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Understanding Plenty: Time, Perhaps, for Another Shift in Culture?

Understanding Plenty: Time, Perhaps, for Another Shift in Culture?

Some five years ago now, the Supreme Court of Canada sent a not so discrete message to the litigation bar that it was time for a “shift in culture” in our civil justice system. The message arose in the context of the ever important, but still to this day elusive pursuit of access to justice. I am referring of course to the call to action of Justice Karakatsanis in the case of Hryniak v. Mauldin[1], wherein she summoned lower courts and practitioners alike to embrace lawmakers’ repeated calls for proportionality in the use of procedure, the whole with a view to promoting fair access to the affordable, timely and just adjudication of claims.

Justice Karakatsanis recognized that procedure and process, an important ingredient in the maintenance of the rule of law, was increasingly being used to obstruct rather than to serve access to justice. The misuse – and even misunderstanding – of procedure, including in that case the common law tool of summary judgment motions, prompted what she perceived as the need for a shift in culture:

[2] Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

(…)

[32] This culture shift requires judges to actively manage the legal process in line with the principle of proportionality. While summary judgment motions can save time and resources, like most pre-trial procedures, they can also slow down the proceedings if used inappropriately. While judges can and should play a role in controlling such risks, counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice. Lawyers should consider their client’s limited means and the nature of their case and fashion proportionate means to achieve a fair and just result.

I, for one, was struck by the Supreme Court’s frank and blunt conclusion that pursuing the proportional use of procedure and promoting affordable access to justice was more a matter of culture than it was a sign of something inherently wrong with or absent from our civil justice system. In other words, the system can work just fine (or at least much better) if you use it properly, proportionately and fairly. The subtitles on my screen read very clearly: Smarten up, lawyers!!

 *****

Those same subtitles reappeared at the bottom of my screen when I recently read the results of an extensive survey commissioned by the Quebec Bar Association in 2015 to measure the psychological health at work among its members. The study, which was led by Université de Sherbrooke researcher Nathalie Cadieux, showed that more than 40 per cent of Quebec lawyers suffer from psychological distress, a set of symptoms sometimes similar to a burnout or depression. These findings were alarming to me, but the sirens starting blasting for real when I learned that a full one half of the lawyers with 10 years or less of practice, including notably those who practice litigation, suffered from psychological distress. Oh dear.

The study focused on two other health indicators: exhaustion and well-being, the latter including an affective and cognitive element which is measured using three principal dimensions: serenity, work and social harmony. In both categories, lawyers with 10 years or less of practice featured prominently, including being among those with the lowest rated level of well-being in the profession. Good heavens!

Quebec Bar Association president Paul-Mathieu Grondin said this in response to the survey’s results:

“We take the psychological health of Quebec lawyers and their well-being at work very seriously. The results of this study will help the Barreau specify and increase its support to its members. (…) We want to encourage the discussion and awareness within the legal community, and we intend to implement concrete measures to offer more resources, and to publicize those that are already available.”[2]

I have to say, I am concerned that “offering more resources” and “increasing support” only serves to heal the symptoms, rather than treat the disease itself. Frankly, I think the profession needs another shift in culture, particularly if we want to encourage young people not only to join, but to actually (and happily) stay within our ranks.

From the very beginning of my practice, I have consistently felt – and never hesitated to proclaim – that ours is a profession that badly mistreats its offspring. This survey only renews my conviction that we as lawyers need first to acknowledge this reality and second to fundamentally change the way we practice law to reduce its persistently negative impact on the mental health of its youngest practitioners.

I recognize that litigation is by its nature a stressful practice, and one that does not always lend itself to “serenity” or “work and social harmony”. We are after all paid by our clients to take on our shoulders their problems, together with all the associated stress and discomfort that comes with these conflicts and disputes. It can be a daunting task at the best of times, but our reward comes not only in the form of a handsome paycheque, but also in the gratifying knowledge that we can meaningfully and measurably help people. Oh what a feeling…

And yet a full 50% of young lawyers are suffering from psychological distress. Let’s not understate this: one half of Quebec lawyers with 10 years or less of practice are struggling with symptoms resembling burnout and depression. If you want to really understand what this means, simply press replay on the recent public and courageous disclosure made by Supreme Court Justice Clément Gascon regarding his deeply personal and at times perilous journey with mental health challenges over the course of his career. Let’s face it, these are no longer issues that can be willed away with a stiff upper lip. Never have been, for that matter.

I think, instead, that the profession needs to openly acknowledge that it is time for a serious change in culture; that we need to promote practice methods and customs that reduce rather than exacerbate the stressful working conditions that are eroding lawyers’ well-being and fostering psychological distress in the workplace.

Perhaps this means redefining (or, quite frankly, simply understanding) the notions of “urgency” and “importance”, both when assessing our clients’ real needs and when considering our own internal deadlines and priorities. Is it not somewhat ironic that the high octane practice of real-time litigation was conceived in the bankruptcy chamber of our courts, where parties are essentially fighting over a corpse?

Maybe the imperative of civil and courteous behaviour needs to be reinforced – and actively enforced – within the litigation bar. Just because our civil justice system is premised on an adversarial process does not mean it should be carried out in an adversarial (read “attack-dog”) fashion. I know from experience that uncivil and overly combative conduct of opposing counsel can virtually ruin and forever impact young lawyers. This type of behaviour simply has to be removed from the practice.

Finally (and I expect I might receive hate mail for this one), it may even be time to reflect upon and understand the concept of “plenty”. Let me explain…To the extent lawyers continue to stubbornly adhere to business models that essentially sell time for profit, now may be an appropriate occasion to revisit just how much of it we really want (or need) to sell. In light of the Barreau’s recent study, I would be curious to know what if any relationship exists between increasing demands on supplying one’s time and the incidence of psychological distress in any workplace. Surely there comes a point where the marginal benefit to the bottom line becomes outweighed by the overall wellness impact of demanding more and more time – billable or otherwise – from young lawyers?

These are but a few humble contributions (I have plenty more) to a discussion that I believe is well worth having: how can we make the practice of law better, and healthier, for all of us? I welcome others to join the conversation, because if we don’t, the results of the next survey may very well be more troubling, all of which leads me to this closing reflection:

“Dick the Butcher”, one of Shakespeare’s more endearing albeit rough and tumble characters, famously said: “The first thing we do, let’s kill all the lawyers”[3]. The Bard should have saved his precious ink…it looks like they’re killing themselves.

________________________________________________________________

[1] [2014] 1 S.C.R. 87
[2] https://montrealgazette.com/news/quebec/4-in-10-quebec-lawyers-suffer-from-psychological-stress-study-shows
[3] Henry VI, Part 2, Act IV, Scene 2

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