Last December saw the release of the Canadian Bar Association’s access to justice committee report, “Achieving Equal Justice,” along with Ontario Superior Court of Justice Edward Belobaba’s decision in
Cannon v. Funds For Canada Foundation that approved a class action contingency fee arrangement. The cases would appear to have little in common, yet they both speak to access to justice issues in disparate ways.
Belobaba criticized the practice of basing counsel fees on docketed time and concluded that it “encourages docket-padding and over-lawyering, both of which are pervasive problems in class action litigation.” He noted that “one imaginative, brilliant hour” of a lawyer’s time may be of more value than 1,000 “plodding hours.”
Yet for the most part, lawyers continue to base their civil litigation fees primarily on docketed time. This approach rewards inefficient and disorganized lawyers while allowing them to ramp up unnecessary fees by spending more time on a task than they really should. It also allows lawyers to continue handling tasks better suited to paralegals or others.
It’s the quantum of legal fees that plays the largest role in our access to justice crisis and manifests itself in a massive class of self-represented litigants.
According to the CBA report, 20 years ago, “best estimates are that less than five per cent of litigants were not represented by counsel. Today anywhere from 10 to 80 per cent of litigants are unrepresented, depending on the nature of the claim and the level of court.”
The report refers to a study by Rachel Birnbaum, Nick Bala, and Lorne Bertrand that found a majority of self-represented parties said navigating the civil justice system was difficult and that judges, lawyers, and litigants “were united in the belief that unrepresented litigants fare worse in court and experience poorer outcomes compared to those who have access to lawyers.”
If self-represented litigants have difficulty navigating the justice system and believe they’d fare better with the help of a lawyer, it seems apparent that most would retain someone if they could afford it.
Another study by Prof. Julie Macfarlane referenced in the CBA report concluded that many clients become self-represented litigants after exhausting their resources or deciding that having a lawyer was poor value for their money.
This takes me full circle back to Belobaba’s critique of docket-padding and over-lawyering and the need to assess fair fees according to results rather than time.
As well-intentioned as the CBA report’s recommendations are, there will be little progress on fixing the access to justice crisis unless we tackle the problem of excessive fees. That’s not to say lawyers shouldn’t earn respectable fees. However, we must step away from practices that reward those who incur more time in handling a file than those who do the work efficiently.
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pro bono legal services and legal aid clinics aren’t the answer. We don’t expect the sick to rely on volunteer medical services, so why should we expect those with legal needs to seek charity? Teaching law as a life skill, improving online materials, and simplifying court processes and forms are all good ideas but will likely merely create a higher calibre of self-represented litigant.
Legal expense insurance sounds like a good idea but it has two major faults. First, it injects a third party that adds additional expenses and a desire to earn profits. Second, it creates the potential for coverage and other disputes between the insurance companies and their clients.
More funding for legal aid is always a good idea but the money available for civil matters is on a downward spiral and that’s not likely to change in a world where health care and education continue to soak up increasing government funds.
It may not be what lawyers want to hear, but any practical solution to the access to justice crisis requires a fresh look at how they calculate civil litigation legal fees.
In doing so, I’d start with the following questions: Do clients receive good value for their legal fees? Why do many lawyers bill their time in increments of tenths of an hour, often with automatic rounding up to two-tenths? Fees escalate rapidly with such docketing practices and clients often have little to show for the significant fees billed.
Why do lawyers bill time for inter-office strategy discussions, thereby generating dockets by multiple people? Why do lawyers bill for extensive amounts of time for legal research? Some legal research may be necessary on certain files, but for the most part lawyers who take on a particular type of case shouldn’t have to put in extensive time on such tasks.
Given the magnitude of the problem, providing fair value to clients for fees billed would go a long way to helping alleviate the access to justice crisis.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].
