In praise of advocacy, and a challenge to the legal profession

This blog post is based on the Advocates’ Society Keynote delivered February 20, 2020. Full text of the speech is available here.

“At the end of the day, we need and will continue to need people who can listen carefully, respond thoughtfully, and disagree civilly; who can identify the real issues, martial the relevant facts, and offer persuasive and compelling submissions towards a fair and just outcome. In short, we need excellent and dedicated advocates. I’ve appreciated my many years of working with people who are just that.”

This is how I ended my recent address at the annual gala of the Advocates’ Society, a national organization of lawyers promoting robust, effective advocacy. But before that concluding observation, I challenged those present to use their valuable advocacy skills to advocate for a reimagined legal system. I want to expand that challenge to all lawyers in BC.

So much needs to change in the justice system that right now isn’t working, including:

  • the number of people who find the experience of going to court wholly unsatisfying, if not outright unpleasant
  • the lack of alternative options available to them
  • the delays in getting matters to court
  • the increasing number of litigants representing themselves because they can’t afford the extraordinary cost of lawyers
  • the difficulty these in-person litigants face in navigating the law
  • the dramatic sense of isolation, fear, and frustration they feel when forced to represent themselves.

Some say the legal profession is holding back system change; that lawyers fear and actively oppose change; that the legal profession is culturally too stagnant and conservative to ever change. If that’s true, then the rule of law is in trouble.

There is a trend out there to replace the legal profession with online solutions, even robots, and to address the needs of people with legal problems by experimenting with how legal service providers do business, and expanding who, other than lawyers, can practice law.

Regulatory change and technology, including robots, may well have a role to play in making justice more accessible. Ambitious and promising initiatives include:

  • user-friendly forms accessible online
  • automated systems to help people understand and exercise their rights
  • stream-lined decision-making through artificial intelligence tools
  • online courts.

The impacts of these initiatives are uncertain, and may not be perfect. But that can’t be a reason for accepting the status quo.

We need to base our assessment about what works not on how it affects lawyers and judges, but on outcomes for clients. A just system must be one that responds to the diversity of needs of our population. To be responsive, we must listen to the voices and stories of those whom the justice system is intending to serve.

British scholar Richard Susskind, an ardent advocate for the use of technology in the courts, endorses “outcome thinking”. He uses the example of the manufacturer of power tools that tells its new recruits that they sell holes rather than drills, because it is holes their customers actually want. So the analogy leads to this: clients do not want lawyers and judges, they want just, fair outcomes to their disputes.

Delivering just and fair outcomes will involve technology-based innovation and regulatory reforms. It also requires excellent advocacy and critical thinking. Inaccessible human thought processes should not be replaced with inaccessible algorithms. Excellent advocacy is needed in the boardroom as well as the courtroom, and by people who are resolving their disputes outside of a court setting.

Lawyer advocates also have a key role to play both in making change happen, and in providing the critiques needed to improve on new models of legal service delivery as we try them out. In my years on the bench, I’ve not only had advocates change my mind but I’ve seen the changes to society that have taken place because of great advocacy.

Advocacy is a response to society’s challenges; in the face of a difficult problem, a good advocate shows us a way forward, and explains why we should take it. Going forward, I hope more and more lawyers will use their advocacy skills to take up the challenge of making our system more equitable and just.