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| Daniel J. Escott |
What does this mean for justice? What does this mean for the justice system? You might be surprised to consider that, at the dawn of an era where generative AI tools can legitimately compete for business against lawyers, perhaps justice doesn’t necessarily require the “justice system.”
When we discuss the justice system and the litany of issues plaguing it, the “frequent offenders” are court delays, the cost of legal services and alternatives to legal services. I would suggest this characterization is much more a “legal system” than a “justice system.” This calls up the most existential question of our profession: what is “justice”?
Many have tried divining answers to this query. Trevor Farrow and Lesley Jacobs described “justice” and “access to justice” in their 2020 collection of essays, The Justice Crisis: the Cost and Value of Accessing Law, as follows:
Access to civil justice is principally concerned with people’s ability to access a diverse range of information, institutions and organizations … in order to understand, prevent, meet and resolve their legal challenges and legal problems when those problems concern civil or family justice issues … measured by how helpful the path is for addressing and resolving that person’s legal problem or complaint.
In an exciting and upcoming report from the CIAJ, my co-author (Nathan Afilalo) and I make a conscious effort to zoom out and understand whether these definitions are genuinely the concept of justice or if they’re more specific types of justice. This takes us down a road of unpacking what “access to justice” means and defining what exactly we are trying to access.
Access to justice has taken on a modern perspective of providing access to what are often referred to as the “formal” and “informal” justice systems. The formal system is the world of litigation we all know and love, while the informal system is usually characterized as alternative dispute resolution (ADR) processes and mechanisms. If these are the avenues to access “justice,” then justice at its core must revolve around resolving problems or issues encountered by individuals or collectives. But is it that simple?
The most common addition to this understanding of justice is that justice is the resolution of problems or issues with a legal component. But what is a legal component? Is it an exposure to risk of liability? Is it a viable cause of action? Is it even necessary?
In August 2023, the CIAJ conducted the first-ever Access to Justice Summit in New Brunswick to identify and begin holistically addressing access to justice issues in New Brunswick's family justice system, due in no small part to the leadership of New Brunswick Chief Justice J. C. Marc Richard. In the summit’s After-Action Report on findings and outcomes, one of the primary complaints among the New Brunswick judiciary and key stakeholders in the New Brunswick justice system was that many of the issues litigants bring to the province’s courts aren’t what you would consider “justiciable.”
For many, litigation is an enormous hammer, and every problem looks like a nail. Due to the state of social safety nets and public services, combined with a lack of public education in rights and civics, it doesn't matter whether a problem or issue has a legal component. Once you begin litigation to resolve an issue, it takes on a legal component anyway. In this respect, justice in this age can only be resolving problems or issues encountered by individuals or collectives, regardless of whether it currently has a legal component. With this understanding, justice becomes the quickest, cheapest and least resource-intensive resolution of these problems.
How does AI tie into this? Most people have a midlife crisis at some point. In the case of lawyers, our crisis started when the new kid came to town and said they could do everything we can do for pennies on the dollar, and they’re even faster than we are!
How do we resolve this midlife crisis? As legal professionals, we’re coming to a point where a conversation must be had about our purpose and role in society. Are we only providing legal services? If so, can only humans offer legal services? Or are we serving as instruments of our clients to help administer justice? If we are administering justice, what role do we play in this broader field of justice? What does it mean to be a “justice services professional”?
For better or worse, as AI evolves and becomes further ingrained into the practice of law and the administration of justice, we will find out.
Daniel J. Escott is a research fellow at the Artificial Intelligence Risk and Regulation Lab and the Access to Justice Centre for Excellence. He is currently pursuing an LL.M. at Osgoode Hall Law School, and holds a J.D. from the University of New Brunswick and a BBA from the Memorial University of Newfoundland.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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