The Chief Justice of Western Australia recently delivered a lecture in relation to Access to Justice: the ability of people in the community to effectively utilise the legal system and evaluate the performance of the legal system which operates on their behalf. The Chief Justice identified one of the barriers to Access to Justice as being cost. This brief article focuses on the factors identified by the Chief Justice that are driving legal cost and the steps to be taken (by clients and lawyers alike) to reduce it.
The factors driving legal cost include the following:
1. The labour-intensive nature of the work;
2. The adversarial nature of the process – (where lawyers on opposing sides are each taking the same steps to prepare their respective clients’ cases for trial);
3. The unpredictability of litigation;
4. Time billing;
5. Duplication of work arising from the structure of the profession;
6. Market regulation which reduces competition and market entry; and
7. High overhead costs.
What is the solution?
In relation to the steps that can be taken to reduce legal cost and increase Access to Justice, the Chief Justice recommended:
1. The Internet could be better used to provide information to prospective clients and enable them to identify the nature of the issue and the means in which it can be resolved;
2. Clients obtaining early non-definitive advice on the merits of their position (before undergoing the inevitable cost of litigation);
3. Moving away from input costing and moving towards outcome value costing (for example, “No win no fee” and fixed fees);
4. Providing better information to consumers (perhaps similar to 1 above) the Chief Justice referred to a possible “Trip Advisor” website for law firms (a travel website that assists travelers in gathering travel information and enables them to post reviews and opinions);
6. Greater utilisation of Alternative Dispute Resolution . The Chief Justice pointed out that more than 97% of cases lodged are resolved without trial, often as a result of court-based mediation. His Honour has suggested providing State-resourced mediation services independent of the court system at a modest fee;
7. Reducing overheads for law firms; and
8. Better matching pro bono service providers with clients.