Thursday, July 04, 2013

CyberSmokeBlog:"So what's wrong with bashing lousy judges and lawyers ..... eh?"

"Watch it, criticize it, control it properly, yes, but judge-bashing must stop. The court process is like a psychodrama and the actors or judges, have come to command a certain respect, or it's chaos and the whole system falls apart." Former Canadian Chief Justice Antonio Lamer

Good Day Readers:

To the great unwashed masses (code for taxpayers) it must seem as though the Canadian judicial system as duly constituted is by the lawyers, for the lawyers and of the lawyers backed by the world's most powerful trade union - law societies. Could that possibly be the problem?

Remember what aptly named Dick the Butcher said to Jack Cade in Shakespeare's Henry VI - "The first thing we do, let's kill all the lawyers." Or who can forget Mr. Bumble in Charles' Dickens Oliver Twist who upon being informed "the law supposes that your wife acts under your direction" was heard to quip, "The law is an ass."

Hummm .....

Sincerely,
Clare L. Pieuk

Legitimate public concern or lawyer-bashing
By Dr. Julie Macfarlane
Wednesday, July 3, 2013

My recently released report on self-represented litigants in Canadian family and civil courts has created a lot of buzz - some of it in the form of offence taking by some members of the legal profession. Is criticizing the way in which the public receives services from lawyers just lawyer bashing - or is this a matter of legitimate public concern?

Historically, the Canadian justice system has been remarkably deaf to the view of its users. We have been slow to develop ways of asking the public how they feel about judges, lawyers and courts. This has produced a feeling of "Why should we? We're the experts" among some justice professionals.

Regardless of their age, education, income or gender - this was a highly representative sample - or their chances of success, the respondents in my study told me they were frequently treated as if they were nothing but a nuisance by judges and opposijng counsel, who did not take them seriously in their efforts to speak for themselves. Some told stories of chilling hostility and abrasiveness from particular counsel and judges. Over and over again I heard that "We need more kindness in the system." These SRL's were not asking for a leg up - just to be treated with civility and respect.

My own view - stated publicly many times now - is that the experiences of SRL's are reflections of a system problem, rather than the "fault" of any particular justice system actors - judges, lawyers, court staff, or the SRL's themselves the real problem is that we have a legal system that assumes that people will be represented by lawyers. Declines in family and civil legal aid have left litigants with the choice of hiring a lawyer at $350 an hour, and many cannot afford to do so. Or they run out of funds before the end of their case (over half my sample) and find themselves alone in the courtroom.

This does not mean that there is no room for improvement in the part played by lawyers. Aside from this new information about the manner in which some relate to SRL's, my own past research and that of others highlights poor listening skills among some lawyers, an unwillingness to consult adequately with their client and an inflexible adherence to traditional billing practices.

But the most important thing that lawyers need to do right now is not to engage in the type of defensiveness that I have experienced in the two months since the report was released. Defensiveness on an astonishing scale. In both formal and informal feedback, I have heard many comments that suggest a concerted effort is being made to discredit this research. I am happy to defend it, but this saddens me.

Efforts to discuss the study's findings in both formal and professional and informal social settings have been regularly met with one or both of the following responses from lawyers (1) "the SRL's in your study were all crazy, angry people" (a wholly inaccurate characterization of the research sample) and/or (2) "you're just lawyer bashing." This defensiveness casts lawyers as the victims of SRL's and SLR's as the aggressors. This a a (re)framing by the (relatively powerful) that we should be familiar with from other social issues.

I know that the legal profession and the judiciary includes many amazing people who are committed to enhancing their services. Some member of the legal profession - and in particular some important leaders are looking carefully at the research and considering how the profession should respond. Many of these individuals - and their colleagues on the Bench - would agree that lawyers must be part of change. But they face the resisrtance of those who are so defensive about public criticism.

Discounting or rubbishing the research - and all research has its flaws - is neither an adequate nor a resposible response to the crisis of public confidence in the justice system.

Efforts to stifle legitimate public concern about legal services with cries of lawyer bashing, or disparaging the struggles of ordinary people facing the justice system without counsel, will be completely counter-productive. It serves only to reinforce the critique - that parts of the legal profession do not care about ordinary people and are largely unaccountable to the public.

Many of my respondents told me unsolicited that although they appreciated that I was listening to them, "nothing" was going to change because of the vested interests of the legal services "industry."

Please, let's not prove them right.

Julie Macfarlane, B.A., LL.M. (London), Ph.D. (C.N.N.A.)

Professor Macfarlane teaches Lawyer as Conflict Resolver. She has published widely in the area of conflict resolution and mediation. Her new forthcoming book is Islamic Divorce in North America : A Shari'a Path in a Secular Society (Oxford University Press April 2012). She is also the author of the bestselling The New Lawyer: How Settlement is Transforming the Practice of Law (University of British Colombia Press 2008). Her textbook Dispute Resolution: Readings and Case Studies is now in its 3rd edition (Emond Montgomery 2010). Professor Macfarlane is also an active mediator and dispute resolution consultant to a wide range of organizations and government agencies.


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