[originally published on Slaw.ca]
Back when I knew everything the world was much simpler. Any topic, situation, challenge or choice could be easily placed into one of two categories. Category 1 consisted of matters where I was right and category 2 consisted of matters that didn’t matter.
Back when I knew everything there were no hard choices. Other people’s resources were best directed to ends of my choosing and my own resources were merely allocated between “now” and “soon”, possibly to “later”, but never to “never”.
Back when I knew everything there was no gap between my interest and the public interest.
It may be that my memory of the time, or even of the existence of a time, when I knew everything is a false memory. In any event, reaching the pinnacle of enlightenment is no longer a personal goal as it only seems to recede in the distance. (Perhaps I should ask my four teenagers to remind me what it’s like to still be so close?)
Of course, not knowing everything does not mean you know nothing, it just means you have an unbounded opportunity to learn and grow. It also turns out that knowing everything and getting your way doesn’t compare favourably to the progress and outcomes achievable through conversation, shared effort, shared priorities and occasionally placing the interests of others ahead of our own.
Changing legal markets and meeting the public interest
Ok, now, and without taking offense to the comparison, ask yourself how you and your organization are approaching the changes underway and still to come. Do you know everything and see your approach, needs and views as synonymous with the public interest? How do you define what matters? When advocating in favour of a particular direction for reform or a particular allocation of public resources, what factors influence your position?
At their core and in the details, regulatory reform of the market for legal services and the growing crisis in public access to justice are two very different topics. However, many of the players are the same and the interconnectedness and interdependence of all facets of the administration of justice means that actions taken in one area must be taken in contemplation of their impact in the other.
Fortunately, we are not seeing the archetypal “know everything” player lay down the one true path as all stakeholders are reasonably aware that a multiplicity of interests are at play. Surprisingly, however, we do see a fair bit of sniping directed at (and occasionally from) various organizations such as politicians, governments, courts, judges, law societies, the Canadian Bar Association and others for pursuing conversation and study, and for taking what appears to many to be incremental actions instead of leaping forward with bold solutions. This confuses me. Responsibility for the current state of affairs doesn’t lie at the feet of one player so why should one – any one – bear the accountability to “fix” it (whatever that means). Nonetheless, for many, the wisdom of the King prevails:
A little less conversation, a little more action if you please
All this aggravation ain’t satisfactioning me…
In praise of incremental improvement, outsiders and experimentation
In an interdependent system, the priorities and actions of any given player will necessarily impact the fortunes of others in ways foreseeable and unforeseeable. It’s natural that engagement in public debates – as participant or even as moderator – will involve a little bit of defending ones turf. After all, we clearly felt there were principled reasons for our past actions so why wouldn’t we defend the right to carry on as before under a new or altered regime?
Moving swiftly to solutions becomes easier to do as the category of matters that don’t matter grows. Ask me to engage in a reform project with narrow terms of reference and my frame of reference is more likely to be on the impacts on my interests than on the opportunities for improvement. Consequently, don’t be surprised if my contribution to the discussion incorporates recommendations that align my interest with the public interest. I no longer believe that I know everything, but if you make reform discussions one where the idealized future state does not contemplate an incremental move away from the present and I will surely behave as if I do.
Because of the propensity for these kinds of behaviours, some have argued that lawyers are irreparably conflicted in these debates as their livelihoods are at stake. Similar existential arguments have been levelled at other stakeholders when defense of their purpose and contribution is accompanied by defense of their need for funding at a sufficient level (indexed to inflation, etc….) to carry out their mission. Certainly, to rely solely on insiders to reform themselves and their system in their own good time would be foolish, but it would be equally foolish to discount their contributions as irredeemably self-interested.
The nature of legal practice, dispute resolution and the administration of justice are no longer closed systems and no amount of effort from traditional players to maintain the status quo or traditional models will have any lasting effect. Whether in the context of regulatory oversight or access to the courts, there is no historical or future ideal to which we can strive. There is only flux. Things were always changing and the rate of change is only increasing.
In this environment, a little humility as we all muddle through to improve our collective lot could go a long way.
Lachance on Law 