BarTalk June 2000
Volume 12, Number 3

“The problem with the legal system is...”

by Barry Cavanaugh

Lawyers whose eyes and ears are open cannot help but have noticed that very significant numbers of “the public”, the citizenry, believe that the legal system has become meaningless, or is failing them. There is cynicism about our profession (for which read the belief that when lawyers get involved, problems get worse, more protracted and hideously expensive), and cynicism about the Courts (even a belief that Courts have become irrelevant and out of touch with reality). There is no doubt, whether it is justified or not, that the people whom we serve are more commonly expressing a serious lack of confidence in the entire legal system. These perceptions may be misguided or ill informed, but as the guru says, “perception is reality”. For us to deny the problem is to insist that the Emperor is elegantly clothed…willful blindness.

We don’t even speak the same language. When members of the public complain about a $300,000 legal fee charged to government, when they are outraged about a sentence, or judicial interim release, we often respond with very sound explanations of how the results are reached, and why that makes sense within the system. But they’re not hearing us. Why doesn’t it resolve the issue when we explain these things? Why don’t they “get it”? The truth, I suggest, is that there has been such a divergence in understanding that even the context which we use to explain how the system works makes no sense to the disenchanted – or worse, to the average citizen.

We need to have the courage to recognise that we’re operating within a system which is functionally irrelevant to many people. Journalists often don’t lead public opinion so much as reflect public ignorance…. And if educated, sophisticated legal writers don’t “get it”, it must be acknowledged that we have work to do.

We need to redouble our efforts at education. As early as elementary school, right through adulthood, Canadians need to become schooled in what our American neighbours refer to as “civics”. How does democracy work? How does the legal system work? What’s my role and place in it? We know that an effective and accessible legal system is fundamental to democratic society. What happens, then, when in the minds of citizens that institution appears to exclude them, is cumbersome and byzantine in its process, is arcane and mysterious, or appears to favour the powerful?

Public trust and confidence has eroded… public cynicism is in evidence. The privilege to work the levers of power comes with the condition that we address concerns about bias and prejudice, access to justice (speedy and cost-effective), legal and judicial ethics, and our perceived remoteness from public opinion.

Each of us needs to accept responsibility for this task. It’s not enough to say “I’m under a lot of pressure” or “They won’t understand anyway” or “That’s the CBA’s job”. Concerned about the image of the legal system? Find a way to get out there and talk to the people about it.

The CBA is out there on your behalf… addressing the media, holding public meetings, promoting public education programs, pushing for Law 12, supporting pro bono programs and hounding government about access to justice for the poor. Are you doing your part? Could you have listened better to that litigant? Could you have explained better, more patiently, to that client? Does your client really know what happened? Do you write to the newspapers, volunteer to speak at your childrens’ schools, actually discuss it with your neighbours when they’re trashing the legal system? I think each of us does a lot… I think we all need to be aware of opportunities to do more.

This article was published in the June 2000 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.