TLF Brainstorm | Ep. 1 | Redefining access to justice
What is TLF Brainstorm? TLF Brainstorm is an opportunity for our community of legal forecasters to share their creative ideas in response to an interesting question about the role of the lawyer.TLF Brainstorm is one part philosophical, one part creative, and most of all, it is a space to share new ideas.Some of our responses may be genius and change the world forever, some may completely lacklustre, some may be riddled with typos (having been typed and sent through on someone's mobile phone while on the bus). This is the beauty of TLF Brainstorm.Please feel free to use the following widget to vote for the below response that most resonated with you:The legal forecaster who wins will receive a certificate and small gift from TLF. The Question: redefining access to justice For our inaugural TLF Brainstorm, we considered the following question, which was posed by Emma Kendall (Partner, DLA Piper & avid sneaker collector):Is the current definition or common understanding of “access to justice” too narrow (e.g. access to justice = (merely) pro bono work) and, if so, how should it be redefined, expanded or reframed? Consider in your answer whether your expanded/ reframed/ redefined concept of “access to justice” could be used to improve the relationship big commercial law firms have with “access to justice”.
Adrian Agius (TLF, NSW)I feel like there is no problem with the current definition of access to justice. I do think however there is a total disconnect between what firms feel improve access to justice and what outcomes actually are. Justice is a construct of transparency, accessibility and affordability. They are all concepts which, to be properly realised, require firms to move beyond actions for the sake of PR, small scale technology adoption and monetary support, to a more transient culture that reflects such values in every aspect of work. In a partnership model however, this renders itself impossible or at the very best, limited. Could you imagine telling partners that they need to relinquish their partnership and restructure so as to realise access to justice. Andrew Dibden (TLF, QLD)Let’s break this down. “Access” and “to” are commonly understood enough words to cause little problem of their own within the phrase “access to justice”. Their meaning, however, is broad and often driven by context (access to a computer network vis-a-vis access to the roof of a building). In most (if not all) cases, “access to” contemplates both the following elements:
- An ability to obtain the “thing” to which access is pursued; and
- Permission (be it societal, legal, moral etc) to obtain the “thing”.
The difficulty, in my view, comes with the nebulous nature of “justice” and, more importantly, the lack of a clear articulation of society’s formulation of justice. Instead this formulation can be found in the meandering river of our legal system, which cuts off certain private freedoms in the interest of public safety, or which discourages certain activities in favour of others. Consequently, we are left in a position where we are seeking appropriate ways to obtain a thing which cannot be clearly seen and which, by definition, is constantly morphing and changing.I do not propose here to answer the question: What is justice? However I do hope that when “access to justice” is discussed, discussions of justice (or the policy settings which society, through the Parliament, decide to achieve justice) do not cloud, confuse or frustrate progressing improving access to those mechanisms by which justice is provided.Mollie O’Connor (TLF, QLD)In terms of my personal understanding of the term ‘access to justice’, I have always associated it with improving the ability of the legal profession to provide services and assistance to those members of society who otherwise could not access the law because of financial, social, educational or other reasons. In that sense, my understanding of access to justice has always focused more on the pro bono side of the legal profession, and ensuring that the law can be accessed by all, not just by those who can afford it. I don’t feel that this understanding is too narrow, as ensuring the law can be accessed by disadvantaged or impoverished members of society is a major issue to tackle on its own without widening the scope of the term.However, I do feel that as access to justice in its current understanding is better improved, there is more scope to broaden the definition to include a more commercialised aspect. Access to justice could be expanded to focus not only on accessing the law itself, but to include a focus on accessing a greater range of services within the profession. Access to justice could be given a more commercialised viewpoint, wherein commercial law firms engage with local businesses or start-ups on a more affordable basis and provide access to a greater range of legal services that they otherwise could not access. However, such an expansion of access to justice to include a wider section of society would be reliant on the current understanding of access to justice being embraced and achieved successfully. Whilst I believe a transformation of the concept will occur into the future, currently the legal profession needs to focus on providing services and access to justice to the marginalised sections of society.Angela Metri (TLF, NSW)A universal understanding of ‘access to justice’ is difficult to define. But it is given underlying principles - an expression of protecting and promoting the public interest and enabling the legitimate participation of citizens in society.Other links to access to justice might be seen in effective competition for availability and affordability of legal services, and whilst this could lead to greater access to justice for citizens it could also mean a reduction in the number of providers who can compete effectively. Loss of service could also mean a potential loss of access to justice. A more competitive marker could result in concentration on transactional activities that are not normally associated with access to justice.Amongst the public, a better education and understanding of legal rights and duties could instigate better-informed defences of claims, but it may also lead to a claimant not pursuing or defending a claim because of informed risk understanding and uncertainty, even where the defence is otherwise valid.In a legalistic conceptualisation of access to justice, we consider protecting and promoting the public interest and supporting the rule of law; equally we might consider encouraging independent, strong and effective legal advice and representation, and court processes that are equal for all who access it, and those who wish to access it. But it can be viewed more broadly – the legal system should lead to results that are individually and socially just. Access to justice is not just limited to access to legal services, lawyers, law firms or the courts. Akaash Singh (TLF, QLD) I think we have to consider what is ‘justice’. Justice is a broad concept and can mean different things to different people - to a lawyer, it’s fair application of the rule of law and certainty in the law to resolve disputes between citizens; to an accused, it’s fair and due process; to the victim, it’s a sense of satisfaction knowing that the wrongs done to them have been corrected; to popular media, it is harsh punishment on criminals. So corporate law firms need to understand that justice can differ when talking about different interested parties. I think it is a process of these law firms identifying what types of parties they want to act for and then aligning strategies according to that party's conception of justice. That would provide better "access" to justice.Angus Murray (TLF, QLD)In response to the question, it is important to understand the historical context for access to justice. In this regard, the Magna Carta states that “[t]o no-one will we sell or deny of delay right or justice”. The common and contemporary understanding is that every citizen has an entitlement to be able to seek justice. Although this understanding is (relatively) clear, there are a number of important elements that must be considered when responding to the question. These considerations are broadly and generally (and in no way exhaustively) expressed as follows.
- Knowledge of the areas in which justice may be sought.
This point is relatively simple - you must be able to recognise where you have been wronged to be able to seek just remedy(ies). The law is complex, convoluted and often overwhelming for the “average person”. This complexity often makes it difficult to identify (let alone understand) when justice is able to be sought. 2. Financial ability to access justice. The identification of issues (as briefly enunciated above) wherein justice may be sought requires years of training and experience - thus, the role of lawyers. Unfortunately, a large majority of society is financially incapable of seeking legal advice, and this is without the cost of seeking access to justice through the Courts. The Legal Forecast focuses on this reality and has attempted to address this issue via hackathons, publication of blogs and articles and engaging in a community-wide discussion about the way(s) that technology may alleviate some of the financial strain of accessing the Courts (and this brief response does not attempt to delve into the complexities associated with community legal centres, government funding and the financial disparity between certain applicants, respondents and parties to litigation or the role of experts).3. Literal ability to access justice.This is literally the ability to access justice. For example, the availability of information regarding the means to seek justice, the physical accessibility of a (for example) courtroom or the geographical location of a person (i.e. rural v urban).In sum, the expression “access to justice” should clearly be redefined and expanded.It is my view that this issue may be alleviated by:
- Increasing the focus on legal education (or at least the concept of justice);
- Increasing the technological solutions within the legal system to make justice more accessible (in a financial and logically driven manner); and
- Ensuring that the democratic discourse around justice remains central to society.
Kate Timmerman (TLF, QLD) My understanding of ‘access to justice’ is the ability for all members of society to be able to access the legal system - whether that be in the form of:
- advice in relation to their rights and obligations;
- legal remedies available to them; or
- the resolution of a dispute.
There is significant pressure on the legal profession to support those who are deemed to not have access to justice, usually as a result of their financial circumstances or physical or mental disability. This results in law firms providing pro bono services, often on an ad hoc basis.If the purpose of redefining ‘access to justice’ is to allow greater accessibility to legal support, then the principle to be considered is whether our legal system requires significant overhaul to allow ‘access to justice’ rather than merely facilitating access to the present legal system.That said, I do not propose to provide a detailed analysis of the overhaul of our legal system. Rather, I propose there are stages or steps to achieve access to justice. The current definition of providing pro bono services is step 1. The next steps need to include:
- changing the law, court procedures and legal practice to enhance the power of the legal system for all members of society;
- providing functions for resolving disputes without enforcing complex rules and procedures; and
- utilising technology to assist those who are disadvantaged in respect of physical or mental disabilities.
As such, the definition of ‘access to justice’ does need to be expanded, but in a practical context to change the system as opposed to attempting to facilitate access to a system that does not provide justice equally to all members of society.Michael Bidwell (TLF, QLD)I do believe the current understanding of ‘access to justice’ is too narrow. It is based off the traditional model of someone with a legal problem going into a building looking for someone to help them. My personal view is that the legal and business professions are not doing enough to advocate for those who need it most. Access to justice should be expanded to mean professionals using their skills to benefit their communities. This does not have to be a pro bono service although that is clearly one direct avenue. It can incorporate offering community groups your drafting or advocacy skills if they need to make a submission. It can incorporate speaking at public gatherings on topics you are passionate about and want changed in the community. It can incorporate empowering diverse young people to pursue professional careers because that will inherently create broader understanding and respect in the professional community. Justice is not necessarily legal because it encompasses all social issues that we face.I believe this expanded definition would improve the relationship big commercial law firms have with access to justice. While direct pro bono services are absolutely essential, our duty to the community should not be something as simple as measured hours. We have so much to give back in our privileged positions in society and any action to benefit access to justice should be celebrated. Removing the legal focus will allow big commercial firms to create interdisciplinary teams with clients to effect justice in their communities.Samara Cassar (TLF, QLD)Whilst a plenary definition would hinder the capacity to adequately adjudicate the success of an initiative in achieving ‘access to justice’, I believe the contrary - to prescribe a settled definition to the concept - would be largely reductionist. A flaw in the present system is the tendency to resolve to traditional ideas of ‘justice’ and for legal practitioners to assist in static programs (i.e. in fixed pro bono initiatives for ‘key’ issues). Instead, I think a more ‘bottom-up approach’ would better serve the greater community in ensuring the actual issues experienced by those less fortunate are identified.In sum, I believe it worthy to continually redefine and challenge our understanding of ‘access to justice’.