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A2J Evolution: Time for a redesign

Why, after 30 years of reports on the access to justice crisis, do we have no real fundamental change?

Man looking out of window

One answer to this question, posed by Nicole Aylwin, assistant director of the Winkler Institute and adjunct professor at Osgoode Hall, may be that the justice system has evolved similarly to our common law, leaving our justice-delivery mechanisms in a deceptively tangled Gordian Knot.

In the common law tradition, each new set of facts forces the law to grapple with human nature, incrementally refining its rules and in theory moving us closer to an ideal world. The trouble is that evolution is not always as tidy as we would like it to be. Over time, the sum of its almost imperceptibly small changes can mask more serious, fundamental deficiencies.

Consider, for example, the recurrent laryngeal nerve, whose circuitous route was popularized by evolutionary biologist Richard Dawkins. In our fish-like ancestors the nerve would have travelled in a straight line from the brain, past the aorta, to the larynx. As we evolved, we developed necks, and the nerve ended up “trapped” on the wrong side of the aorta, forced to travel an inefficient path from the brain, around the aorta, and back up to the larynx.

In each small evolutionary step, it didn’t make bio-economical sense for the nerve to “move” to the aorta’s other side – a small, if imperfect adjustment was always “good enough.” As heads evolved away from hearts, however, the inefficiency became more conspicuous. In giraffes, the same nerve travels 4.6 metres (from head, around the aorta, to the larynx) where a direct route would have been about 18 centimetres.

In evolutionary theory, there is no intelligent designer, and so each generation is stuck with its biology. Poor design need not, however, be a permanent feature of our justice-delivery systems. Though the law may evolve incrementally, legislatures will occasionally seize an opportunity to rethink the law. So will the courts, as the Supreme Court of Canada has shown in overturning jurisprudence and sometimes its own rulings. This process of starting over, in light of new information, is something Aylwin calls “the big rethink.”

Enter the Winkler Institute’s Justice Design Project (JDP), whose goal is to help “students gain a new perspective and stretch the bounds of how to think about legal problems.” The JDP brings students together in interdisciplinary teams to learn design thinking, and apply it to improving access to justice. Students learn to empathize with users, define a problem, brainstorm, intelligently prune ideas, and create low-fidelity prototypes for further testing and refinement.

The JDP started in 2015, when participants were asked to physically redesign a small-claims courthouse. This year’s challenge was to develop technology that would help streamline the Ontario small claims process. Participants, whose expertise included engineering, business, political science, and mental health, created prototypes: an application to help non-native English speakers navigate the courts; an augmented reality game to prompt learning about justice-related services; and an app to help resolve claims under $2,000 outside of court.

One explanation for why the access-to-justice crisis has become so intractable is that lawyers are stuck in entrenched thinking. They follow patterns that prevent them from seeing things – or doing the law – differently. Likely part of the reason JDP students are successful at building creative solutions is that they haven’t yet been hegemonized by the legal profession, but Aylwin is correct in pointing out that design thinking is not beyond the scope of lawyers. The profession, she says, regularly engages design thinking, or “creative problem solving,” when drafting contracts or pleadings, conducting negotiations or mediations, or designing service-delivery models for their clients.

We often talk about how the legal industry is poised for a shakeup, lest it fail to evolve and become irrelevant. But traditional stakeholders in the justice system have so far failed to meet the demands of a public that rightly expects better. And a failure to provide meaningful access to justice undermines rule of law, which is fundamental to our current social order.

It is time for someone to take a bolder approach to solving the access-to-justice crisis. Future-minded initiatives like the JDP hold the promise that we can shake off our evolutionary vestiges, and with a little outside help, intelligently design a better future.