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.

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