Last week I was fortunate to listen to a speech given in Essex County by Paul Schmitz (Everyone Leads: Building Leadership from the Community Up, 2011) on the lessons of building community collaborations that “move the needle” on real social change. As well as being practical and concrete, Paul’s ideas resonate with those who believe in leadership by many – and that everyone – not just the “experts” or system insiders – has the potential to contribute to change.
Paul’s message of optimism and community spirit was especially welcome 24 hours after the appalling events in Orlando. Our shared sick feelings about the massacre in the LGBT nightclub in Orlando is a reaction to such a terrible expression of hatred – but the violence in Orlando is also the consequence of failure to move the needle on gun control in the US.
And then on Thursday came the murder of Jo Cox, the British MP, killed as she arrived to hold her regular office hours with constituents. Cox was shot and stabbed by a man who apparently hated immigrants, and therefore Cox’s pro-immigration views (Jo Cox was a lifelong advocate for diversity, immigration and multiculturalism (http://www.theguardian.com/politics/2016/jun/16/jo-cox-obituary). Britain is about to hold a national referendum on remaining part of the European Union, which all sides agree has turned into a referendum on immigration.
The murder of Jo Cox in the midst of a torrent of anti-immigrant rhetoric in the UK, and the slaughter of LGBT people by a man who targeted them (an American Muslim man, thereby igniting yet another trajectory of generalized hate against American Muslims) are desperate reminders of the danger of passively watching the rise of hate – and that accomplishing meaningful social change (on racism, on LGBT rights, on gun control) takes sustained, collaborative, and intentional action by communities.
It’s been a very difficult week. I cannot presume to know what these events mean or how they have affected the diverse readers of this blog. I can only offer my own efforts to make some sense of all this, and what it means for the work we do at NSRLP.
Moving the needle on Access to Justice for the thousands of Canadians who are no longer represented by lawyers appears an easier problem, at least not one that is a matter of life and death. Yet it seems to me to be essentially about the same challenge – how we understand, support, and respond to those who at some point in their lives (because there but for grace go we…) find themselves vulnerable and marginalized.
So how can we give ourselves the very best chance of success in moving the needle on Access to Justice – or any other social change?
- Phase one: begin with public awareness and accurate information about the problem
The events of this week illustrate the critical importance of obtaining accurate information to shape awareness and understanding of the problem. Without the data that the 2013 study (http://tinyurl.com/jq5qmyw) – and since then, others (http://tinyurl.com/hhq4jfy) – have provided, the misconception would persist that the large and growing numbers of individuals coming to court without counsel were “wannabe lawyers” spoiling for a fight. The reality is much simpler – they are people who cannot afford to spend what it would cost to have a lawyer fully represent them.
Accurate information about immigration – and the difference that leaving the EU would make – appears to be missing for a large number of the British public, who apparently believe that EU immigrants are “taking away jobs”, “taking away school places from our children”, and “clogging up the National Health System.” None of these statements are true (in fact, without the skills of immigrants, the NHS would be unable to function – and the immigrants who invoke their greatest fear are from Syria, not the EU, and leaving the EU will make no difference to the UK’s obligations towards Syrian refugees).
- Phase two: identify the result we want, and promote evidence-based solutions
Paul Schmitz says that effective social change begins with identifying the – concrete, measurable – result one wants.
We have pretty good data now showing that the following ideas, among others, would significantly move the needle on our A2J crisis.
- A combination of unbundled, fixed-fee and legal coaching services offered at affordable rates and available also via public assistance
- The regulated expansion of para-professional services
- The rapid and significant expansion of legal information services (supplemented by on-line resources) for SRLs
In 2013 I imagined – in hindsight, perhaps naively – that once the legal profession and government were aware of the extent of the A2J crisis and the actual reasons for it, solutions would follow. The legal profession would unite behind some common values of providing service to as many Canadians as possible. And government would recognize the need for creatively reimagining the structure and delivery of public legal aid, given limited fiscal resources.
Three years later, and with more advanced models and experience to shape solutions, the needle hasn’t budged much.
In 2016, there are a few networks of trailblazing practitioners who are offering affordable (unbundled, fixed-fee, coaching) legal services. In Ontario, para-legals are still prohibited from assisting with family work. Excellent new on-line resources have been created by nonprofits on minimal budgets, and staff in legal information centres are still completely overwhelmed by the numbers coming in the door everyday.
- Phase three: social change requires collaboration among many groups and leaders working in their own spheres of influence
This is the heart of the Paul Schmitz message – collective impact as leaders and groups collaborate.
Three years ago, I believed that as the A2J problem became clearer and the “obvious” solutions began to emerge, the legal profession and the government would take leadership in envisioning and implementing change.
I now realize that those of us who are committed to A2J will need to create our own alliances. This means that we need to plan and work together move the needle in our communities of practice – our law firm, our policy unit, our law school, courthouse, and social agency. We need to identify small collaborative projects that we have some chance of implementing, and that offer some measurable change for A2J in our backyards.
It’s a much slower and less dramatic way to move the needle on A2J than the “coming to Jesus” (sorry) I imagined in 2013. It’s a bit like individual states or even cities implementing gun control within their borders because legislators are unable to shake off their commitment to the gun lobby. As plain as just one family or community group stepping forward to utterly reject the racism underpinning the EU referendum narrative in the UK. It feels like small potatoes, yes.
But it’s the way forward.
Social change and individual empowerment
I shall leave the final word to Paul Schmitz, who reminds us that leadership on social change is not about “helping people”, but about empowering the members of our communities.
Because what matters is whether we can live with genuine respect for our differences – not because we have been “told” to, but because we support inclusion and tolerance.
What matters is whether people can come to believe in the justice system again, because they feel included, and respected.
“To solve our social problems in our communities, the solution must be to build stronger communities not just stronger programs and services. We forget that people live in communities and that families, friends, neighbors, and faith communities have always been the front lines of how communities solve problems.”
This is close to the only thing that helps me to feel optimistic right now. It’s been a terrible week.
a comment on this post, if our systems have been made aware of the problems with accessing justice, prejudice, etc, and still do nothing to address this, it has to be taken that no one is concerned at all. The marginalizing, of those who are not part of the regular justice system will continue, until the judges, lawyers, and politicians who are involved in the system as it is, stop ignoring the issues, because it is not happening to them, the problems for everyone else will persist. It is a sad statement on the state of humanity, and on our judicial system as a whole. Once you have been made aware of the matters involved in this issue, if you continue to ignore it, you become more culpable for the damages inflicted.
Judges, lawyers and politicians ARE doing something but not what a just society would expect from them. For in stance, politicians work with judges and lawyers to give them more power to abuse litigants they do not like and more and more the law becomes discretionary so there is no standard as an instance they all work together to legislate vexatious litigant proceedings so that a judge can declare you vexatious so that the lawyer and the court can take advantage of you. They also use Orders for security for costs to prevent poor people from pursuing their case as also they throw out people’s genuine claims by use of such things as summary judgements and they generally just abuse the powers given tot hem. They treat the privileges we grant to them as rights
Politicians, lawyers and judges ensure judges account to no one so our courthouses have become centres of organised crime than centres of justice. All this abuse happens while our politicians sit smug in our legislative chambers and parliaments. They will hear when we get the collective will torise up and force them to listen to us
Just this past week I had the opportunity to respond to a government survey and boy did I let them have it. I just pray others will use the opportunity when it comes their way rather than dismiss it and especially those who dismiss it and say government is useless. There is strength in numbers fellow SRLs and we need to gather together
One thing is sure, Dr Julie McFarlane learns as she goes and she learns fast unlike others. I have faith in you Dr Julie McF
I don’t disagree that it’s been a bad week, but unfortunately, the access-to-justice challenge is not a social movement. It is a problem with system performance. The steps you have described will only result in the law reform movement following the education reform movement – growing into an industry in its own right, codependent with the dysfunctional system and as reliant on the original failures as is the system itself. I see that process starting in law already.
Paul Schmitz may (or may not) be a genius with respect to social change movements, but even if he is, his principles are not suitable for fixing a quality assurance problem in an authoritarian system.
The bottom line is this: the vast majority of the barriers to justice are deep within the law itself, and can only be addressed by the judiciary. All the work that is being done on rules, support services, funding, pro bono work, law industry reconfiguration, and other enhancements can only solve the peripheral barriers. When 80% of the problem is in the untouchable zone, the peripheral change agents can only achieve 20% of the solution at best.
The hazard in coming at the problem from the SRL angle is that one is seduced into thinking of it as an SRL problem. It is not. There is certainly no excuse for what is happening to SRLs in courtrooms, but the fact is that the same things have been happening to lawyers – and thus to their clients, ie, represented litigants – for a long time prior to that. There was no excuse for that either. What the advent of SRLs did was shine a flashlight into a dysfunction that was previously successfully kept hidden by the code of silence that all elite groups have about what really goes on inside. In law these codes are embedded in professional codes of ethics, duties of officers of the court, and various rules of practice. And a healthy dose of fear. What would happen to the courtroom career of the average lawyer who spoke critically about judicial practice? Exactly.
So, what are the problematic issues of judicial practice, and why are they a problem? They comprise quite a range, from the reliance on appeal for error detection and correction, to how costs are assigned, to whether judicial independence is, truly, independent. They are issues of how the law is applied, and how consistently procedures are followed. However deep and significant they are in legal terms, however, they are quite simple in management terms. It is my belief that the judiciary should engage experts in process improvement and other management disciplines (disclosure: that’s my area of training, though I don’t work in it) rather than trying to DIY. DIY judicial management has gotten us to where we are.
It’s a problem smart people often have – thinking that because they’re so smart, they don’t need any expertise beyond what they have. But when managers have legal problems, they hire lawyers. Similarly, when lawyers or judges have management problems, they should hire managers.
In frustration about the lack of a feedback loop into the judiciary, just yesterday, as it happens, I started a new blog that I called “The Court Jester.” I may or may not ever get past the first post, but sometimes it’s enough just to have an idea that changes a mindset. So here, for what it’s worth, is the genesis of the idea: http://ctjester.blogspot.ca/2016/06/why-court-jester.html
One of the other problems with engaging in system reform is that we tend to look at the system and think that information or frustration will change it. In the first place, information does not change behaviour; incentives do. In the second place, a system is not an organic whole that can be changed as a whole. It is an interdependent system OF ORGANIZATIONS, each of which has its own internal issues; its incentive structure, its power, its clientele, and its needs. All the organizations of the legal system are built around the judiciary, and they can no more change themselves independent of judicial change than SRLs can change the whole system. But if the judiciary self-corrects to begin with, the rest of the system will effortlessly align itself in response.
As an example, there is not much available in the way of unbundled services, but that will not change because it should, but rather, when enough people start calling law offices asking for them. If law firms were receiving dozens or hundreds of calls per day, not only would they offer them, but also, they would successfully agitate for legislative and professional changes that facilitate them, and would structure their fees accordingly. So, why are enough people not calling? Because they do not have confidence in the courts.
The idea that confidence in the courts exists now is a comfortable fiction that the judiciary tells itself, and us all, as a rationale for keeping things as they are. But there is no evidence that the public does have confidence in the courts, and as Charter law proceeds down the path it has chosen, it is my observation that public confidence is steadily eroding. It is eroding further, one SRL at a time, as people personally experience the courts.
The question the judiciary (as a whole, and each individual judge) needs to ask is this one: if the public had lost confidence in the courts, how would you know? And if it were gone, how would you fix it?
Whatever that fix would be, my advice to the judiciary is to do it now.
The corollary message to people working around the periphery of the judiciary may be that they do not need to try harder, but rather to try less. A lot of good work has been done. It is enough. There is nothing that has not been said, and saying it again will not help. It might be better if the already too large access-to-justice industry simply fell silent. Then, it might be possible for judges and the public to hear each other. Especially if what has to be heard – by the public, listening for signs of judicial reform, or by the judiciary, listening for signs of confidence – is the magnitude of the silence. The work that the judiciary needs to do will be internal, and not for public scrutiny, but those initial messages need to be exchanged for the work to begin.
One other important point that differentiates system performance improvement from social change: when you have system performance issues, you do not have to start by going out and changing the world. That way lies empire-building madness. What you do instead is you start with the work that is already in front of you; you measure how well or badly you are doing it, and set standards for improvement, and then you do it better, establishing “better” by measuring again. It is not rocket science. And it is because it is not rocket science that, when these simple tasks are persistently not done, the public loses confidence in the system.
This is a mouthful and you are onto something. In fact you are onto much. Like I said Dr Julie McFarlane learns quickly unlike many others including those before her. her rout to understanding this A2J issue (it’s not a phenomenon) could not have been better for she is getting it straight from the bottom up by direct experience. There is no better way to find out what this issue really is
A friend of mine went to court last month for the first time in her life. After the encounter she said to me they need to fire all the judges and star fresh. I don’t think she understands how profound her statement is. However, I recognized that it took her just one encounter to figure out what many “experts” fail to catch on to
I have to say, for sometime now it crossed my mind to start a publication that I would have handed out near the courthouse and in this publication (hard copy material) I would laugh the judges to scorn and see if that will get them to have some decency and integrity. I was just too broke to start so my “court jester” role has been stalled. Take for instance the case of my first time SRL friend: The master granted a SJ against her and said some of these nonsense in his “judgement” -If I let your case go on it will cost you too much, The car loan deal you made was a bad one, I don’t know why anybody would say to use SJP is an abuse when it is legal (ROTFL), that document you submitted talks about Ontario and it is different out here (ie that lawyers should not resort to “sharp practice’- now I want to swear) Did I mention that the lawyer asked him to grant the order that day and he will bring his evidence the following week after he granted the order? First of all I just do not see how a master has jurisdiction to hear an SJP based on jurisdiction spelled out in the Court of Queen’s Bench Act here.
There were many more nonsense coming out of this mans’ mouth but add to the above that the lawyer made no SJP argument and the Master made them all for him such as, there is a case from the supreme court over 35 years ago that says such and such ( the old goat is yet to tell us which case), and recently judge somebody at the SCC ( that judge with a middle eastern name who talks nonsense all the time) said (something about judges must do more SJPs). He said sop much BS I absolutely concluded that he is senile and UNFIT to sit as Master. yet no one can do anything about this old goat. How can justice be possible under such circumstances? The problem of A2J is way bigger than anyone issue or factor to it and all the problems point to a very unfit judiciary. To fix A2J we have to fix the judiciary and we should start with the way they are appointed. They are supposed to be accountable to the public then make them accountable to the public
Need I say I love this idea of the court jester here? You have my support
Depressing to see yet another “shift the responsibility” article on Access to Justice. This theme is so prevalent it’s practically A2J 101 at this point.
Enough with the platitudes and dreams of a utopia, let’s call it what it is. The justice system isn’t accessible because if it were made to maximize accessibility it would not be nearly as profitable for those working in it. You know it, I know it. The only solution is for a business to come in and do to law what Uber is doing to Taxis.
On a separate note, an American Muslim goes on a shooting spree and the issue you bring up is that this will further marginalize muslims? Playing the victim card pretty quick aren’t we? There are literally dozens of daily terrorist attacks by muslims (don’t believe me? Please google Bangladesh, Indonesia, the Phillipines, any country in North Africa, etc.), why is it that we must jump to defend muslims? Is the attack in Orlando not an alarm that muslim leadership needs to be more accountable. Suppose not. It’s our fault for not being liberal enough.