Alternative Law Journal
by Hazel Genn; Hart Publishing, 1999; 383 pp; £19.
by Hazel Genn and Alan Paterson; Hart Publishing, 2001; 391 pp; £21.
The administration of justice has received unprecedented attention in many rich western societies over the last 20 years or so. For example, case management has been introduced into courts, alternatives to litigation have been expanded, and mechanisms designed to improve access to litigation such as class actions and contingency fees have been allowed. These generally worthwhile reforms have often been the result of government-appointed committees charged with identifying problems and proposing reforms to the administration of justice. The government committees were assisted by public servants, administrators, judges, lawyers, legal academics, systems analysts and others when they went about this work. It was, therefore, a form of top-down reform process conducted by capable and knowledgeable experts.
One of the curious things about this reform process, however, is that the people who actually have to use the justice system to pursue justice have rarely been consulted. This means that a number of important and fairly obvious questions have usually not been asked. For example: What problems do ordinary people experience that have, at least potentially, a legal remedy? What do people do in response to these problems, including whether they use the justice system or deal with the problem themselves? If they used lawyers and courts, or the alternatives, what did they think of their experiences? Did they achieve their goals in the process? And overall, what did they think of the legal system, including lawyers and judges? While data from the users is obviously not absolutely essential to the reform of justice administration, it would almost certainly be enhanced if that information were included. It is a bit like a puzzle where the picture is complete except for those missing two or three vital last pieces. The missing pieces mean that you cannot see what the puzzle as a whole looks like or be sure of the precise impact of those pieces.
In these two books, Hazel Genn and Alan Paterson, from England and Scot land respectively, have published empirical research that begins to provide the missing pieces of the justice administration puzzle. They demonstrate that the experiences and views of users of the justice system are indeed integral and valuable to the reform of justice systems. The research reminds us, for example, of the variety of legal or justiciable problems, as Genn refers to them, that are experienced by ordinary citizens. It also reminds us of the often complex and multi-faceted steps that citizens take when they try to respond to their legal problems. And it reminds us that most problems that have a legal solution do not come to the attention of lawyers, judges and the courts. Instead most legal problems are dealt with outside the formal legal system.
In brief, the research surveyed ordinary citizens about whether they had experienced any of a common range of problems that had a remedy in civil or family law, and their experiences if they had done anything about those problems. In other words, rather than examining the legal system from the top-down perspectives of judges, lawyers, and justice system administrators, the researchers adopted a bottom-up approach and asked individuals about their paths through the justice system. Such research is rarely attempted despite the fact that justice systems are designed at least in part to serve the citizens as well as the officials who administer them. Previous research often focused on low-income or other disadvantaged groups alone. This 'legal needs of the poor' research as it is referred to, is undoubtedly important because it tells us about the experiences of the most disadvantaged groups in society. Ronald Sackville's study, Legal needs of the poor, published in 1975, is the most well known Australian example of the genre. Such an approach does not, however, provide a comprehensive picture of the experiences of all social groups in a society. By contrast, the comprehensive nature of the Genn/Paterson bottom-up research provides a detailed under standing of the legal problems people experience in that society, how they respond, the consequences of doing so, and what they think about the legal system.
The English and Scottish projects used a similar three-stage research method. In the screening survey in Eng land and Wales, for example, a random sample of 4125 people over 18 years, were asked if they had experienced any of a list of common civil and family legal problems in the previous five years. Intensive interviews were then conducted with the 1134 people who had reported experiencing problems in order to find out how they had responded and to identify the consequences. Finally, a group of 40 people who pursued their cases to a decision were interviewed about their experiences of, and attitudes towards, the justice system.
While there are a numerous important findings in the research, space restricts me to highlighting some of the more interesting results. First, a surprisingly large proportion of people reported experiencing common civil or family legal problems. The researchers found in the initial screening survey that over the five-year period, many people had experienced one or more of common civil and family law problems. Overall, 39% of the population had experienced one or more of the problems. The most commonly occurring problems related to faulty goods or ser vices (11%) and money problems (9%). But in general it is fair to say that the legal problems occurred in many areas of the respondents' lives.
Second, most legal problems do not come to the attention of lawyers and courts. Instead, the research reminds us that most people attempt to resolve the problems themselves through strategies such as negotiation and other forms of self-help, or by contacting various organisations such as local councils to enlist their assistance.
Third, and not unexpectedly, the researchers found that the few respondents who had made their way through the courts had much respect for the justice system.
The research, therefore, has important implications for the reform of legal systems and particularly for the design of legal aid schemes that try to assist low-income and other disadvantaged citizens to deal with their legal problems. The researchers highlight the difficulty of finding a balance between supporting self-help strategies and offering professional legal aid services. The research demonstrates that the most vulnerable groups in these two societies, including the illiterate, less-educated, recent migrants from non-English speaking backgrounds, and the disabled fared much worse in responding to legal problems. Self-help strategies were far less successful for these groups than for the well-educated and higher income groups. It takes resilience, confidence and determination for a person to pursue a legal problem to resolution by means of self-help. The difficulty for governments and legal aid schemes is to offer effective assistance to those who are able to pursue self-help while at the same time and within tight budgets offering assistance in the form of lawyers and the courts. In these two books, Genn and Paterson highlight this important dilemma.
The two studies also demonstrate the value of conducting similar research in different societies. Curiously, for example, the English respondents reported experiencing higher levels of common legal problems than the Scottish respondents. It is difficult to identify precisely why this should be so. Genn and Paterson are clear, for example, that it is not a result of research method errors. It may be that in the end the Scots are for some reason simply less conscious of legal problems than people south of the border.
Finally, the value of this type of bottom-up research is beginning to be taken seriously in a number of societies. Significantly, the Legal Services Com mission in England, for example, has decided to conduct a similar study every five years in order to monitor changes in the legal health of that society. Researchers in a number of other societies including the Netherlands, Norway and Canada are also planning or undertaking similar studies. Perhaps it is also time that Australia began to lis ten to the views and experiences of the people who use the justice system.
Francis Regan is a researcher and teacher in Legal Studies at Flinders University.