Tuesday, 1 January 2019

Mirror Mirror on the Wall: What the legal system's A2J work really looks like so far

The access-to-justice industry has gotten big: I would venture a guess that the legal system jobs generated by the access-to-justice problem now number in the hundreds. By this I don't mean just actual identifiable jobs, but overall FTEs (full time equivalents). A lot of other jobs have proliferated because an A2J component has been added to so many of them.

Yet the quality of work being done on A2J remains pretty sad.* Almost none of it rises above the category of "rent-seeking," including the work being done at the very top.


A recent article in The Lawyer's Daily featured two people at the very top talking with each other:

https://www.thelawyersdaily.ca/articles/9271, and it merits a contemplative pause at the beginning of 2019.

If you read this sycophantic, self-aggrandizing interview (and here I am referring to both participants), you would think the A2J problem is well on its way to being solved. But the real state of affairs is nowhere near being solved, and if you know that, as almost anyone on the street does, you cannot help but notice how utterly tone deaf these people are. Their own pronouncements sound wise to them, and negative information to the contrary is simply inaudible.


These people clearly have very low expectations of themselves and others, and are therefore far too easily satisfied, with both themselves and each other.


The public expects better. How much better? Well, how about if we start with an accurate depiction of exactly how bad these people's work is instead of participating in the big lie that their work has some merit. I'll try to put this into a metaphor that everyone can understand: medical system wait lists.

Here is what most law reform and A2J initiatives look like if you transfer them into the medical sector:


There are 100 people waiting for immediate hip joint replacement operations, all of whom are in excruciating pain. 

The status quo has 2 people being operated on per day, with one of them experiencing catastrophic outcomes ranging from death to extreme leg length discrepancy. 

Each day, 3 new people join the waiting list as their pain becomes so intolerable that they become willing to take the risk of being operated on.

The medical system says "wow, we have a problem with wait times. What shall we do? First let’s evaluate just how many people really have hip problems, including any and all problems, not just operable issues. Then, let’s launch a public education program so that people know what a hip problem is. First, though, we better inform them about "what is a hip."

Millions of dollars are spent on this public education campaign. 

Five years out, the status quo is:

1925 people are now on the public waiting list. 
3650 hip replacement surgeries have been done. 
1825 people are dealing with catastrophic effects of their surgeries, or are dead.

The public education campaign is evaluated by doing surveys to test the public's knowledge about hip joints, and whether or not they can distinguish their hip joint from their knee.

In the course of the surveys, it is noted that most people on the waiting list are people with grey hair. That seems discriminatory. Several doctors who do not do hip operations are very worried about this discrimination and want more people with red hair to be getting hip replacements. These doctors form a non-profit society and get funding from the Medical Foundation to fight this discrimination. They hire one of the doctors who currently does hip operations to operate only on red-headed people, independent of their pain level, rather than on whoever is next on the public waiting list. 

The doctor they hire is the one whose patients rarely experience complications. The only doctor now working on public wait list patients is the one whose work usually produces bad outcomes. 

This metaphor is simplified, but it is not exaggerated. If anything, it omits a few sources of idiocy. But as I have been trying to convey on this blog for some time, inside reformers may be smart people - hell, they are LAWYERS - but the quality of their work on access-to-justice is fatally compromised by their assumption that other people are dumb.

Having now spent nearly six years in the grassroots among unrepresented litigants, I can tell you that the people experiencing B2J (barriers to justice) are anything but dumb. Some of them may have been naive, but as their cynicism sets in, the quality of their insight and understanding - to both the legal system and the law itself - is blistering.

In contrast, the current state of insider self-awareness in the legal sector is equivalent to the medical sector looking at the scenario above and saying "aren't we doing a great job." I'm not here to say the medical sector isn't prone to this kind of thinking - people in all these expert-centred complex systems are prone to enhanced self-regard. But the legal system is engaging in mutual self-congratulation to an extreme degree, and one reason is that they ARE doing a great job - just, they're doing great for themselves and each other, not for the people who don't have access-to-justice.


Like the public school system, which for decades has not been about education for kids but about jobs for adults, the legal system is not about access to justice for peons, but about access to elite circles for lawyers. And those elite circles meet in rooms that have really bad acoustics: everyone in them becomes tone deaf.


The longer we peons rely on the people in those rooms to solve the A2J problem, the longer we will wait. Political solutions are starting to look like our only hope.





*With important exceptions. You can tell who they are because they don't get defensive when someone says the A2J industry is doing a crappy job.