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.




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