How to make the civil justice system more accessible, discussed by a panel of experts

Rethinking civil justice in Aotearoa

Civil Justice is the arm of our legal system that doesn’t involve criminal or family court matters: things like disputes over property, debt recovery, finance or estates. It’s supposed to be available to everyone, but its cost denies justice to many simply because they can’t afford it. This discussion, recorded in association with the University of Otago, brings three experts together to consider the problem and suggest some answers. Some edited highlights:

Justice Miller:

I think it's too expensive for people to come to court.

Guyon Espiner:

In the High Court, you're looking at $6000 or $7000 a day?

Justice Miller:

The major cost is not the fees that the court itself charges. It's the cost of legal services. All the court can do is try to contain that, such as by taking a case right at the outset and triaging it, deciding what are the issues and focusing people on those. And if the case is appropriate for it, sending it off to mediation.

Guyon Espiner:

Who would do that?

Justice Miller:

It has to be a judge who's got the power to make decisions about how the case is going to be run.

THE ROLE OF TRIBUNALS

Justice Miller:

We've got a really good model set up now in Christchurch with this new insurance tribunal, which I think exemplifies what I'm talking about. So you bring your [earthquake-related] case, you can file it online, a tribunal member looks at that and gets everybody into a room and sorts out the issues and how the case is going to be processed. He will actually go to the person's house to inspect it, and guide any experts, because in these cases you may need surveyors or engineers. And then you have a limited hearing.

So what the tribunal is trying to do there is to contain the adversarial process. So that you're only fighting about things you really need to fight about. And the consequence of that should be that it costs less. The traditional model with a judge is run on what we call the cuckoo clock principle: you come to court and the judge pops out and decides the winner and then goes away again. In this model the court has to control the litigation, not just in the interests of the parties whose case it is, but in the interest of everybody else out there who's waiting to get access to a judge.

Guyon Espiner:

Could that model be used more broadly?

Leo Watson:

It's a model that has an echo also in the Maori Land Court where there is this sort of safe space to work out the issues with the assistance of a judge in a manner that can make the case ultimately more efficient. So I think there are models like that. And I do think it's got an application more broadly.

LOWERING CHARGEOUT RATES

Leo Watson:

But I'd like to talk about the elephant in the room really, and I can as a practitioner, and that is while the court's doing what it can to make things more efficient, I think practitioners have to take responsibility about their chargeout rates, and how they have been set at a level that is often inaccessible for the normal litigant.

You know, we don't pay that much for a dentist or a mechanic or a plumber, and they are providing a valuable service to us as well. We need to see whether we are actually charging our services at a rate that is making accessibility harder.

Guyon Espiner:

And what do you think is the answer to that question that you pose?

Leo Watson:

Well, I think we have to consider level of service that's been provided, the good that we're doing, and the outcome that somebody who's wanting our services is getting out of it. And often there's quite a disparity amongst those things. I'm not sure whether there's been much practitioner debate about this. I know that it came up in the context of [changes to government-funded] Legal Aid, because the chargeout rates are capped a level considerably lower than the practitioner would be able to achieve in the market. And that led to some practitioners deciding they didn't want to be in legal aid anymore.

INVOLVING LAWYERS ONLY SOME OF THE TIME

Bridgette Toy-Cronin:

Reviewing the price of legal services may also involve thinking about the level of service [required]. Do you need a lawyer to do everything for the whole case? Or can you just get them for strategic moments? This is probably part of the answer.

Leo Watson:

We do that in the health system. As clients, we're able to access information and ask "what are our rights?" it's happening more in the legal profession, but it's got a long way to go to where people feel comfortable asking about an estimate of $20,000, "How have you reached this figure? Can I get some competitive quotes so that I'm more informed as to whether the service you're going to deliver to me is worth it?"

Guyon Espiner:

Well, it's got me thinking about this. Is this an area where disruption could happen?

Bridgette Toy-Cronin:

There is some disruption coming into the market already. There are some pretty cheap wills online. Property transactions to a certain extent.

Guyon Espiner:

You can do that now?

Bridgette Toy-Cronin:

Yeah, it carries risk, of course. Because you don't know what you don't know, but for simple things it can work.

Guyon Espiner:

How far do you think that could go?

Justice Miller:

I think there's considerable potential. What the court really needs from a lawyer is the identification of a claim that the court recognises, and the facts that are relevant to allow the court to decide that. And that's a skilled task. The court doesn't really need the lawyer so much for advocacy. There's a famous English judge who said, “If you take 100 cases, 90 of them win themselves. Three are won by advocacy and the rest are lost by it.”

But where lawyers really do help is in formulating the claim in a way that the court can understand and recognise and deal with. And once the court has the relevant information, I think nine times out of ten, the court will give you the right answer. So it's not a matter of having the most expensive lawyer to deliver the most polished presentation on the day. Courts are really not interested in rhetoric. They just want the salient facts.

Now, whether you can deliver that service otherwise than through the traditional model is a really  interesting question. I think to some extent, you can by using online forms, which ask you a series of questions: "What's your name? Where do you live?" That kind of thing. And then, using your answers, the system populates the form, giving the court the information that it needs. It does a translation service because when people formulate their own claims, they often put a lot of stuff in that they consider salient, and miss out things that really matter to the court. And so there's a risk, without the lawyers, that you'll get it wrong.

ONLINE COURTS

Bridgette Toy-Cronin:

This is part of a movement that's popped up mostly in Canada, where we're starting to see online courts. Trying to construct portals where people can interact with them and get their claims out in a way that is coherent both to the court and also to the other party. Of course, you've got to convince the other party that they should settle with you. The technology is not quite there, but it's certainly something which has potential.

It's probably unlikely with litigation that you're going to get the same level of disruption, and you're very unlikely to be able to take people out of it altogether expert advice, but you might be able to greatly compress the amount of advice that you need all the tasks that you might need them to do. So not might not have as much so that legal information idea that Leo was talking about as well, good information that's online, good or you know, available through people that you can challenge you can get price transparency, you can shop around, combined with a smaller amount of bespoke advice and in good court portals could add up to something

Justice Miller:

There is potential to unbundle legal services. The traditional idea is that you take your case to the lawyer, they put the name on the record, and they run the case from beginning to end. If you got a lawyer to formulate the claim for you, right at the outset, and then ran it yourself, you would be a fair part of the way there. You might need legal assistance at other points, particularly when you're preparing the evidence that you have to supply to the court, but it need not be the case that you need a lawyer to do everything.

Guyon Espiner:

How do you see that playing out in your field?

Leo Watson:

I think in my particular area of law, it's happening anyway: the ability for a Maori litigant to come to court without the assistance of a lawyer. That's promoted is a sensible way forward. It doesn't always work, but it's certainly doable. I think, we need to be careful of the fact that we're not dealing with a stable product. The Uber pizza today is the same as the Uber pizza next week. Whereas in a legal situation, you could well have precedent come down in the interim, and the portal that you've used, and the templates that you've used, have materially changed because the law has changed. It's constantly evolving.

Guyon Espiner:

Could the algorithm be updated at the time?

Bridgette Toy-Cronin:

We're definitely not there yet.

Leo Watson:

The algorithm is essentially what you look to for the lawyer. Before you get to court, you're coming with your dispute, you're testing with the lawyer whether this is worth pursuing or not, what my rights are, what the other person's rights are, and you're hoping that the lawyer has the expertise to be on top of the current law. And that's, I guess what you're paying for, essentially, I'm not sure that we would be in a position yet to make a robot out of that.

SETTLING CASES BEFORE THEY GET TO COURT

The amount of time cases take to get to court is an indicator of the health and efficiency of the court system, according to Justice Miller.

Justice Miller:

The high court has a case management conference early, and then makes a credible commitment to the parties that we will give them a trial – typically 12 months for standard civil proceeding from the date of filing. And when you allow for the exercise of process rights, like the exchange of claims, and disclosure of information, it's a pretty good system.

Guyon Espiner:

So we do OK, comparably?

Justice Miller: 

We do. The High Court gets about 10% of its ordinary civil business to trial, compared to say less than 2% in the US, which we think of as the home of the trial. And a similar number in the UK.

Guyon Espiner:

So about 90% of those cases where a claim is made won't actually go to trial. But you're saying that that's actually a healthy thing? You think that that number's about right?

Justice Miller:

They should settle. Most cases get to court because there's a mismatch of expectation. Someone has got it wrong. The pre-trial process should isolate those issues, and bring the parties to a position where they can reach agreement. And you invoke the state's power of compulsion, by just coming to court. About 30% of cases settle more or less straightaway, just because you've said, "I'm going to court" and you filed the claim. And that is a good thing, a low-cost fix, actually, for those people.

And the state has done that by making available access to a judge. That's why it's so important to be able to say when you file your case, we will deliver you a judge 12 months out and that's your trial date. And don't expect to adjourn it. That model has worked in the High Court pretty well.

More about the speakers

The Honourable Justice Forrest (Forrie) Miller

Justice Miller was appointed to the High Court of New Zealand in 2004, and to the Court of Appeal in 2013. He was formerly chairman of Chapman Tripp, solicitors, where he had a commercial litigation practice focused on securities, regulatory and competition law. He was chairman of Unison Networks Ltd, the electricity distributor for the Hawkes Bay, Rotorua and Taupo regions, and the Wellington Girls College Board of Trustees. In the High Court he was executive Judge for the Wellington circuit. He designed and until 2013 managed the Earthquake List for the many cases arising from the Christchurch earthquakes. For this work he shared the Australian Institute of Judicial Administration Award for Excellence in 2013.

He chairs the Judicial Reference Group, a cross-bench committee working with the Ministry of Justice on an electronic content management system which will lead to electronic filing and case management systems in all New Zealand courts. Justice Miller received an honorary Doctor of Laws degree from the University of Otago in 2019 in recognition of his contribution to the modernisation of the New Zealand court system.

Leo Watson

Leo is a part-time lecturer at Otago’s Faculty of Law, and he is a legal practitioner with over 21 years’ experience in Indigenous Law including Treaty of Waitangi claims, Maori land, compulsory acquisition and public works, administrative law, fisheries, traditional knowledge and Intellectual property, employment and environmental law. Leo represents a range of clients in the Courts and Tribunals, mediation, facilitated hui, and commercial negotiations. His practice is focused on finding solutions, empathy for our whenua and natural resources, and a passion for justice.

Dr Bridgette Toy-Cronin

Bridgette is the Director of the University of Otago Legal Issues Centre, Senior Lecturer, Faculty of Law. Bridgette’s research has an empirical focus, furthering the Centre’s aims of investigating access to justice, the legal profession, judging, dispute resolution and civil procedure. She is interested in socio-legal research methods, as well as studying the intersection of civil justice and poverty. Bridgette has been the Director of the Legal Issues Centre since 2016.

This session was recorded by RNZ in association with Otago University's winter symposium series