♫I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I –
I took the one less traveled by
And that has made all the difference...♫
– Lyrics by Robert Frost
music by Randall Thompson

Law is presently at a cross-road. On one hand, I can see a brilliant legal future that resembles Tomorrowland at Disneyland – filled with sparkling new technologies such as AI, Blockchain and innovative legal search tools that help lawyers meet and exceed client’s needs. On the other hand, the future could be a place where lawyers have been largely marginalized, the right to representation is bypassed in the name of expedience, the rule of law is undermined by politicians and the justice system ridiculed due to its cost and failure to render justice in any meaningful way to the majority of the public.

The new technological tools, while welcome and exciting, do little to change the justice system from a structural standpoint. They are, I fear, the equivalent of a new technological way to flog a dead horse. Without redoing the justice system to make it simple, speedy and affordable, it may simply collapse due to its own burdensome complexity, delay and cost, taking lawyers and their future, with it.

Which road shall we choose? The future is in our hands.

Justice under attack

The signs of a darker future are certainly apparent, and voices have been raised calling for greater attention. No less than Madam Justice Beverley McLachlin, the former Chief Justice of Canada has said: “The principles and institutions underpinning the rule of law are under increasing attack, even in Western democracies.” If the rule of law is undermined, then so is the future of justice and lawyers. As lawyers, we need to be seen to work with other stakeholders to find ways to strengthen the rule of law and be powerful and reasoned voices to advocate when it is under attack.

Structural issues

Law is complex. Along with the sheer number of laws, regulations, bylaws and such that apply to everyday life, there is the issue that each jurisdiction has its own laws, in some cases for a relatively small number of people. The BC Law Institute, for example, in its constitution, has as one of its goals to: “promote the clarification and simplification of the law and its adaptation to modern social needs.” Much more can be done to make laws consistent in application and simpler across all types of borders and within jurisdictions as well.

Emerging Issues

Technology, along with other factors, is causing changes in society at a rapid pace. The law has largely lagged behind in providing protections, resulting in corporations and other entities asserting greater and greater powers over individuals who largely are left without effective remedies. For example, The Office of the Privacy Commissioner of Canada recently stated: “Commissioner Daniel Therrien warns privacy concerns are reaching crisis levels and is calling on the federal government to take immediate action by giving his office new powers to more effectively hold organizations to account.”

“Unfortunately, progress from government has been slow to non-existent,” says Commissioner Therrien, whose annual report to Parliament was tabled. “Not only are the privacy rights of Canadians at stake, so too is our democracy and other fundamental values.”

Law loses its value if it fails to grapple with emerging legal issues and provide protections for those in society. This challenge will only continue to grow over time.

Regulatory issues

The rules and operation surrounding civil procedure, criminal justice, mediation and arbitration, administrative boards and tribunals as well as the regulatory environment of lawyers is reflective of the complex legal environment within which lawyers operate. Working with judges and others to adopt processes to regularize laws and streamline and simplify the operation and regulation of justice and regulatory systems are steps in the right direction.

Law Schools

What kind of challenges do law schools train law students to meet? According to the Harvard Law Review in an article entitled, Law Schools, Leadership, and Change by Susan Sturm: “There is a growing sense that law school is preparing people for a set of professional roles that do not match the demands or needs of a changing society. Research has documented an overemphasis on a narrow conception of technical mastery, and an underemphasis on the imperative to connect education with professional leadership for challenging times.”

Sturm continues later in the article: “Issues of justice, problem-solving ethics, change strategies, and inequality also tend to be marginalized within the mainstream curriculum, which encourages students to develop a radically skeptical attitude toward even the possibility of engaging in normative argument or achieving change.”

If we are going to implement the kind of changes that Sturm is advocating, we need to start by training lawyers to meet the challenges of the future head on. We need to emphasize how lawyers can be change agents in defining the future relationship of law to society.

Criminal Justice

According to the Canadian Department of Justice: “The cost of the criminal justice system is high. A Justice Canada report estimated that the total cost of Criminal Code offences to the justice system and society in 2008 was about $100 billion, including tangible costs of $31 billion. Roughly half of these tangible costs were criminal justice system costs. Police account for the majority of expenditures (57%), followed by corrections (32%), courts (5%), prosecutions (4%) and legal aid (3%).” Lawyers can be meaningful players in discussions on how to implement change to reduce the delay, cost and operation of the criminal justice system so that justice can be seen to be done.

Family Law

There is perhaps no area of the law that needs systemic change as family law. M. Jerry McHale, QC stated it well: “Last, but not least, closing the implementation gap – the discrepancy between what we know and what we actually do in family law – is also a matter of changing the underlying adversarial culture of the family justice system to make it less contentious and more truly collaborative. Academics, practitioners and critics have been writing about this change for nearly 40 years! Admittedly, it is no simple task – adversarial attitudes are deeply woven into the history, fabric and methods of the justice system. But the exorbitant fiscal and emotional costs of the long-dominant litigation model can no longer be supported. The system is unworkable, and it is losing credibility. As such, it falls squarely and immediately to the law schools and to the judges, lawyers, legislators, administrators, and service providers who make up the family justice system to come to grips with the problem of adversarial family law culture change for once and for all.”