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)