I think asking if the average person can afford a trial is the wrong question. Instead, we should be asking ourselves whether we can afford to maintain a judicial system that effectively bars the common person from being able to take his or her civil dispute to trial with the benefit of legal representation.
Canada prides itself on being a shining example of a well-run judicial system accessible to all its citizens. But we’ve all heard it time and again — the legal system is truly accessible only to the very rich and the very poor. A middle-class person simply cannot afford a trial. That sad fact makes a travesty of this acclaimed system.
Access to justice does not merely mean the ability to commence a legal process. Any literate person with $127 and access to ink and paper should be able to get a claim issued without too much difficulty. Rather, access to justice should mean the ability to effectively put a complaint before an impartial adjudicator for determination in a fair and unbiased process of fact-finding and application of universally applied legal principles. It means being able to get to and have your day in court.
But our court system first requires participants to navigate a complicated set of rules before they can effectively pursue that claim. Some of the rules are plainly spelled out in the Rules of Civil Procedure. Others are not; they are buried in the depths of legal precedents. Layered on top is another set of virtually incomprehensible bureaucratic processes and local court directions or guidelines. And of course, if the opposing party is well resourced, they will use these rules and processes to their best advantage to delay and defend the claim.
Other barriers to the courtroom also exist. These include the psychological barriers created by the stress and fear of an undeniably daunting and alien process. Cultural and language barriers also exist for more and more new Canadians. For many people, the roadblocks also include a hearty dose of skepticism of all things legal. All of which means the common person is in need of a lawyer every bit as much as the few who can access legal aid, or who have substantial resources.
But, as we all know, it is becoming increasingly difficult for a middle-income earner to actually afford a lawyer. The practice of law has moved dramatically away from a profession to become a business. Big business. And if the potential customer cannot pay for the services, well, then that customer is not welcome in the shop, and will be politely escorted to the exit.
The decision to refuse a retainer is, sadly, often driven by the inability of the client (customer) to afford the lawyer’s fees, and is not at all based upon a preliminary consideration of the merits of the dispute that has driven Joe Average to seek the help of a lawyer.
In other cases, while the aggrieved person may have sufficient resources to pay for legal advice and counsel, the risk of being held responsible for the costs incurred by the opposition should the claim or defence fail is simply too great, and creates an even greater hurdle.
The risk of an adverse cost award is more than an “incentive” towards parties reaching a settlement. In many a case, the adverse cost risk actually creates a very real barrier to trial, and may compel a litigant to enter into an unfavourable settlement, simply because they cannot bear the risk of being held liable to pay a beggaring costs award. Settling a claim on this basis is not access to justice.
There is no justice in the true sense of the word when economic duress is the driving factor in reaching a settlement.
While academics and politicians are debating whether there is a real problem with access to the courts for middle-income earners, and if so, what spectrum of remedies are or could be available to fix the problem, I am going to suggest one idea. It will not fix the overall systemic problems with our judicial system. It will not change the business of the practice of law. And it may be untenable to many. But here it is: Choose one case where you might otherwise send the client packing because they “can’t afford” you even when they appear to have a meritorious case.
Agree to act pro bono, or at a substantially reduced rate, or on a contingency retainer, even if that is not your typical practice, and even if the client might be able to pay something. And then run that one client’s case the way every client deserves — with passion, integrity, and zeal right up to and through a trial if that’s what it takes. For just one client, don’t let economics be the dominating factor in how the action is prosecuted. For that one client, show him or her that they are not a faceless commodity, but that our worthy profession still helps the average Canadian access one of the basic rights in a democratic society — their own day in court.