Some forms of legal research routinely take place in the legal profession. For example, research into the facts of a dispute, prior rulings, relevant regulations, and precedent often informs legal strategy and generally precedes the presentation of a case or position. Legal research databases that facilitate everyday access to primary and secondary sources of law are staples of today’s law libraries. Legal departments the world over invest heavily in knowledge management systems and legal software expressly to aid in research and curating information. In these ways, and in these spaces, the legal profession embraces research as integral to accessing the law, and the public seems to grasp this necessity. The importance of empirical legal research—meaning, investigation into the operation, impacts, and limitations of the law and legal systems, and their intersections with other systems and facets of life—is not as clearly evinced. That the legal field should engage in sustained data collection, fact-finding, and analysis to an extent that parallels that of the physical sciences has long been called for, but remains far from the reality. To address the most significant challenges facing our justice systems, and to advance meaningful, equal access to justice for all, empirical legal research is key.
Consider what we have learned from legal needs research. Legal needs surveys date back to the late 1930s, when the first survey was carried out in Connecticut. Since then, scores of these surveys have been carried out at the provincial/territorial/state level, nationally and on a global scale. Legal needs surveys provide evidence on the prevalence of (mostly civil) legal problems in societies and what the public does about them. They provide empirical evidence on the types of legal problems people experience, the co-occurrence of these problems, the duration of legal problem experiences, the legal consciousness of populations, people’s perceptions of the justice system and legal processes (and how their socio-demographic characteristics informs it), and, increasingly, the costs and consequences of legal problem experiences. In gathering insights on people’s legal problem experiences, and their access to, engagement with, and understanding of dispute resolution mechanisms, we establish an evidence base from which to assess how well our legal systems are meeting the needs of those they are designed to serve. Findings from these surveys are also foundational to understanding the extent of unmet (civil) legal needs.
To date there have been five national legal needs surveys in Canada. The first survey, almost twenty years ago, includes responses from more than 4,500 low and moderate-income Canadians related to fifteen legal problem categories and seventy-six specific problems. The 2006 survey followed a similar format. More than 6,600 adults provided responses related to fifteen legal problem categories; the number of specific legal problems increased to 80. A category for neighbourhood problems was added to the 2008 legal needs survey, increasing the legal problem categories to sixteen and the number of specific legal problems to eighty-three. In total there were 7,002 respondents. The Canadian Forum on Civil Justice’s (CFCJ) national Everyday Legal Problems Survey in 2016 provided the first new civil legal needs insights in almost a decade. More than 3,000 respondents provided answers related to seventeen legal problem categories and eighty-four specific legal problems. This was also the first study to ask about health, personal and social impacts of legal problems and assess knock-on economic costs. Most recently—in 2021—Statistics Canada engaged the largest number of respondents of Canada’s national legal needs surveys, with a sample size of 21,720 adults across the ten provinces.
Each survey builds on the previous version, with new legal problem categories, more modern data collection methods (landline only, landline and cell phone and, recently, online and telephone), and problem types and questions that reflect shifting understandings of complex legal problems and access to justice. Nonetheless, this collection of surveys—spanning almost twenty years and following a similar legal needs research survey design—represents one of Canada’s most robust exercises in longitudinal socio-legal research. These surveys provide evidence of changes in Canada’s legal problems landscape over time and identify areas where justice gaps persist. “You can’t improve what you don’t measure,” and if we are to achieve equal access to justice for all, it is necessary to have an evidence base from which to understand the extent of our justice problems and research that provides detailed insights on our progress.
Actionable data on legal problem experiences puts us on a path to implementing solutions aimed at addressing gaps and obstacles, and expanding access. The impacts of these legal interventions also need to be evaluated. Here, too, empirical legal research proves to be critical. An evidence-based understanding of the relationship between legal service interventions, outcomes, and impacts over time is necessary to measure progress. Importantly, it also enables the public to make more informed decisions about how to deal with a legal matter. For governments, policy makers, and funders this research can provide reliable guidance on justice pathways that show promise in particular scenarios, or that might be beneficial over time. Legal service providers could also benefit from data that allows for more targeted allocation of budgets and resources. Longitudinal studies are especially useful in measuring the effectiveness of legal interventions over time.
Decisions on justice interventions and investments benefit from empirical legal research. Legal needs surveys and research into the effectiveness of legal interventions at the provincial/territorial/state level and nationally provide critical information on justice gaps and evidence to support investment, allocation, and scaling of effective programs and initiatives. Locally, empirical research on unmet legal needs informs community-based justice models and shapes justice outreach efforts. At a global level, research advanced by organizations like the World Justice Project, the Organisation for Economic Co-operation and Development (OECD), the Task Force on Justice, the Hague Institute for Innovation of Law (HiiL), and others has proved critical to understanding the gravity of the global access to justice crisis, and provided important opportunities to share best practices and lessons learned on measuring and advancing people-centered justice.
There are many questions to which the legal profession does not yet have the answers. Questions about the performance of our courts and tribunals, the effectiveness of newer dispute resolution methods, the outcomes of lawyer-assisted problem resolution relative to other pathways, and the time and cost implications of these methods, are yet to be adequately addressed by the legal field. They can only reasonably be answered through rigorous, sustained empirical legal research.
The original version of this article was published on www.slaw.ca on 17 August 2023.
The Canadian Forum on Civil Justice (CFCJ) is a national, non-profit research organization housed at Osgoode Hall Law School. The CFCJ strives to make the civil justice system more accessible, effective, and sustainable by leading and participating in projects that place the citizen at the centre of our civil justice system.