by Diana Lowe

I was asked to address this question for the recent Restructuring Justice Conference, and my response was drawn from our four-year national empirical research project, the Civil Justice System & the Public.¹ This project focuses on communication within the civil justice system and between the civil justice system and the public. We have interviewed more than 300 individuals: those working within the system as well as litigants and witnesses in different types of civil and family justice processes at various court levels. These have been lengthy conversations about their experiences, including what they expect from their lawyers and from the justice system.

There are four key points that we heard from public participants, which are best illustrated using their own words.

1. Individual users and small business representatives, whether represented or unrepresented, want to understand what is going on in their case.

It would have been very nice if I could just go to court and type in somewhere or ask somebody what to expect based on what happened to me. Give me ten sheets of examples of this happening to someone else and I can just read through it. In month three this happens, in month four this happens. Just so you’re not sitting around and getting random phone calls at random times giving you updates, but you have no idea what the process is. [202, Represented Litigant in an MVA action]

The language used is problematic for most litigants, as is a lack of transparency:

There is so much pomp and ceremony and ritual that it is hard to sort through the issues in plain English. You have lawyers on both sides … when they communicate to the judge or anybody else about the issue it seems to be a bunch of 52 letter words strung together. ‘Your Honour’, ‘My Friend’, ‘The opposition here’, ‘we would like to request and I’d like to respond to this request’. It is so convoluted. You can’t understand what they are saying for one thing. The average person can’t seem to make heads or tails of what is going on. Even in my own divorce case when the judge handed down an interim order, I had to get my lawyer to translate what the judge said. Basically the judge said I got the kids and the house but my lawyer had to say it in English … I am educated, I’ve been in the business of supervising social workers for nine years now, and I can’t figure out some of the words they are using. So how could someone with a low education and less functional than the average person and possibly illiterate, understand their way through court? [285, Represented Applicant in a divorce action]

2. The public wants to avoid going to court. They are looking for litigation alternatives.

We heard this repeatedly from unrepresented and represented litigants, including corporate counsel.

One of the things that we learned was that there had to be a better way than going to court, whether small claims or higher courts. And so we worked as an industry and set up a motor vehicle arbitration program. We offer this as an alternative to customers, and it has worked well for us and for customers so we have expanded it across the country. It has meant that at least 2/3’s of the warranty litigation cases that would have gone to court now go through this arbitration process in a much more efficient and expeditious way. [815, Corporate Counsel]

3. The public finds the civil justice system alienating, intimidating and something very removed from their lives.

Too often members of the public are made to feel that they are passive participants in the justice system. Even worse, participants often overhear disrespectful comments from those within the justice system.

I was in that courtroom from start to finish, you know until my thing came up and I had listened to the lawyers joke about this case or that case or whatever else and then they get to mine and they say, “Oh well, you know, he really has it in for her doesn’t he and blah, blah, blah”, and I’m just sitting back there listening to these clowns talk about my case and my life. I let them talk for a few minutes and then I said, “That’s me! – You’re talking about me now”.

A certain sense of respect for the humanity of people involved in the whole situation is just knocked out the window. You are just so – not alive – you know what I mean? You’re just this number or this file or this docket or this whatever and it’s really, really shameful. [523, Represented Applicant in a family matter. Also experienced with criminal system as a victim of domestic abuse.]

4. The public knows what the issues are. We need to listen.

It is encouraging that those working within the justice system want to learn what the public needs and expects. The individuals we spoke to were willing to share their views and expressed interest in being involved in reform initiatives, but were concerned that their perspectives might not be taken seriously. As the following quote illustrates, the public experience and insight is valuable even on questions of process:

I’ve been into court 25 times in the last year and a half, and it’s all because my ex has broken every court order that we’ve ever had. But one of the things that I find extremely frustrating is that you’re never ever seeing the same judge …. For every little thing you’re going to a different judge which is absolutely ludicrous. You go into a court and have a trial, you vary an order and then if it’s not followed through you’re seeing a different judge and they’re making some different ruling. It was absolutely ridiculous. [607, Applicant in a custody matter. Originally represented, then self-represented for more than a year because unable to afford to continued representation.]

This is really a discussion about case management and it is important for those within the justice system to hear that the public has a view on this and other issues. If we remind ourselves that the civil justice system exists for the public (rather than for lawyers, judges and court administrators) it becomes clear that we must not only be receptive to the public’s questions and observations, but that we must both seek their input and respond effectively. That may mean changing the way we do things. And from what we hear, that is what the public really wants.

Diana Lowe is a lawyer and the Executive Director of the Canadian Forum on Civil Justice. E-mail: dlowe@law.ualberta.ca

¹ The Civil Justice System and the Public is a collaborative research project funded by the Alberta Law Foundation and the Social Sciences and Humanities Research Council of Canada. Details of the project are available at www.cfcj-fcjc.org/research.htm. I wish to thank all of the members of our research team for their contributions to the development of this project - our project partners (who include the CBA), research participants, field research team, Research Coordinator Mary Stratton and co-Research Directors Barbara Billingsley, Lois Gander, and Teresa Rose.

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