Reform of the Civil Justice System 25 Years Past: (In)adequate Responses from Law Schools and Professional Associations? (And How Best to Change the Behaviour of Lawyers)

By the mid-1980s, the civil justice system in many common law jurisdictions was reportedly 'in crisis', crippled by excessive delay, cost and complexity in proceedings and out of reach of ordinary people. During the next two decades, law reform commissions and other agencies were charged with identifying problems with the civil justice system and with making recommendations for its improvement. Many agencies identified legal education as a factor contributing to the perceived crisis and made recommendations for change. The rules of professional conduct governing lawyers were also considered to be inadequate to the task of reorienting lawyers towards non-adversarial collaborative ways of professional practice. This paper canvasses reforms made in respect of the civil justice systems in Australia, England (and Wales) and to a lesser extent, the United States. The majority of reforms have been procedural in nature, brought about largely through legislative intervention and judicial activism (in the form of rules of court and practice directions). The paper examines the ways in which legal education has responded to the challenges presented by civil justice reform and also identifies amendments made to relevant professional practice standards. It is argued that, despite the recommendations for reform, changes to legal education have been piecemeal and fragmented and only minor changes have been made to professional standards of conduct. The paper goes on to discuss the various ways in which to regulate the behaviour of lawyers and the reasons why reform brought about by legislation, rules of court and practice directions is not sufficient to effectively change the conduct of members of the legal profession. It highlights the importance of education and codes of conduct for lawyers. In the final analysis, neither more rules, nor changes in legal education, provide a complete solution. The answer lies in a mixed approach-some modification to procedural rules of adversarial engagement, activism on the part of judges, some rules adjustment, and better education. It is argued here that more is required of both law schools and professional associations to support two decades of procedural reform.