Better Law for a Better World

New Approaches to Law Practice and Education

Liz Curran

• Publisher: Routledge
• Year: 2021
• ISBN:
  9780429602337
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

How as a society can we find ways of ensuring the people who are the most vulnerable or have little voice can avail themselves of the protection in law to improve their social, cultural, health and economic outcomes as befits civilised society?

Better Law for a Better World answers this question by looking at innovative practices and developments emerging within law practice and education and shares the skills and techniques that could lead to confidence in the law and its ability to respond. Using recent research from Australia, practice initiatives and information, the book breaks down ways for law students, legal educators and law practitioners (including judicial officers, law administrators, legislators and policy makers) to enhance access to justice and improve outcomes through new approaches to lawyering. These can include: Multi-Disciplinary Practice (including health justice partnerships); integrated justice practice; restorative practice; empowerment modes (community & professional development and policy skills); client-centred approaches and collaborative interdisciplinary practice informed by practical experience. The book contains critical information on what such practice might look like and the elements that will be required in the development of the essential skills and criteria for such practice. It seeks to open up a dialogue about how we can make the law better. This includes making the community more central to the operation of the law and improving client-centred practice so that the Rule of Law can deliver on its claims to serve, protect and ensure equality before the law. It explores practical ways that emerging lawyers can be trained differently to ensure improved communication, collaboration, problem solving, partnership and interpersonal skills. The book explores the challenges of such work. It also gives suggestions on how to reduce professional barriers and variations in practice to effectively, humanely and efficiently make a difference in people's lives.

The book builds essential skills and new approaches to lawyering for law students, legal educators, new lawyers and seasoned lawyers, judicial members and law administrators to equip them to better respond to community need. It looks at the law in context by also exploring the role of the law in improving the social determinants of health and socially just outcomes.

Part I

The case for change – a need for innovation in the law, teaching and practice

Part 1 draws on research, theories, models and emerging approaches. It examines firstly why the legal system and its practice is currently falling short. It provides some case studies and research on its problems and the negative impact and harm it can cause, especially for some sections of the community. It looks at why this has implications for the substantive effect on the ‘rule of law’. It then suggests there might be a shift in paradigm and proposes ways this might be undertaken. This part draws on many different areas of research and covers a large scope of professional legal practice, the operations of the law, clinic, multidisciplinary practices (MDP) and approaches, legal education and much else. It is a discussion that, for all its innovations and strengths, will require the academic reader’s toleration of generalities. I hope to open up a dialogue that will lead to the exploration of adaptations so to make a legal system more responsive to the community and lead to less harm but to create sustainable solutions.

1Context and recent research

Recent public inquiries in Australia into child abuse, corruption and professional misconduct have altered the public conscience and conversation. Not only have they given prominence to the voice of victims but have also demonstrated some limitations of adversarial approaches in court proceedings.

My research provides a voice for those who are rarely heard or asked. It reveals an inadequacy in legal education, court processes and lawyering styles, poor service responses to people’s problems and systemic barriers (including inadequate funding and siloed approaches by service providers). Rhodeⁱ has undertaken a study with similar concerns in the United States which, although a vastly different climate for the profession, has some similarities and also calls for improved legal education, more client centred and ethical practice, improvements to enhance access to justice and a move to more flexibility in practice.

New ways of reaching out, including strategically solving systemic problems, need to be integral to the practice of law. We need to tackle legal problems at their source and prevent them from escalating to a revolving door experience within the court system.

The critical role of problem-solving and policy reform was apparent in the conclusion of the 2014 Australian Government’s Productivity Commission Access to justice arrangements: Inquiry report where it stated that the improvement of problematic laws ought to be part of a lawyer’s remit.ⁱⁱ This identification is key, because if law is not responsive to community need and seen as relevant, then confidence in the legal system is undermined.

Litigation has its place, as does the role of the court as arbiter. Both are critical in creating the legal precedents that forge standards for the future. But, as recent royal commissions and the research in this chapter reveal, the law can be deficient due to gaps in legal assistance services, and barriers that disincline people from pursuing their rights to the benefit of the law.

Empirical research: the need to change approaches to law and lawyering

The following discussion will examine research that suggests the legal system and legal practice is not accessible or responsive to sections of the community, and that there is a compelling need to change.

Australian research

There is little money available in Australia for empirical research into access to justice. Research studies are often on a small scale and not consistent across Australia, tending to focus on different services and programs because of the limited funding for nationwide research.ⁱⁱⁱ Research is often only conducted when small amounts of money are available or with pro bono support. By comparison, the United Kingdom and other countries in Europe, New Zealand (NZ) and Canada have funded research and surveys routinely conducted and on a large scale.^iv

The Australian Government’s Productivity Commission in 2014 noted that:

The inadequacies of present data collection efforts are widely acknowledged across all types of stakeholders. The commission has received numerous submissions from participants – including providers, government, and community organisations – which acknowledge the absence of consistent, policy-relevant data … Inconsistent data also frustrate benchmarking and make it difficult to understand interactions within the civil justice system.^v

The empirical research we have, alongside inquiries, conducted in the United Kingdom, Canada and Australia (2001–2014) reveal that the most excluded members of society are likely to have multiple and cascading legal problems and struggle to access legal help.^vi Studies show these people are least likely (only 16%) to gain access to legal assistance for problems that are capable of a legal remedy, like debt, poor housing, discrimination, consumer issues and access to essential services for survival.^vii In addition, numerous reviews, royal commissions and other inquiries in Australia, show a system unable to meet community expectation.

This research has revealed that vulnerable and disadvantaged clients with unresolved legal problems may in fact turn to health, social and allied-health professionals for help.^viii The research tells us that these unresolved legal problems can lead to poor health and social outcomes.^ix This can occur if clients’ legal problems remain unidentified; services are expensive or hard to navigate; opportunities for reaching people at locations where they are likely to turn for help are missed or non-legal and legal services are not cognisant of ways the law might help to resolve related problems.^x In addition, key research findings in several of my studies conducted in Australia show that poor previous experiences with lawyers and the legal system have been a deterrent for people seeking help.^xi More recent research, however, gives hope.^xii

The first and most significant Legal Australia-wide Survey (Law Survey) was conducted by the Law and Justice Foundation of New South Wales in 2008, commissioned by National Legal Aid. In the Law Survey, legal problems were categorised into 12 broad problem groups: accidents, consumer, credit/debt, crime, employment, family, government, health, housing, money, personal injury and rights. The main findings were similar across jurisdictions and the study reported the following key findings and conclusions:

1. Legal problems are widespread and often have adverse impacts on many life circumstances.
2. Some people, most notably disadvantaged people, are particularly vulnerable to legal problems, including substantial and multiple legal problems with a sizeable proportion of people taking no action to resolve their legal problems.
3. [Consequently, many of those who do not seek advice achieve poor outcomes.] Most people who seek advice do not consult legal advisers and resolve their legal problems outside the formal justice system [which can in some cases exacerbate or compound problems].
4. The co-occurrence or clustering of certain legal problem groups suggests that these types of legal problems may be meaningfully connected.
5. Some demographic groups have increased vulnerability to legal problems, while others are more resilient.
6. Many disadvantaged or socially excluded groups were particularly vulnerable to legal problems. They were not only more likely to experience legal problems overall, but also had increased vulnerability to substantial legal problems and multiple legal problems.
7. Legal problems often have considerable adverse impacts on a broad range of life circumstances, including health, financial and social circumstances. Just over half of the respondents with legal problems (55%) in Australia as a whole had a ‘substantial’ legal problem that had a ‘severe’ or ‘moderate’ impact on everyday life.
8. Respondents often reported multiple reasons for ignoring legal problems. In many cases, failure to take action was due to poor legal knowledge, other personal constraints or possible systemic constraints.
9. In Australia as a whole, cost was the most common barrier to obtaining help from legal advisers (23%).

1. 10Disadvantaged groups had significantly lower levels of finalisation. [This includes Aboriginal and Torres Strait Islander people], people with a disability, people with low levels of education, single parents, people living in disadvantaged housing, people whose main source of income was government payments and people with a non-English main language.
2. 11In some cases, people appear to have poor legal knowledge and poor legal capability, with some people leaving their legal problems unresolved.
3. 12Disadvantaged groups not only have non-legal needs by virtue of their socioeconomic status, but also are particularly vulnerable to a wide range of severe legal problems and are more likely to struggle with the problems they face.
4. 13Given that legal needs are often interconnected with non-legal needs, [there is a need for more holistic approaches to justice. These could] provide integrated and multifaceted service delivery across both legal and non-legal services in all jurisdictions, and integrated service delivery across legal and broader human services is critical.
5. 14Non-legal professionals could be more formally trained and equipped to identify legal problems and to more systematically provide timely referral to legal information and advice services.
6. 15Fragmentation across legal and non-legal services, across government sectors and across state/territory and federal governments.^xiii

Overview of my research since the Law Survey

In the final stages of writing this text, a new empirical study in Victoria (Australia) was released, further highlighting problems people are experiencing with the legal system and interacting with lawyer.^xiv

I have conducted many small research studies in Australia over the past two decades, particularly since the Law Survey. In some cases, the Law Survey findings and suggestions have shaped service delivery in the programs that I was evaluating, which is encouraging. These research studies build on the findings of the Law Survey but on a much smaller scale, as this independent research was often underfunded or not funded at all.

This research, which has helped in identifying and understanding barriers to e...