New Zealand Law Society - Mind the Gap - closing the justice gap

Mind the Gap - closing the justice gap

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On 7 November 2014, then Chief High Court Judge Helen Winkelmann delivered the 18th annual Ethel Benjamin address Access to Justice: Who Needs Lawyers? She challenged the legal profession to close what she called New Zealand's "justice gap" – the increasingly unmet need for civil justice.

A year on, Justice Winkelmann's hopes for a more accessible justice system, a more just future, staunchly remain. So do her concerns.

Continuing the conversation

There was a "significant level of engagement" in the wake of the address, Justice Winkelmann says.

Plenty of lawyers have been in contact, those who "work at the coalface trying to ensure that people have access to justice, particularly in situations where there is an unequal playing field between powerful institutions or government agencies, and individuals", she says.

Justice Winkelmann
Justice Winkelmann

It's because access to justice-related issues tend to get people's blood pumping. Emotions swell, idealism and economics clash. Politics underpins the debate, while entrenched but largely unconscious concepts of justice and fairness drive it.

"It's the reason why a lot of us, most of us, got into the law – the belief that law can do something good and that the profession is a good profession.

"I think most people do what they do because they think it contributes something good to society. And that's the major reward you get from your working life, that you are doing something useful.

"The law has potential to be an amazing force for good in society. But for it to be enforced for good, people need to be able to access it. That's why I think people really do engage, and it engages them emotionally, with the issue."

Two prominent Queen's Counsel shared their "coalface" experience, agreeing with Her Honour's warning that the increasing cost of justice faced by everyday citizens threatens to undermine Aotearoa's proud claim that it's a nation under the rule of law.

"Individual human rights to justice are in jeopardy, as is our constitution and social well-being" 

In an article, Continuing the Conversation, Auckland's Frances Joychild QC wrote that Justice Winkelmann had "illuminated the most critically important legal conversation of our time, for civil law at least".

Individual human rights to justice are in jeopardy, as is our constitution and social well-being.

The rule of law is a "fading star", Ms Joychild writes, and the legal system increasingly reminds her of Dickensian England, where the poor, destitute, desperate and direly needy encounter legal difficulties but can't find or afford a lawyer to help them.

"From my personal experience, I estimate that at least half the population of New Zealand could not afford legal services, were they to need them," she says.

Many small businesses are also unable to afford, or at least prioritise, court filing fees and other legal expenses, when debt collection can be more efficiently and effectively achieved with the assistance of gang members, intimidation and violence, Ms Joychild says.

"In some parts of society then, the rule of force rather than the rule of law operates."

On top of financial barriers, access to justice can also be impeded by undue delays in judicial process and power imbalance between parties.

Ms Joychild cites one of her files from the month of Justice Winkelmann's 2014 address, and describes her income-tested-benefit receiving client's enduring battle with the social welfare system after their employment ended and their file passed from ACC to WINZ.

After months without sufficient support, the whanau, with three children under 10, were finally back-paid the welfare payments they were due. And then, only after having contacted a prominent lawyer who was fortunately available to help. Their issue, which had been keeping food from the family dinner table, merely involved claiming a benefit they were entitled to.

"The harm inflicted on the parents and children in that time will have consequences for decades," Ms Joychild says.

She says most problems encountered by beneficiaries are not covered by legal aid. They can't afford lawyers. And many have no access to "unpaid beneficiary advocates".

"It is extraordinary that, in this area of major legal complexity, wide government discretions and deeply disempowered citizens, the rule of law is at its weakest."

Who needs lawyers? Rise of the self-represented litigant

Another voice in the conversation belongs to James Farmer QC, who described Justice Winkelmann's address as "probably the most important extra-judicial paper delivered by a Judge in New Zealand in recent times".

He hones in on issues posed by unrepresented litigants, who are the "visible tip of a very large but submerged problem" – the bulk of the injustice-berg being the surely large, but impossible to quantify, mass of people who forgo commencing proceedings in court at all, because of various obstacles impeding their access to the judicial machine.

Nevertheless, self-represented litigants are at the nub of the issue. While it is a basic human right to defend oneself in court, or bring proceedings to have one's rights upheld, most self-represented litigants appear to choose to go unrepresented not out of idealism or the belief in exercising rights but because they can't afford a lawyer.

Former lawyer Bridgette Toy-Cronin has researched what she calls "litigants in person" (LiPs) for a University of Otago doctorate, to be conferred in December, and has kindly shared some of the findings from her examined but yet-unpublished research.

One key perception revealed by the study is that lawyers and judges often draw a distinction between LiPs who can't afford to pay for legal services and therefore must self-represent, and LiPs who "choose" to litigate their own case despite being able to afford at least some legal representation.

More complex

"The reality is more complex than this: in fact, there are a number of overlapping reasons why LiPs litigate in person," Ms Toy-Cronin says.

Ms Toy-Cronin interviewed 34 LiPs, eight court staff, 16 lawyers and 13 judges in an attempt to understand why litigants are going to court without a lawyer, the nature of their experience, and the perception of LiPs by other participants in the court system

Of the LiPs she interviewed, 21 had cases in the Family Court, three in the District Court and 10 in the High Court, and of that group five had some courtroom experience, litigating a third or subsequent matter.

She found that, while the reasons LiPs go to court without a lawyer vary and overlap, financial barriers formed a part of all 34 interviewees' motivations for self-representing.

NZ coat of arms

Most working people earn more than the $22,366 annual income threshold for legal aid in civil matters. Those who earn less often don't wish to accept legal aid because it is a loan, with "onerous" conditions imposed, like interest rates and charges being placed over property.

Others who wanted to accept the legal aid loan terms struggled to find a lawyer, either because none specialised in the appropriate field or none was willing to work for legal aid remuneration.

Quoting one LiP from the study: "You can't pay $500 per hour when you earn $500 per week".

"Many people could pay something for legal services, and many had paid for a lawyer at some time, often incurring bills of $20,000 to $40,000 or more, but they had exhausted their budget without resolving their case," Ms Toy-Cronin writes.

The "common perception" that LiPs choose to handle their own cases because they believe they are "better than a lawyer" was exaggerated in the minds of lawyers and judges.

Other reasons for litigating in person included: having a negative experience with a lawyer – from disrespectful communications to excessive spelling and grammar mistakes; a belief that lawyers are not truly independent advocates; the idea that a lawyer would bring little advantage – for example because they just "fill out forms"; belief that a lawyer failed to progress the case; because they felt they had requisite litigation experience from previous cases – particularly in Family Court matters; and finally the faith that a lawyer was unnecessary because the "truth" would come out in court regardless, or at least the judge would help them with their case.

Ms Toy-Cronin also writes that government policy intended to limit public spending may also encourage people to self-represent, such as "user-pays court fees", publication of guides to law and process online, and the 2014 family justice reforms.

"Some of these measures suggest to the public that the courts are a public service for consumers that can be directly accessed by citizens. Some LiPs can be seen as taking up this invitation."

That is their right.

But whether self-representing is the right thing to do in any given legal proceeding is usually answered by reference to insufficient funds rather than idealism or the exercise of right.

And when LiPs conduct their own case to save money, invariably the court system itself and its participants pick up the bill, paying both in cost and time.

"Innovation and experimentation is needed, and ideas like law clinics, limited retainer services, and online advice services should be explored" 

Inherent conflicts

Ms Toy-Cronin's research finds that inherent conflicts between the roles of judges, lawyers and court staff are exacerbated by the presence of LiPs.

"Judges must appear to remain neutral between the litigants, for instance, but they must also try to ensure that substantive justice is done, which may require them to assist one party, the LiP, more than the other.

"Lawyers have a duty to their own client but they also have a duty to the court and to the efficient administration of justice.

"Court staff have an administrative function that suggests they should only provide 'information', not 'advice', to litigants, but often they are personally committed to seeing litigants' needs are actually met and justice is served, which suggests they should, on occasion, give LiPs advice."

At the same time as it is an exercise of right for an individual to take their own legal case before the court, an element of accessible justice, LiPs present difficulties to the wider administration of justice in New Zealand, as they do in other common law countries.

Short-term initiatives may assist LiPs and lighten the courts' load, such as an increase in low-cost legal service and representation providers and clearer guidelines for court staff and opposing counsel, Ms Toy-Cronin writes.

"Providing LiPs only with information is unlikely to be useful, and may simply promote the impression that the courts can be effectively accessed in person, which is rarely the case."

Innovation and experimentation is needed, she concludes, and ideas like law clinics, limited retainer services, and online advice services should be explored.

But, ultimately, Ms Toy-Cronin calls for a review of the civil justice system, "to produce a system in which more principled choices can be made about which cases come before the courts and about how much time and procedure they should be allocated once they come there".

How many?

"There are no reliable statistics on this matter, although estimates are in the range of 10% to 20% of litigants in many areas of civil law, with higher proportions in appeal courts," her research project states.

Mr Farmer says it's the "failure of legal aid in New Zealand" that has led to the increase in litigants in person, although it is a sea change experienced across the Commonwealth.

A Ministry of Justice spokesperson says there is a lack of reliable statistics in New Zealand because until recently the ministry did not routinely record appearances by self-represented litigants.

"Under recent changes to the way we record court information, this information is now being captured across the courts.

"While the data is currently not yet sufficiently robust to provide an accurate picture, we will be able to provide a more definitive picture of the trends in the future," they say.

"It's the failure of legal aid in New Zealand that has led to the increase in litigants in person"

NZLS librarian Robin Anderson says the Ministry's new policy should create a clearer picture of how many unrepresented litigants take cases before the New Zealand courts.

A quick search of 2015 cases in the LINX database indicates that nearly half of Supreme Court appeals have been brought by unrepresented appellants, and 20% in the Court of Appeal.

A recent South Australian Law Society publication cites estimates that 39% of civil cases across the Tasman involve at least one party that is self-represented.

Former Australian Chief Justice Gleeson is quoted: "Providing legal aid is costly. So is not providing legal aid."

Cuts in and restrictions on legal aid are a "false economy" Justice Winkelmann said in her address, because of the greater demand placed on court resources and time by the LiP who does not qualify for financial assistance.

"Beyond the question of economic cost, however, a larger problem is the effect of the unrepresented litigant on the efficiency and fairness of the judicial process," Mr Farmer writes.

Justice is about achieving just outcomes. Just outcomes require just procedure. It's the assumption that parties through their legal representatives are familiar with both substantive and procedural law that founds the adversarial system on which our common law develops.

Litigants without lawyers could be forgiven for failing to master the rules of evidence, pleadings and trial procedure in the few weeks or months they may have before their case is heard. Most lawyers learn these myriad rules as their career progresses, and after at least four years of law school. They have been developed over centuries, after countless applications and modifications and rationalisations.

Simply put, law is complex, and lay litigants can't rightly be expected to represent themselves as well as a lawyer, though that is their right if they choose it or financial circumstance demands it.

Efforts to simplify the process include the publishing of guides and precedent forms by the Ministry of Justice, Community Law Centres and others.

But ultimately, judges and opposing lawyers are regularly drawn into assisting a litigant in person to help them present their case, which raises issues of efficiency, independence and propriety.

Call to arms

Justice Winkelmann, then and now, calls for action from individual lawyers.

"We need to think about new models of working" 

She beseeches practitioners to "strive to meet" the challenge. But she also says lawyers' professional bodies should "step up", because "there are some changes that need to be made that lawyers can't achieve themselves".

"We have a market failure going on," she says.

There are a lot of lawyers trained each year, many of whom start law school wanting to make a difference, to change society for the better.

"And yet, most lawyers in the lifetime of their careers will never get to work on those kinds of files. A lot cannot even get work.

"So we have this big demand for legal representation that is not being met.

"People cannot access courts, cannot access judges, and cannot access lawyers."

"We need to think about new models of working," she concludes.

So what are lawyers and others around New Zealand doing to close the growing civil "justice gap" that is keeping many out of court and forcing some to self-represent?

Amending the intervention rule

What is known as the "intervention rule" has been in place for most of the history of the organised legal profession in New Zealand. It meant barristers could not accept instructions directly from a client but had to be first briefed by a solicitor. The absolute requirements of the rule have become more relaxed in recent years.

Before the changes on 1 July 2015, the exceptions to the intervention rule were relatively narrow and were limited to special instances and not ordinary instructions, former Law Society President Jonathan Temm says.

He says the value and efficiency of the rule was debated for years before the current widening of the exceptions was introduced.

"One of the arguments for opening up the intervention rule was around access to justice, very particularly in the family law area.

"The intervention rule can add additional costs to the public in the form of paying for the intervening solicitor.

"The public didn't understand what the additional expense was for."

Basically, clients and others outside the profession couldn't understand the "bamboozling" concept of needing two lawyers. The new rule allows more barristers to take direct instructions, making it much easier and less confusing for those who need to access justice, Mr Temm says.

The internet – the great leveller

Online legal service delivery is already happening. The United States website LegalZoom has been called the most recognisable legal brand in that country. So is the publishing of online legal information, from guides to process to case law and legislation.

"Legal advice is still a service with the client at the centre ... clients will expect services to be delivered in an increasingly timely and accessible way" 

LawSpot is a fast-growing New Zealand legal advice website and registered charity that is breaking the mould of the traditional legal service delivery.

Its chief executive Nick Mereu says LawSpot started in alignment with Community Law Wellington with two main functions: to deliver legal information to people barred from accessing community law centres for whatever reason, and to develop an "online hub" of answers to common legal questions.

"We thought we could free up community law to focus on delivering its services to people in the community with the highest levels of unmet legal need, rather than doubling up on their time by answering repeat questions," Mr Mereu says.

The site is developed in accordance with client need, he says.

"People increasingly use Google as their 'first port of call' to ask legal questions.

"Google led them straight to LawSpot, and we started to think that people simply needed a place they could have their legal question or problem triaged and sent on to the relevant service – be it community law, a private law firm, or otherwise."

There is currently no other service in New Zealand that already does this, he says.

It's a new model of service delivery that the market has demanded.

"Legal advice is still a service with the client at the centre. Both commercial and consumer clients will expect services to be delivered in an increasingly timely and accessible way.

"The traditional law firm model will need to adapt to survive."

Mr Mereu calls the internet the "great leveller", a "low barrier for people to access information".

By publishing answers to common legal questions online, justice is made infinitely more accessible than the days when law reports and legislation gathered dust on library shelves.

Mr Mereu says common questions come from employees wondering whether their boss's approach to something is lawful or not, and from small businesses seeking help to navigate increasing amounts of legislation and compliance regulations.

These kinds of query, about basic legal rights, should be "open source", he says, and "accessible to everyone".

Change is afoot.

Law firms, Mr Mereu says, are hiring risk and compliance professionals and public relations/government relations specialists. Accounting firms are developing more holistic business services and separate legal practices to assist their business advisories. [To do this, the Law Society notes, they have to set up separate practices, as income sharing from regulated services is prohibited between lawyers and non-lawyers, see s 7(3) of the Lawyers and Conveyancers Acts 2006.]

"The signs of a disrupted legal services market are starting to show, and we are only at the tip of the iceberg in terms of how lawyers use technology to assist in providing legal services."

Unbundling of legal services

"End to end representation may increasingly be a thing of the past," Justice Winkelmann says.

Lawyers will need to reconsider their business model, and whether hourly charge-out rates, billable hours, time sheets and the 9-to-5 work day can continue to be profitable in the digital 21st century, when so few can pay for that service.

"Some time ago the profession lost the light-handed approach it needed to have.

"There are fewer and fewer people who can afford lawyers, yet there is this really significant demand for legal services, so something is going to happen.

"Something is going to give."

One suggestion is the "unbundling" of legal services, the idea of a "limited retainer".

"There are fewer and fewer people who can afford lawyers, yet there is this really significant demand for legal services, so something is going to happen." 

NZLS Regulatory General Manager Mary Ollivier is looking to provide assistance for lawyers around the limited retainer concept. The Law Society hopes to soon publish a Practice Briefing explaining the benefits and potential pitfalls of this model of legal service delivery.

While some lawyers have traditionally been hesitant about undertaking such work, she says it may be the "norm in the future".

"Lawyers offering limited scope retainers, or unbundling of legal services, where only a part of the full assistance that a client may require is provided, can help in ensuring that all New Zealanders have equal access to exercise their legal rights," Ms Ollivier says.

"This is a requirement of a civil society and advances the rule of law."

Offering limited retainers can "bridge the gap" between those few who are eligible for civil legal aid and those considered able to fund their own representation but who in reality could not do so without enduring significant financial hardship, she says.

Limited advice, for example to assist a litigant in person to prepare initial pleadings and/or affidavits may also assist the court and the wider administration of justice, even when the litigant in person self represents during proceedings. Lawyers acting in this limited capacity may offer more benefits and fewer pitfalls than the McKenzie friends prevalent in other jurisdictions and increasingly common in New Zealand.

"The 'affordable option' of a limited retainer has been popular in the United States for some time" 

"This solution is not necessarily a new model," Ms Ollivier says. For example, an executor frequently might request a lawyer to apply for probate in the administration of an estate with the executor carrying out the rest of the work. It is also prevalent following recent changes to the legal aid system where there is limited representation in the Family Court and has been the case for many years in relation to the role of a duty solicitor.

The "affordable option" of a limited retainer has been popular in the United States for some time, she says, and experience suggests that the chance of being sued for negligence on a limited retainer is low, as client satisfaction is usually increased by the provision of "tailor made" retainers that clients understand and can afford.

Nevertheless, limited retainers do carry inherent risk, because clients will be required to make decisions on legal matters with which they are not familiar and have not been directly advised.

Lawyers' access to relevant information may also be limited, obscuring the nuances of a case.

"Some lawyers are reluctant to undertake this work because they believe such an arrangement carries with it some risks to the client and themselves. Other lawyers are too busy, have sufficient clients already and see no need to change their business model. Some do not want to pass over control of files to clients. Others believe that the reputation of the legal profession to deliver high quality work is compromised by taking on work on a piecemeal basis," Ms Ollivier says.

"There is the potential for confusion between the client and the lawyer as to the scope of the work to be done that may lead to dissatisfied clients, complaints and potential negligence claims."

A more detailed analysis of limited retainers will be published soon, but in the meantime Ms Ollivier stresses that "communication is absolutely essential, and the success or failure of such retainers frequently turns on the ability of the lawyer and client to communicate with each other".

If communication is carried out effectively there will be fewer complaints, more client satisfaction and opportunity for lawyers to increase their market share and attract new clients.

Also important to consider are the Rules of Conduct and Client Care, especially rule 3.5(c), which states that any provision of services that limits the extent of a lawyer's obligation to the client, or limits or excludes liability, must be fair and reasonable having regard to the nature of the legal services offered and surrounding circumstances.

Change won't happen immediately but it will happen. Clients are beginning to demand it. Research suggests that corporate client dissatisfaction with traditional legal service models might be a partial explanation for the increasing proportion of in-house lawyers, Ms Ollivier says.

As Justice Winkelmann observes, "the profession is going to respond".

"The obvious way to respond is to start working differently."

Taxpayer v 'user pays'

"Both cost and delay, barriers to justice expressly mentioned in the Great Charter, continue to have the potential to deny justice" 

In Napier earlier this year the New Zealand Bar Association (NZBA) held its annual conference, with access to justice-related issues as its theme. Justice Winkelmann spoke, as did Chief High Court Judge Geoffrey Venning who harked back to the Magna Carta as having enshrined the at least 800-year-old lawyers' obligation to maintain and improve access to justice.

"It remains a fundamental objective that we, as guardians of the rule of law, have an objective to pursue," he said.

Both cost and delay, barriers to justice expressly mentioned in the Great Charter, continue to have the potential to deny justice.

Political ideology widened the gap, Justice Venning noted, the "market driven approach" to the increasing cost of public services requiring greater financial contribution from the users of those services.

"In real terms that has led to a significant increase in Court fees over the last 20 years."

Filing a statement in the High Court in 1992 cost $140. Today, it approaches $1400. A five day High Court hearing in 1992 would have cost, adjusted for inflation, about $4,000, or four times less than an equivalent hearing today.

Despite the influence of a "user pays" approach to justice and climbing court fees, the tax payer still covers about 85% of the cost of operating the courts, Justice Venning said.

There is justification in public spending on private litigation, he said, because civil judgments do not merely provide private benefit. Their precedential effects are an "important means by which society and commerce is regulated for the future".

The other direct cost barrier to litigants is lawyers' fees.

Civil legal aid thresholds are low, and even in criminal cases where legal aid is offered without income testing, recent changes to the remuneration rates for lawyers has led to experienced counsel declining to retain such clients, he says.

Many lawyers do pro bono work, usually on top of masses of other files.

"However, such attempts should not have to be progressively relied on in order to plug the gap that exists in the provision of legal aid, which is a social good," Justice Venning says.

But money is politics, and practical solutions are called for.

Triage – who needs help, what solutions will work?

NZBA President-Elect Clive Elliot QC says the time for talk is nearing an end. It's time to "do something" about improving access to justice.

"It's our intention to get something tangible happening," he says.

"It's about actually doing something.

"If we get two or three serious initiatives off the ground, that would be great."

"The time for talk is nearing an end. It's time to do something about improving access to justice" 

He says a working group was established following the conference, which includes senior and junior barristers, those who represent low-income earners as well as top-end commercial litigants, and judges from various levels of the bench.

With their first meeting this week (24 November), the group plans to discuss wider access to justice impediments, civil and criminal, with a view to triaging issues, assessing feasibility of solutions, and reaching consensus on which initiatives to pursue and with which priority within the coming six months.

An important aspect often overlooked is the plight of middle income earners and small to medium businesses who, like the poor and destitute cannot afford legal and court fees, but do not qualify for legal aid and are not in a position to litigate their claims.

"Justice should be accessible to all," Mr Elliot says.

One idea with potential to improve both access to justice and the public's perception of the legal profession and system is the "clearing house" – an initiative trialled elsewhere in the commonwealth, which brings junior and senior lawyers together to assist claimants to pursue, pro bono, public interest litigation.

Of course, such a system calls into question which claimants merit assistance, which cases are truly in the public interest, as well as the practical issue of how to free up lawyers' time to allow them to engage with such work.

Clearing the litigation backlog

Justice Winkelmann supports, in principle, the establishment of something like a "clearing house" for litigation, particularly public interest litigation.

It's important that people see justice being done, that they understand the law can assist, and can be accessed, she says.

"But you can't really base it on the heroic efforts of individual lawyers. You can't just ask all these lawyers to work for free."

Nevertheless, partners in some large firms have told her they are keen to give their young lawyers the opportunity to litigate, to "help people with real needs get redress through the courts".

"They are very keen for their lawyers to do this work pro bono, because they are facing this issue with young lawyers not seeing what's in the law for them.

"They are asking, 'what's in the law for me?' 'Do I really want to spend all my time doing electronic discovery?'

"They want to show young staff that the law is an exciting and rewarding profession.

"And they want them to have the opportunity to be trained, to go to court and deal with clients."

Of course, it's academic until theory is turned into reality.

papers on a desk

That's something the Auckland Community Law Centre (ACLC) is working on.

"The mission of the ACLC is to provide access to life changing justice," says administration practice leader Darryn Aitchison.

"This is the principle on which we were founded nearly 40 years ago, and is the principle that continues to drive our strategy and daily operations."

Life changing justice comes in many forms, he says, including: keeping someone in employment or with an income coming in, keeping them in a home, protecting them from harm or abuse, freeing them from the tyranny of third tier lending practices, or assisting a young person to avoid a conviction.

"Access to justice also takes several forms.

"Our work is focused on early intervention and dispute resolution. This approach is built on the principle that 'justice delayed is justice denied'.

"Most of this work happens through advice, self-help tools (such as template letters), and ongoing support. In more complex or serious cases we provide greater levels of support, including full representation services," Mr Aitchison says.

He says community law initiatives face many challenges, key being matching resources to demand, especially since law centre funding was frozen in 2008.

ACLC has three-and-a-half full-time equivalent caseworkers who serve 5,000 clients each year.

"Just meeting our current demand keeps us at capacity.

"There is a risk of being swamped by any strategy to increase our profile, increase demand, or increase the complexity of our work."

Increasing capacity would usually require increased funding, but ACLC is exploring how to grow the level of pro bono support it receives to support operations, improve quality and breadth of services, and to support establishment of a pilot pro bono litigation "clearing house".

"This pilot service aims to create a process and network for outsourcing life changing work to pro bono lawyers. The range of possible cases is large, but includes employment mediations, benefit review committee hearings, civil debt, lay litigant cases, and public interest cases. These are all issues that we can do more of if we have more lawyers willing to take these on."

Mr Aitchison says access to the service is means tested and merit tested.

"While the precise parameters of the merits test, which will be conducted by a panel, are still being worked out they will be along the lines that the matter must: have a reasonably strong prospect of success, be of a nature that a prudent person would risk resources to litigate, and in all the circumstances be a prudent use of pro bono resources.

"It is early days as we develop the processes to support this service.

"While the number of cases is low at this stage we are optimistic that the model can be scaled up quite quickly. The ability to leverage off an existing infrastructure is one of the things that makes this initiative so exciting."

'Humanising' the law

Any discussion of access to justice should note that the judicial system, the institutions and individuals that comprise the legal profession and wider justice sector, must be approachable by all who wish to access it.

For law to be a meaningful force in citizens' lives, the ink that underlines our social contract with the state, which grants and enforces our rights, then people from all levels of society must feel as though the law is for them. Government by the people, for the people, not something foreign and imposed.

On page 24 Secretary for Justice Andrew Bridgman makes the same point, that the court system is not an end in itself, but a mechanism by which people can expect to resolve and settle disputes.

The system and its administration are not sacrosanct, he writes, and will change as society changes.

"What is sacrosanct is that people are held accountable for breaking the law and people have a forum to have their disputes resolved, a forum that is impartial, that they trust and that provides for a fair hearing.

"The reality is that for many people that come into the Court system, they find it foreign, antiquated, inaccessible and expensive."

Two things happen, Mr Bridgman says, when the system is not seen by the public as "accessible, understandable, fair and efficient" – people decide to settle their disputes in other ways or not at all, and the courts risk losing legitimacy as a public institution as people question its relevance to their lives.

Justice Winkelmann has also described the legal system as a foreign land for those unfamiliar with its complex contours and topography, and Ms Toy-Cronin's research reveals a similar dissonance that many feel, a disparity between their lives and the legal system that regulates them.

empty courtroom

LiPs who do go to court are often befuddled by the rules of procedural justice into thinking that substantive justice in their case has been forgotten or ignored by a system that they don't understand.

The belief, particularly among young people, that lawyers and judges are not independent, that "the system" is corrupt, a tool by which the rich get richer, has to be countered at an early age. The professional reputation of lawyers may long have languished near the bottom of perceived trustworthiness lists, but, and in New Zealand especially, this is mostly misperception, a misunderstanding.

Rules of client care and conduct regulate behaviour, but professional standards of integrity inherently bind the small New Zealand legal community, where deceptions and disrespect are quickly identified and ostracised by the profession.

New Zealand consistently ranks low on global surveys of corruption.

While never perfect, our democracy and justice systems are a role model for the developed world.

"New Zealand consistently rates highly in rule of law indicia," Justice Winkelmann says, "but does that mean it is great for everybody? No. Does that mean we should be complacent? Absolutely not.

"It is a treasure that we have to keep on fighting to preserve, maintain, polish."

Nevertheless, the rule of law is "aspirational", she says, an ideal not a minimum standard.

"Even if you had all the funding in the world, there would still be obstacles to accessing justice."

The point is to lower the barriers as far as possible.

That will require business innovation, regulatory change, a cultural shift, and hard work from the entire profession and wider justice system.

But individual lawyers can make a difference too, can make justice more accessible merely by the way they interact with their clients.

"We need lawyers with curiosity, imagination and empathy," Justice Winkelmann says. "They need to be curious about the lives of the people they represent. They need to understand something of their circumstances, socioeconomically and ethnically, and about the lives they have lived, and will return to. That way, when they come to talk to the court about that person, they can convey something of that person to the court.

"They need imagination because they need to not just consistently do the same thing they have always been doing. Any situation can be dealt with in a court in many different ways.

"They need empathy, because they need to care about their client, and they need to convey to the court that they care about their client, so that when a judge sees a person they are not some one-dimensional person.

"The lawyer should bring them to life."

End of conversation?

"The profession needs to explore new business models," Justice Winkelmann says.

"It's a hard thing to ask your Law Society or Bar Association to do, but who else is going to do it?"

Individually, she calls for lawyers to remember why they started down that track in the first place.

"Recapture your passion for law," she says, "and for the positive impact it can have on society.

"Remember the values that our profession stands for."

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