A criminal defence lawyer once observed waggishly that for many of his clients delayed justice…. Was justice. In civil cases it can often be inferred that there is an asymmetric approach to timeliness: often one of the parties would rather not see justice rendered expeditiously. For those few clients engaged regularly in the resolution of disputes timeliness carries very real costs and consequences which might more comfortably be deferred or managed at a leisurely pace.
Who really cares about timeliness? Should we be skeptical about the sincerity of public pronouncements concerning not just the need but the desire for timeliness? Fervent expressions of a desire for timely justice are frequently synonymous with a desire for victory over the opposing side. And if victory requires great effort and time then some will choose that over a swift resolution with a reduced chance of success. The ongoing debate over the substantive and procedural choices facing those with improving access to justice bristle with these debates. -I’m not entirely sure what this means.
Is timeliness in the justice system an orphan – a clear public good but lacking truly committed champions? How do we build a constituency that would continue to hold us to account?
In the popular culture judges are often featured at the forefront of the problem—despite the fact our systems are largely party controlled. Judges can get blamed because they oversee the end of calamitous cases even where they were victims as much as anyone. Lawyers who have finely honed skills at securing delays are eagerly sought out by parties who want or need that skill. Although the lawyers’ oaths oftens forbid the commencement of frivolous suits, there is no such prohibition of seeking delay.
Skeptics often point to the financial incentives which can encourage delay. Criminal cases which take several years have their own economic incentives which are not improved by speed. Dream Teams are well funded –and well rewarded. For civil cases the wholesale conversion to hourly billings removed the opportunity to include in a bill an amount for “efficiency and result achieved” which for decades was a factor in Canadian legal bills.
There are more subtle influences. An extended trial calendar permits successful lawyers to book their cases over a longer time period. It has been observed that in jurisdictions with speedy trial rules one effect is to drastically reduce the caseload of senior lawyers. If new cases are scheduled for a trial in 6 months it is not possible to juggle many other cases. A smoothed schedule may also allow lawyers to reduce stress and impacts on family life. There are doubtless many subtle and far reaching influences on timeliness that flow from an hourly rate professional culture.
This is not all bad. A professional culture where delay is commonplace permits the extension of professional courtesy to others when other files unexpectedly disrupt a work schedule.
Administrative decision-makers can face severe swings in the volume of work arising from legislation, and the resources budgeted—or not budgeted—to handle increasing caseloads. The caseloads of social workers and immigration officials often reflect political rather than administrative decisions.
Any discussion of incentives in legal systems that addresses only economic incentives is incomplete. Professionals will work for free and conduct themselves in ways that are economically unwise. Indeed, that can be at the core of professionalism: doing the right thing just because it is the right thing. I recall multiple appearances in criminal proceedings blamed on BC’s legal aid plan paying for them—despite the fact they were unpaid! Some of the runaway cases have financially unhappy, but determined, lawyers at the podium.
The concerns over access to justice– now in its third decade—face similar challenges but that experience offers some hope for change.
Most of the data relating to timeliness throughout history has been difficult, if not impossible, to gather and analyse. That is changing. Other systems with time-related challenges such as medicine, engineering, aeronautics and manufacturing have produced many successful models to learn from. The Access2Justice Initiative in BC recently adopted a three-pronged approach modelled on medical initiatives.
There are real obstacles to timeliness but also real reasons to hope for permanent improvement. Other blogs will explore those reasons. Apart from particular measures the reasons for hope must bridge across individual and professional incentives to seek the common good that will come from ensuring justice is timely.
