Nicole Aylwin, Assistant Director of the Winkler Institute, invited me to participate in the Institute’s 2016 Justice Design Project in August 2016 by providing a short introduction to “Putting the Public First in the Justice System”. I was excited to participate and wondering how I could contribute but I realized that our adventure to date in the BC Family Justice Innovation Lab had already provided an opportunity to ponder this question as well as some helpful life lessons. As always, I learned much from preparing for and participating in this session. The purpose of this post (and the two that follow) is to provide an outline of my brief presentation and hopefully spur a discussion on this challenging topic!
I tackled the topic in three parts:
- Why is it important to put the public first in justice reform?
- How do we put the public first?
- How is this relevant to justice and to the role of JDP students?
This post will focus on the first question.
- Why is it important to put the public first in justice reform?
My quick answer: it is the only way to make meaningful change. I told a story of my law school experience (late 1970’s – when dinosaurs still ruled the earth). I was taught that the role of the lawyer was to be the “expert”. Problem-solving was technical, linear and took a “rear view mirror” approach i.e. applying decisions in the past to the present. I learned (including in my clinical term) to hear a client’s story with the mission of dissecting the story to find the legal issues and to focus on those alone. The client’s full experience was not “relevant” and therefore, for the most part, ignored.
Later in my career I was fortunate enough to become involved in civil justice reform. I learned (the hard way) that it didn’t work well to make change through top-down changes to rules of court. While the reform group was composed of highly intelligent, respected and well-meaning lawyers, Judges and government policy folks, they bumped up against legal culture and by the time the Rules were implemented they had been so watered down that they made little discernible change.
Many years later, I realized that in the justice system there appeared to be a typical cycle: a group of well-meaning insiders met together to diagnose the problem, develop solutions and then write a report (telling other people what needs to be done). The report is received with fanfare and then sits on a shelf for a decade before a new group of well-meaning insiders starts the same process over again. The result? No meaningful change. Why? This is what we needed to explore as part of our Lab journey.
Our conclusion was that an entirely new approach was needed, especially in family law. Others are coming to the same conclusion. But what would that look like? Our first AHA! moment (mentioned in our previous post) was when our colleague Jerry McHale Q.C. pointed out that the family’s journey through separation and divorce was primarily a social issue with a few legal aspects rather than a legal issue with a few social aspects. That turned the challenge completely on its head. The family’s experience was key AND the legal/justice piece was only part (and often a small part) of that experience.
Our second AHA! moment was realizing that we needed to reach outside of the justice system for inspiration and ideas. We connected with Adam Kahane who was incredibly gracious and generous in hearing us out and offering observations. We had in mind his work with scenario planning (he had adapted this approach which was common in the business world to the problem of system change). Interestingly, his response was that since we didn’t want just another report we should consider a “lab”. Huh? We had never heard of a justice lab. He opened a whole new world for us. He explained how a lab needs to:
- Focus on complexity (not just simple or complicated)
- Be systemic (everything is connected; we need to search for root causes)
- Be multi-disciplinary (reach outside justice)
- Be experimental (prototyping, learn from failure)
- Be user-centred (in our case, family-centred; look at things from the perspective of the user)
We developed a Lab long-term goal that was very different from previous purpose statements. It focused on preserving or improving family well-being. There was pushback on this – what does it mean? How would we measure this concept? We stood firm – these important aspects would follow.
It was then that we connected the dots between our work and the deep experience of the business world in human-centred design. My early Slaw post chronicled some of the signposts that led us in this direction (the business world, systems change theory and design thinking).
Human-centred design insists on looking through the eyes of the user, on building empathy and using both the head and the heart. I recommend John Alber’s excellent article “Designing Law Again…This Time for Humans” in which he says:
“Design thinking recognizes the first-level importance of the emotional content of a successful design. When we think of traditional value propositions, we often bring to mind some notion of utility. This product or service will accomplish a certain thing. Lawyers think like that. We will provide you with advice, and it will be correct.
But the most successful designs go beyond mere utility. If you buy a Tesla, the automaker promises that you will receive the safest transportation in the world, that you will be transported in a sumptuous surround, that you will feel pampered, affluent, intelligent. In other words, the design of a Tesla is loaded with emotional content. So too with the iPhone…
Clients have been telling us for years that they want more than utility in their law firms. One of the most common complaints about lawyers is that they take no time to understand their clients’ businesses. That complaint certainly relates to the utility of advice – abstract advice is less valuable than that given in a specific business context. But the complaint also has just as much emotional content as a “you don’t pay enough attention to me” statement in any other human relationship.”
The healthcare world has been exploring “patient-centred care” for many years. Dr. Brian Goldman, host of “White Coat, Black Art” on CBC Radio, asserts that the big missing piece in healthcare is….empathy. I believe that justice has the same glaring gap.
So, why is it important to put the public first? It is the ONLY way to make meaningful change.
In the next post I will take a look at the complex question of HOW we put the public first. Your comments are welcome!
Coordinator, BC Family Justice Innovation Lab