So. 30 years in the Justice system. Sorry if I’m harping on that (and ageing myself at the same time) but this has been an odd week, realizing I’ve been toiling in the trenches of family law for, now, over 30 years.
And, as the saying goes, in that time, “I’ve seen some stuff”.
Some good. Some not good.
And today, more than ever, the disconnect between the perceived “need” for justice and “access” to that justice seems broader than ever before.
Well. Firstly, we have a shrinking income. This past week, I watched an excellent documentary, and if you have the chance, I would highly recommend it, called, “Inequality for All“. The film, directed by Jacob Kornbluth, and presented by Robert Reich (economics professor and former Secretary of Labor under Bill Clinton), is a surprisingly well presented and cogent argument in favor of the importance of elevating the middle-class. I say “surprisingly” because I tend towards the small “c” conservative – and yet, found myself opening my mind in the face of pretty convincing argument against the rise of economic inequality in America. (See my last blog as well)
The point is not a political one, it’s an economic one. Namely, that the value of middle-class salary has greatly diminished in our lifetime (or my lifetime anyway).
The discussion is that the middle class prospered greatly post-second world war, as education became more accessible and many, many more people moved beyond physical labor jobs in to areas requiring higher education. And this was good for the economy, because more people buying more stuff means, economic growth.
Stay with me here.
The discussion then proceeds to say how the value of those salaries began to diminish relative to inflation, which was, however, offset by the significant expansion of women into the workforce. One income families became two income families – and people kept buying more stuff. Economy continued to grow.
Then – as those two salaries diminished in value – well, we were fortunate to have greatly expanded access to credit. Credit cards, loans, low interest mortgages – we had expanded “available” money. And people bought more stuff, and the economy grew.
Then what? We all know. The bubble burst. The time came to “pay the piper” and the diminished value of middle-class paychecks were unable to continue to expand lifestyle purchases and at the same time, repay debt. And the economy largely stalled. And continues to stall for the middle class to this day.
Which has what to do with “justice”?
Well, one of my favorite parts of the documentary is an interview with a very rich man – Nick Hanauer – who essentially sold pillows – “Pacific Coast Feather Company”. Nick since branched out into Amazon and other ventures, and is extremely wealthy. But he points out this simple truism. For all his money, he only sleeps on one or two pillows. And while his automobile is top of the line, he can only drive one car at a time. The point being that the economy is driven by “more people having more money”, not a few people having wayyyyy more money.
Which gets me to “justice”.
If we have a diminished capacity for our middle class to maintain their lifestyle in the face of reduced value of salary and expanded debt obligations – what happens when a trial that used to cost $15,000.00 now costs $50,000.00?
The answer is pretty simple. They become self-represented litigants.
Combine that with the expanded ability of the internet to allow people to enter the “doors of the courts” and you have the perfect storm, which is greatly expanded numbers of people being unable or unwilling to pay the “full meal deal”, and finding their way, quite easily INTO the system, but getting completely overwhelmed once they get in the door in finding their way to resolution.
Which brings me, finally (thank-you for your patience) to the point. Which is, knowing these people are now “here”, and knowing that the law is, of necessity, complex and difficult – how do we either make it affordable for them to have a lawyer with them, or, alternatively, less traumatic to find their way on their own?
And this raises the question of how much justice is “enough”.
Some time ago, during a meeting with an access to justice group, I spoke to a judge and commented that I could design a system which cost the litigants essentially nothing and delivered justice in a day, not over years.
Flip a coin. The litigants put forward their proposed position, and you just flip a coin. Neutral, quick, and cheap. Now – it would also be arbitrary – but the issue is it would solve 80% of our justice issues.
So what then? Well, work the system backwards. If a coin toss is too arbitrary, but a week of trial after a year or two of gamesmanship is too expensive (and still hardly perfect), is there a middle ground?
There’s the challenge, and I think the answer. In the effort to mete out “perfect” justice, we have interminable disclosure motions, lengthy trials, special chambers motions, case management, and assorted efforts to make sure that the system responds to issues – particularly in family law – with greater nuance and consideration – and in the end, that “perfect justice” ends up being outside of the capacity of maybe 80% of our citizens to access it.
Oh. And it’s not perfect. Not even close. It’s human beings doing their best, and even the most capable and well-intentioned make mistakes or misjudge. So – we have a burdensome system, which, at the end of the day, offers results that are still imperfect.
I can get imperfect with a flip of a coin.
Maybe better but cheaper would be a much greater benefit than “best” but unaffordable – which is what we have now.
Because “Inequality for All” isn’t just an economic construct.