And the more people there are whose jobs rely on the continuance of the continued dead-end change cycle, the more prone the system is to latch onto the next CEO aphorism and rally around it.

It is a deadly, deadly cycle because it means that, relative to the systems on which we (the public) rely, each of us individually becomes both less well-served by the system, and less able to do anything about it. In the meantime, it becomes steadily more expensive, and what is worse, our elected officials become powerless in relation to it.

The Education Model holds true

In system attraction to facile management maxims, here yet again there is a convergence between the worlds of law and education. Having spent 20 years studying education reform up close and personal, and having observed trends episodically in other systems such as librarianship, engineering, medicine, academe, veterinary practice, child welfare, nursing, sport, and others, as I turn my attention to legal reform, the patterns are so familiar to me that they fairly leap off the page or screen.

One of those patterns is the emergence of the internal consultancy that set me off today: practitioners who claim expertise not only in the field itself, but in management of the system in which the field practices. In education, I have seen these teacher/consultants - who sustain an exhausting schedule of speaking, publishing, and tweeting - come up with incredibly dumb stuff that is absolutely lapped up by practitioners in the field who trust them simply on the basis that they are fellow teachers. They lap this stuff up to the degree that they actually believe these people can predict the future.

"Chaos theory" is one example that comes to mind. Teacher-turned academic-turned dean of ed or superintendent scans the management literature for something that will help him understand why simple performance improvement in the grade one teaching of arithmetic seems to be beyond the reach of university-trained teachers, and the only thing that offers him any insight is bloody "chaos theory." So he picks it up, misunderstands it, misapplies it, and propagates his foolish interpretation to thousands of other teachers/academics/principals/superintendents who believe him, not because he is an expert in management, but because he is an expert in the failure he is trying to solve. I am not making this up.

This is the quality of thinking that goes into running the system to which we entrust 500,000 children, in British Columbia alone, for 2600 days of their lives over a 13-year period.

Meanwhile, somewhere else in the twitterverse, people with actual expertise in systems (or with the information the system needs to hear to improve its service, whether they are experts or not) talk, publish, or tweet in vain, because even the powers that be who run the system fall into the trap of believing that perspective from the system's practitioners holds the key to the future, as all too often does the public. This results, in education systems, is everyone from premiers and education ministers down to the frustrated clientele itself spouting the same ghastly propositions for change, which result ultimately in continued system growth with a concomitant deterioration in quality.

Naturally, teachers, librarians, engineers, health care workers, academics, veterinarians, child care workers, nurses, athletes, and others will bristle (and do bristle) at the idea that anyone outside their system could possibly know more than they do about how it operates or how it should change. Lawyers, too, are conversing among themselves about legal reform as if they had the same level of expertise in systems as they do in law, and are a bit offended (with a few exceptions) at outside contributions.

To this I have two answers: one is a quote purportedly from Alexis de Tocqueville that forms the header of the blog orgtheory.wordpress.com (aka orgtheory.net): "...the science of association is the mother science; the progress of all the others depends on that one." I'm intrigued by the quote and will go hunting for it in context, because organizational science is fairly modern. The quote, if it is real, shows that the understanding that there is a separate science of association goes back a fair bit further than I thought. But the fundamental message is sound. All biological life forms have a pattern of behaviour, and organizations and systems are biological life forms. Like an animal, person, bacterium, insect, or plant living in captivity, unless the organizational entity is put in conditions that meet its needs, it will either die or behave unexpectedly, uncontrollably. So, whether the topic is law or dentistry, in order for legal or dental excellence to be achieved, the environment must be conducive. Lawyers and dentists are not experts in creating that environment, but in doing law and dentistry within it.

My second answer is that I remember being part of a system as a dietitian working in the infrastructure of cancer care, and in the medical system generally. I remember exactly how much I understood of the system from a systemic perspective: zilch. In fact, I got myself in a bit of trouble thinking I knew more than I did. It is necessary here to distinguish between internal and external knowledge. I certainly knew the operation itself inside out, and I knew my field of expertise from a practical perspective (being able to supply what patients needed) and had the supporting knowledge base demanded by professional practice standards. But as for the decision-making apparatus that created the place where I worked; that funded it and guided it; and its relationship with the public, let me be perfectly clear: I had no clue.

I'm not going to be as harsh about others, such as lawyers, legal gurus, or judges who today are discussing and even enacting legal reform. I think today we are all more aware of systems than any of us were in the 1980s. Thinking back to my entire peer group, I think we were all at best dimly aware that politics created our workplace, but even those who were more on top of things than I was were a bit idealistic and - no offence intended - a bit delusional.

Lawyers today may also be better positioned than I ever was in health care because lawyers' expertise is very systems-oriented. Law is the invisible framework of everything we do, and one of the reasons I was so clueless about my own work system was that I had no awareness of the law underlying it. A law education consists of learning the framework of life that no one else can see, so there is some basis for lawyers to think they can evaluate and correct their own framework with the expertise that they have.

So lawyers, almost alone among practitioner groups, may have the capacity to understand the nuances of their system, but it's interesting that they don't use it. Law, the thinking seems to go, is complicated, while change is simple.

This behaviour reflects the power of system design and incentive structure. Lawyers and judges are all smart people - too smart to fall for simplistic aphorisms under most circumstances. The fact that even they can fall into the self-destructive dead-end change cycle reveals that incentives trump intelligence and good intentions.

Thus the paradox exists in law, as in education, that for system users, owners, and managers to change the system, we need to actually tune out the voices of the practitioners within the system to make changes that serve us.

But what are lawyers and judges supposed to do on the issue of change?

If they do want to be part of the change process, lawyers and judges might find this article about the nature of expertise illuminating: http://quillette.com/2016/07/27/what-experts-do-and-dont-know/. There are actually two important messages embedded in the article about how lawyers and judges can change law and legal practice. One is to recognize that expertise has boundaries, and the further the topic gets from what a person is expert in, the lower the status of the purported expert, and the more likely it is that someone else's expertise should be ceded to - and that is not necessarily the next expert over, but someone with "mundane knowledge."

The second message, not as clearly stated but much more intriguing, is that lawyers should be confident in their voices, actions, and perceptions within the boundaries of their expertise. It is my premise that in law, as in education, the best revenge against the gurus and critics and the system's preference for failure is to practice well, and to use internal conversation to keep standards of practice high.

Simple good practice according to the doctrine and principles of law is an act of conscientious rebellion in a system where failure creates growth and power. This is why I have said more than once, on this blog and others, that the most pressing problems in law lie deep within the law itself where only the judiciary, and to a lesser extent lawyers, can challenge them, and that they are the problems that should be tackled first.

But if lawyers have less power than judges overall in the system, in the management of their own firms they know their own business best. So when gurus about law firm change, for example, start calling lawyers dinosaurs if they don't adopt technology fast enough, or lecturing about necessary changes in the pricing paradigm, lawyers should trust their guts, not the gurus. Is everything peachy in law pricing or law firm organization? Hardly. Normal responsiveness to emerging forces is required, and there should be a variety of price points on offer. But if you run a boutique law firm with hourly charge-out rates in the 500 dollar per hour range, and the clients keep walking in the door and paying for your paper-based practice, why would you pay attention to the gurus who say your price has to drop? Your price will have to drop, or you will have to adopt new technology, when no one is walking in the door, but if you do it before that, you are simply giving business away.

While overall, it is a good thing that lawyers can participate in system change from within, the downside is that every opportunity created is quickly exploited by interests who are already the biggest, toughest dogs. There is a always an oligarchy.* Which oligarchy has an advantage changes from time to time, but that doesn't make oligarchy capture of legal doctrine at any given time any more palatable.

But oligarchy is not lawyers' problem. I've been accused of being addicted to metaphor, which I concede without regret: often, a metaphor best makes the point. So for example, even as a medical procedure like hernia repair is made more efficient with easier recovery, the most advantaged people will still be at the front of the line. Faced with this situation, doctors can either get all wrapped up in techniques for egalitarian wait list management - not their area of expertise - or they can put their energy into ensuring that no matter when a person comes into the operating room, or who they are, their hernia repair is always done to the highest possible standard. They can do this individually as practitioners, and collectively through their self-regulating mechanisms.

In the same way, I submit that pure law, practiced well, for the clientele available to you, is the best antidote that lawyers can offer to keep public confidence intact, reduce barriers to justice, and to induce legal change. It is the best way to equalize legal advantage enjoyed by oligarchies, to include excluded groups, to limit the reach of profiteering corporations, and to keep services affordable. It is not a risk-free life nor is it necessarily easy street, but the pursuit of excellence rarely is.

Final question: can futurists and legal pundits be useful? Yes, they actually can. Instead of holding forth on what can or should change, and how, they can talk about what is actually already changing, why it changed, what the implications are, and how those changes are being achieved. This would be a useful and empowering conversation that would provide clarity and insight for both lawyers and the public. This is not about reorganizing law offices, but about how law is actually changing, for better or for worse. In my last post, for instance, I talked about the Ururyar case, which illustrates a tragic capture of law by the special interests of militant feminism.

There are many cases that result in legal change where the law is clarified and equalized in a good way by novel claimants, novel interpretations, or novel arguments. But there are others, like Ururyar, in which the law is twisted off its foundation and lies in a crumpled heap at the feet of the goddess of justice.

Such events in pure law and the implications for law practice - those are things futurists in law should be discussing and projecting, and that lawyers should be talking about. Instead, the discussion of the legal issues is being done by (other than by people who believe that the principles of feminism should supplant the rule of law) people like journalists (not lawyers) Christie Blatchford and Barbara Kay, Diana Davison on her youtube channel in which she (not a lawyer) dissects legal cases involving militant feminism, pseudonymous posters (not lawyers) on Reddit, court interpreter Lise Lasalle (not a lawyer), American writer (non-lawyer) Cathy Young, and me (not a lawyer), in the previous post on this blog. But on Slaw, for instance, or any of the many other legal blogs to which I subscribe? Not a word. In the mainstream media, an expert legal analysis as an op-ed, or an interview? Nope. On Twitter, from the lawyers and futurists I follow? Nada.

I mean, this is idiotic. People who are not experts in law are the only ones discussing it. Lawyers, ignoring the law, are talking about how to change their system.

I completely understand that "officer of the court" status and rules of professional collegiality (paired uneasily with the adversary system and law firm competition) limit what lawyers can say about each other and about the courts. But they can talk about the law, which begs the question, why don't they? Why do they talk instead about change and access to justice?

Legal pundits, where are you on the sexual assault file? False accusations are slamming into boys and young men with hurricane force, and the legal profession has not a word on line anywhere to provide an expert in-depth analysis of the legal underpinnings and decision-making matrix of this phenomenon. (NB: if I have missed such a resource, on line, on air, or on paper, please refer me to it. I just heard about another false accusations case locally). What's going on in law in response to this trend?

In short, the lawyer's recipe for addressing legal change should be: stick to your knitting, but LOVE your knitting; work hard at it. Talk about it a lot. It's what you're best at, and we all want to hear from you on this topic. Talk about what's in your wheelhouse, not what's outside it.

By the way, Mr. Ururyar was recently released on bail, an appeal having been heard with unusual speed because it was an "unusual" case. No kidding. https://www.thestar.com/news/crime/2016/08/03/student-convicted-of-raping-mandi-gray-released-on-bail.html

*Robert Michels
(last edited August 7, 9:20 am)