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More lawyers, more litigation?

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Avner Levin explores the correlation and potential relationship between the composition of the legal profession and trends in litigation, in Ontario, Canada.

Image courtesy of interviewee. March 14, 2024

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This video video describes a study conducted at Toronto Metropolitan University regarding the establishment of a new law school and the political opposition it faced. Those opposing the initiative expressed concerns that adding more lawyers would lead to negative societal consequences, such as increased litigation and disputes, echoing similar fears from past decades in the United States. However, the researchers noted a shift in perspective, with some acknowledging the potential benefits of more lawyers in improving access to justice for underrepresented individuals.

To analyze these assumptions, the study utilized three data sets: Statistics Canada’s national litigation data, Ontario's specific litigation database, and the Law Society of Ontario's information on lawyers. The findings revealed that while the number of lawyers in Ontario increased significantly, the overall number of litigation cases remained relatively stable, leading to a decrease in the lawyer-to-population ratio. This video video suggests that more lawyers do not necessarily result in more litigation, and may even correlate with less.

The researchers speculated on possible reasons for this unexpected trend, including the rise of alternative dispute resolution methods, economic downturns affecting litigation rates, and societal changes regarding trust in legal institutions. Ultimately, the study concluded that while the addition of lawyers did not exacerbate litigation concerns, it also did not improve access to justice as intended. The researchers emphasized the importance of understanding the outcomes and integration of new lawyers in the profession to genuinely enhance access to legal services.

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In the context of the, of this study was,

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our proposal at, Toronto Metropolitan University

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for a new law school several years ago,

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and some of the political opposition

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that we encountered at the time, you know, in the,

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both the broader public and,

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and politically where there were these concerns that,

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you know, the creation of a new law school

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and the addition of new kind of lawyers to, Ontario and,

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and I guess that they could practice anywhere in Canada,

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really would lead to some kind of like, you know,

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negative social consequences

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and the forms of, you know, more disputes that are going

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to be more litigated.

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Um, and these are concerns that we heard

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that really mirror earlier concerns from the United States,

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from roughly the period of the 19, nineties that,

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there were a bunch of, reforms

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to the legal system in the United States,

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and there was a lot of concern back then

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that this would make litigation easier.

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This would encourage people to enter the legal profession.

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Um, and these are all negative, things.

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Um, the interesting, other point that I'd like

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to make is that in the context of our, our research,

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we also realized

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that thought was perhaps evolving on this issue.

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And we had, seen more

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and more people actually asking maybe more lawyers would be

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a positive thing for society if they could help address some

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issues that were top of concern for us

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as we were developing our proposals such as access to,

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justice so that people that currently can't afford

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or don't have a lawyer could be able

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to somehow benefit from, perhaps having more lawyers.

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Um, so what we wanted to do is we really wanted to,

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to look at all of these kind of like, assumptions

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and, and concerns

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and see whether they had any kind

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of empirical basis in the data.

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And that's how we set about on our project.

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There has been some American,

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literature primarily from the nineties

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that had talked about, the concerns that litigation,

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would increase if more lawyers were added.

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These were, again, these concerns

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that were not backed up by, by, by data.

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Um, and by, you know, any kind of hard information,

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there were similar concerns.

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One jurisdiction that we, that we looked to,

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that had kind of gone through this process

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of opening up the profession

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and allowing for more schools to open up and,

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and really increased the number of was, Israel.

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And in Israel, there were a lot of,

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concerns at the time,

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and there could still be concerns about the, what

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that would do do to litigation,

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that having more lawyers in society would, increase,

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the, the kind of, potential disputes

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that could increase the litigation.

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But then as we were reviewing the literature, we saw

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that over there, there probably were some kind

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of like protectionist, concerns from people

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that were already in the profession.

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Plus there was also some sense of, elitism,

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you know, over the profession as who was kind of like,

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you know, or who should be

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or shouldn't be a lawyer that, if you,

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educate more lawyers, then that would bring like a kind of,

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negative, ethical level,

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that more lawyers would result in kind of lower ethics.

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Um, there, you know, all kind of, concerns

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that when we looked at,

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literature over there were ultimately not born out by,

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by the data, in terms of,

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let's say complaints about members of the bar.

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And they seemed to mirror to us concerns

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that we were hearing in Ontario

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as well from big established, you know, law firms,

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well established players that didn't really want to see,

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any kind of change to a system

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that they felt was serving at least them, very well.

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And the mirrored concerns in Ontario from a few years

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before that, when Ontario embarked on the, creation

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of, what we call the paralegal profession in

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Ontario, which is they're not lawyers,

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but they are allowed to conduct some legal issues

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to represent in court in certain cases, usually lower,

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level disputes, small claims courts or,

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or smaller criminal or traffic issues.

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And there were similar concerns about what

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that would do in terms of like, you know,

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that these would be people of like, you know,

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lower questionable ethics and more problematic.

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And again, even in Ontario, it hasn't been borne out.

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So we kind of see these concerns, surfacing,

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but then when people take a a closer

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and harder look at them, they don't seem

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to be like supported by the facts.

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We actually used, three, different data sets,

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in the study.

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Um, not, not, not by choice, but

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because that were, those were kind

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of like the constraints when we wanted to look at amount

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of litigation, if you can use that word.

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Um, then we, we looked at, two datasets.

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One was the Statistics Canada dataset,

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and that's, national data

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that Statistics Canada collects,

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across the various provinces in Canada,

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including the province of Ontario.

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Um, they have certain types of litigation

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that they are interested in

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that have some bearing on the economy as they see it.

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And so they exclude a lot of, litigation

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that perhaps might be interested,

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interesting from a professional perspective, such as,

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family law disputes, you know, divorces

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and other kind of, proceedings.

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And, and they, exclude, criminal cases.

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So they really focus, try to focus on cases

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that they think have some kind

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of economic significance in terms of their mandate.

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And they started collecting information,

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I would say in the mid, two thousands,

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2005 or or so.

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So it gave us about maybe 20 years of, data

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or a little bit less, but we also wanted to kind of,

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look further, back in time if, if possible.

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And so we also, tried to incorporate, data

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that was collected in the province of Ontario.

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So this is not Pan-Canadian,

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but in the province of Ontario by the ministry

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of the Attorney General, that's the ministry

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that's responsible

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for like the administration of the courts.

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Um, and they had, collect, created a database of,

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litigation in Ontario that goes back to the nineties,

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so another 20 years or so before Statistics Canada.

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Um, the problem was that when

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Statistics Canada set up about creating their database,

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they weren't exact, again, concerned with the same questions

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that the Ontario was concerned.

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And so the databases are not identical.

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That leads to kind of statistical difficulties in terms

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of like almost being apples to oranges

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because, they're focused on different issues.

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They form some different type of litigations.

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They frame things differently.

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So it requires some hard work, you know, to kind

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of like see what we can use without kind of a degree

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of confidence that we were,

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really extrapolating appropriately all the way back

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to the nineties, if that's what we wanted to do.

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And then the third data set was, you know, if we're trying

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to make an argument or to see what happens with respect

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to both lawyers and litigation, we need

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to have some data about lawyers.

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And so the data on the number of lawyers

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and what lawyers are doing, we collected that from, the,

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law Society of Ontario.

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That's the bar, that's the professional regulator.

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And so they have numbers on, lawyers

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and they also have, increasingly engaged in like,

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some kind of analysis in the form of annual reports in terms

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of the composition of the bar, in terms of,

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personal characteristics like, diversity of the bar,

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gender of the bar, age of the bar.

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And then of course what also interests them is like the

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areas of practice.

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So what do people focus on?

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Are they focused on family law, criminal law?

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And so we try to use that information to kind

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of do a correlation between, let's say the number of cases

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that were reported in a certain area by the Texas, Canada,

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and the number of lawyers that were working in that area

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as reported by the Law Society of Ontario.

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Um, and again, it's kind of like challenging.

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So we have these three data sets that we needed to kind

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of see where we can find a common ground between them

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so we could draw our, comparisons in terms of,

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of key results, I think, we were, first of all,

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because there is, you know,

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natural growth in the province of Ontario,

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the population increases over time.

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So we were really from the outset trying to focus on ratios.

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So what has happened to, let's say,

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how many lawyers are there per, you know,

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a hundred thousand people in Ontario,

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and has that ratio gone up or down the stay the same?

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And similarly, how many, you know, cases of a certain type,

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like let's say, civil litigation lawsuits

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or disputes over contracts, for instance,

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are there a pair 100,000 people or whatever the number is,

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and has that ratio increased or decreased

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or stayed the same, over time?

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And so, and then we wanted to also engage in a comparison

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of what's been happening with respect to lawyers

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and what's been happening with respect to cases to kind

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of see if as the title of the study, more lawyers do lead

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to more litigation, not to the extent that that's possible.

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So on the front of the lawyers,

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there has clearly been an increase in the ratio of,

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lawyers in the, in the profession

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as related to the population.

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So over time, we have had more lawyers,

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in Ontario, since let's say we started looking,

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which was again, was like a roughly the, the, the nineties.

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And in some fields, you know, the ratio, so that

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that has actually increased by 50% or more.

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So it's not an insignificant increase, in the number of,

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of lawyers,

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over time across the, across the province.

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Um, what these lawyers have been doing,

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they've been doing in a, in a, a number of, kind

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of inter, areas that they've been,

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that they've been practicing in.

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But even in those areas that were covered

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by Statistics Canada and their dataset,

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and certainly in the areas that were covered by the,

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ministry of the Attorney General of Ontario,

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we have also been seeing these increases in the number

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of lawyers operating in those areas.

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So that was one finding the next, we wanted to look at

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what has been happening actually in, in terms of the number

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of cases, and here perhaps the kind

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of counter perhaps intuitive,

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or at least in some version of counter,

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or not as expected finding, was that the number

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of cases actually remain roughly the same

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across all these years.

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It has increased a little bit, but not a lot.

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It sort of goes up and down as well.

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So what that means to the ratio is

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that the ratio has actually been going down

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because if the number absolute number stays the same

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and the population increases,

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then we actually have a downward trend in terms

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of litigation in Ontario.

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So we have, in comparison, like these two trends,

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we have this number of lawyers going up, we have a number of

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of cases going down,

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and so we don't actually see

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that more lawyers result in, in more litigation.

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We perhaps paradoxically see

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that more lawyers result in perhaps less litigation.

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Or what that leads us to think about is that perhaps,

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there is no direct,

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or it's a more complicated relationship than just like

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increasing the number and reducing the number

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of the other, or vice versa.

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And that there are other factors at play that would kind

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of influence whether at the end

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of the day there are more cases heard, in court,

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or not.

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But I thought, and we thought my, my colleague,

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professor Asher Kobi

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and myself, we both thought that, this is significant in

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of itself to kind of counter that narrative that you have

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to be worried about, you know, lawyers

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or adding lawyers to the system

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because that would, result in more disputes

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and more litigation and more

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Social costs.

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We tried to dig into, the reasons

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for perhaps seeing this kind of downward trend, to,

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litigation in contrast with the increase to the,

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into the number of lawyers.

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And we had several kind of thoughts, that

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that came to our mind.

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One of the initial avenues that we wanted

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to pursue was whether lawyers were more active in

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what we call alternative dispute resolutions.

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So you don't actually go to court,

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but you try to resolve it,

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but the data doesn't absolutely support that.

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Um, there are not as many lawyers actually engaged in,

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alternative dispute resolution as you could have,

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I think is one of those areas in which lawyers have

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not been practicing more.

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So it doesn't seem to be that

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that would be the primary reason

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for why the litigation has gone down unless there, and,

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and this is something that is difficult for us to capture,

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in the, using our methodology,

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unless there are like these settlements that are happening,

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due to kind of like, financial pressures

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between parties that don't go through a formal system,

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but maybe perhaps the lawyers on each side are like more

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pressuring to, you know,

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there, there are parties to settle.

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There are certainly anecdotal evidence of that,

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and are, you know, discussing it with law, with lawyers

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and law firms, but we don't have like the, you know,

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data to, to, to support that.

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That's one possible. Um, what the other, perhaps reasons

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that we thought about when we looked over a period

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of time is that, there,

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there were several economic downturns during that period.

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There were crises, like there were a couple

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of economic crises in, into two thousands.

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And, and we definitely saw in the data

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that there was like a downward dip initially,

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or following, I would say like a crisis

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that would know just lead

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to less economic activity and less litigation.

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Um, as a result, if you think about big economic crisis

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of 2008, you know, those, those could have like,

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an impact in that, as well.

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Um, there are also perhaps there,

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there are also perhaps some reasons

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that were more like cultural

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as like the society in Ontario kind of like evolves

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and, perhaps people have less of a trust, in,

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social institutions that we might thought

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that people are kind of like,

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either self representing themselves

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or finding other solutions to, litigation.

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Um, you know, things like perhaps people want some kind

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of a satisfaction that they could get, let's say,

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by posting some complaint online on social media in which

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otherwise would've been like a more formal, complaint.

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But, you know, so there is any number of, of, of,

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of reasons, that,

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but none of them we would say is, is definitive.

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And that kind of left us, with like, you know,

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is this a glass half empty

329
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or a glass, half full kind of situation?

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Because on the one hand we were sort of pleased

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that we were able to refute this idea that, the popula,

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let's say concern about adding more lawyers to the system.

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But at the same time, we were concerned that people

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that were, that thought

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that having more lawyers would improve access

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to justice were not supported either.

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So if your goal is to improve access

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to the justice system in Ontario, the data doesn't support,

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or don't support that.

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Um, and so, you know, whether it's

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through alternative measures, whether it's

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through those paralegal profession,

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whatever avenue we were trying to explore

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or whatever avenue that we wanted to suggest

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that having more lawyers would actually help people in

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enter, that didn't seem to be the case either.

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So we are kind of like left with that glass half empty,

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kind of view at, at the end of all of this,

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study is that we need to be, I guess one

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of our conclusions

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or implications was that we really needed to see

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where these lawyers would end up if we were like

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to open this, this law school if we were try

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to restructure the legal profession in, in Ontario.

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And what we needed to do more than just like educating more

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lawyers is like where they would end up in the profession,

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what courses, you know, what kind of like ways they have in,

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in terms of like starting working in the field,

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what were some of the incentives

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and the barriers in the profession itself,

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and how you can kind of do that in the way

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that would best allow people that, again,

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are not represented or self-represented,

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or just don't feel that the legal system provides them

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00:16:19.285 --> 00:16:21.405
with any answers, that they would be able to kind

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of look upon this as like some kind

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of positive development at the end of the day.

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And our, this paper did not give us any of like, the answers

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to those kind of like, deeper questions,

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but it certainly kind made us, think about them front

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and center.

Concerns Over New Law School Impact in Ontario

00:00:00 - In the context of the, of this study was, our proposal at, Toronto Metropolitan University for a new law school several years ago, and some of the political opposition that we encountered at the time, you know, in the, both the broader public and, and politically where there were these concerns that, you know, the creation of a new law school and the addition of new kind of lawyers to, Ontario and, and I guess that they could practice anywhere in Canada, really would lead to some kind of like, you know,
00:00:33 - and the forms of, you know, more disputes that are going to be more litigated. and these are concerns that we heard that really mirror earlier concerns from the United States, from roughly the period of the 19, nineties that, there were a bunch of, reforms to the legal system in the United States, and there was a lot of concern back then that this would make litigation easier. This would encourage people to enter the legal profession. and these are all negative, things.
00:01:05 - to make is that in the context of our, our research, we also realized that thought was perhaps evolving on this issue. And we had, seen more and more people actually asking maybe more lawyers would be a positive thing for society if they could help address some issues that were top of concern for us as we were developing our proposals such as access to, justice so that people that currently can't afford or don't have a lawyer could be able
00:01:37 - so what we wanted to do is we really wanted to, to look at all of these kind of like, assumptions and, and concerns and see whether they had any kind of empirical basis in the data. And that's how we set about on our project. There has been some American, literature primarily from the nineties that had talked about, the concerns that litigation, would increase if more lawyers were added. These were, again, these concerns
00:02:09 - and by, you know, any kind of hard information, there were similar concerns. One jurisdiction that we, that we looked to, that had kind of gone through this process of opening up the profession and allowing for more schools to open up and, and really increased the number of was, Israel. And in Israel, there were a lot of, concerns at the time, and there could still be concerns about the, what
00:02:38 - that having more lawyers in society would, increase, the, the kind of, potential disputes that could increase the litigation. But then as we were reviewing the literature, we saw that over there, there probably were some kind of like protectionist, concerns from people that were already in the profession. Plus there was also some sense of, elitism, you know, over the profession as who was kind of like, you know, or who should be or shouldn't be a lawyer that, if you,

Concerns Over Lawyer Ethics and Litigation Trends

00:03:11 - negative, ethical level, that more lawyers would result in kind of lower ethics. there, you know, all kind of, concerns that when we looked at, literature over there were ultimately not born out by, by the data, in terms of, let's say complaints about members of the bar. And they seemed to mirror to us concerns that we were hearing in Ontario as well from big established, you know, law firms, well established players that didn't really want to see,
00:03:42 - that they felt was serving at least them, very well. And the mirrored concerns in Ontario from a few years before that, when Ontario embarked on the, creation of, what we call the paralegal profession in Ontario, which is they're not lawyers, but they are allowed to conduct some legal issues to represent in court in certain cases, usually lower, level disputes, small claims courts or, or smaller criminal or traffic issues.
00:04:15 - that would do in terms of like, you know, that these would be people of like, you know, lower questionable ethics and more problematic. And again, even in Ontario, it hasn't been borne out. So we kind of see these concerns, surfacing, but then when people take a a closer and harder look at them, they don't seem to be like supported by the facts. We actually used, three, different data sets, in the study. not, not, not by choice, but
00:04:45 - of like the constraints when we wanted to look at amount of litigation, if you can use that word. then we, we looked at, two datasets. One was the Statistics Canada dataset, and that's, national data that Statistics Canada collects, across the various provinces in Canada, including the province of Ontario. they have certain types of litigation that they are interested in that have some bearing on the economy as they see it. And so they exclude a lot of, litigation
00:05:19 - interesting from a professional perspective, such as, family law disputes, you know, divorces and other kind of, proceedings. And, and they, exclude, criminal cases. So they really focus, try to focus on cases that they think have some kind of economic significance in terms of their mandate. And they started collecting information, I would say in the mid, two thousands, 2005 or or so. So it gave us about maybe 20 years of, data
00:05:53 - look further, back in time if, if possible. And so we also, tried to incorporate, data that was collected in the province of Ontario. So this is not Pan-Canadian, but in the province of Ontario by the ministry of the Attorney General, that's the ministry that's responsible for like the administration of the courts. and they had, collect, created a database of, litigation in Ontario that goes back to the nineties,

Challenges in Legal Data Comparison

00:06:24 - the problem was that when Statistics Canada set up about creating their database, they weren't exact, again, concerned with the same questions that the Ontario was concerned. And so the databases are not identical. That leads to kind of statistical difficulties in terms of like almost being apples to oranges because, they're focused on different issues. They form some different type of litigations. They frame things differently. So it requires some hard work, you know, to kind
00:06:55 - of confidence that we were, really extrapolating appropriately all the way back to the nineties, if that's what we wanted to do. And then the third data set was, you know, if we're trying to make an argument or to see what happens with respect to both lawyers and litigation, we need to have some data about lawyers. And so the data on the number of lawyers and what lawyers are doing, we collected that from, the, law Society of Ontario. That's the bar, that's the professional regulator.
00:07:27 - and they also have, increasingly engaged in like, some kind of analysis in the form of annual reports in terms of the composition of the bar, in terms of, personal characteristics like, diversity of the bar, gender of the bar, age of the bar. And then of course what also interests them is like the areas of practice. So what do people focus on? Are they focused on family law, criminal law? And so we try to use that information to kind
00:07:59 - that were reported in a certain area by the Texas, Canada, and the number of lawyers that were working in that area as reported by the Law Society of Ontario. and again, it's kind of like challenging. So we have these three data sets that we needed to kind of see where we can find a common ground between them so we could draw our, comparisons in terms of, of key results, I think, we were, first of all, because there is, you know, natural growth in the province of Ontario,
00:08:28 - So we were really from the outset trying to focus on ratios. So what has happened to, let's say, how many lawyers are there per, you know, a hundred thousand people in Ontario, and has that ratio gone up or down the stay the same? And similarly, how many, you know, cases of a certain type, like let's say, civil litigation lawsuits or disputes over contracts, for instance, are there a pair 100,000 people or whatever the number is,
00:09:00 - or stayed the same, over time? And so, and then we wanted to also engage in a comparison of what's been happening with respect to lawyers and what's been happening with respect to cases to kind of see if as the title of the study, more lawyers do lead to more litigation, not to the extent that that's possible. So on the front of the lawyers, there has clearly been an increase in the ratio of, lawyers in the, in the profession as related to the population.

Trends in Ontario's Legal Profession and Litigation

00:09:32 - in Ontario, since let's say we started looking, which was again, was like a roughly the, the, the nineties. And in some fields, you know, the ratio, so that that has actually increased by 50% or more. So it's not an insignificant increase, in the number of, of lawyers, over time across the, across the province. what these lawyers have been doing, they've been doing in a, in a, a number of, kind
00:10:00 - that they've been practicing in. But even in those areas that were covered by Statistics Canada and their dataset, and certainly in the areas that were covered by the, ministry of the Attorney General of Ontario, we have also been seeing these increases in the number of lawyers operating in those areas. So that was one finding the next, we wanted to look at what has been happening actually in, in terms of the number of cases, and here perhaps the kind of counter perhaps intuitive, or at least in some version of counter,
00:10:32 - of cases actually remain roughly the same across all these years. It has increased a little bit, but not a lot. It sort of goes up and down as well. So what that means to the ratio is that the ratio has actually been going down because if the number absolute number stays the same and the population increases, then we actually have a downward trend in terms of litigation in Ontario. So we have, in comparison, like these two trends, we have this number of lawyers going up, we have a number of
00:11:02 - and so we don't actually see that more lawyers result in, in more litigation. We perhaps paradoxically see that more lawyers result in perhaps less litigation. Or what that leads us to think about is that perhaps, there is no direct, or it's a more complicated relationship than just like increasing the number and reducing the number of the other, or vice versa. And that there are other factors at play that would kind of influence whether at the end of the day there are more cases heard, in court,
00:11:32 - But I thought, and we thought my, my colleague, professor Asher Kobi and myself, we both thought that, this is significant in of itself to kind of counter that narrative that you have to be worried about, you know, lawyers or adding lawyers to the system because that would, result in more disputes and more litigation and more Social costs. We tried to dig into, the reasons for perhaps seeing this kind of downward trend, to, litigation in contrast with the increase to the,
00:12:05 - And we had several kind of thoughts, that that came to our mind. One of the initial avenues that we wanted to pursue was whether lawyers were more active in what we call alternative dispute resolutions. So you don't actually go to court, but you try to resolve it, but the data doesn't absolutely support that. there are not as many lawyers actually engaged in, alternative dispute resolution as you could have, I think is one of those areas in which lawyers have not been practicing more.

Factors Influencing Litigation Decline in Ontario

00:12:36 - that would be the primary reason for why the litigation has gone down unless there, and, and this is something that is difficult for us to capture, in the, using our methodology, unless there are like these settlements that are happening, due to kind of like, financial pressures between parties that don't go through a formal system, but maybe perhaps the lawyers on each side are like more pressuring to, you know, there, there are parties to settle. There are certainly anecdotal evidence of that,
00:13:08 - and law firms, but we don't have like the, you know, data to, to, to support that. That's one possible. what the other, perhaps reasons that we thought about when we looked over a period of time is that, there, there were several economic downturns during that period. There were crises, like there were a couple of economic crises in, into two thousands. And, and we definitely saw in the data that there was like a downward dip initially, or following, I would say like a crisis
00:13:38 - to less economic activity and less litigation. as a result, if you think about big economic crisis of 2008, you know, those, those could have like, an impact in that, as well. there are also perhaps there, there are also perhaps some reasons that were more like cultural as like the society in Ontario kind of like evolves and, perhaps people have less of a trust, in, social institutions that we might thought
00:14:09 - either self representing themselves or finding other solutions to, litigation. you know, things like perhaps people want some kind of a satisfaction that they could get, let's say, by posting some complaint online on social media in which otherwise would've been like a more formal, complaint. But, you know, so there is any number of, of, of, of reasons, that, but none of them we would say is, is definitive. And that kind of left us, with like, you know,
00:14:41 - or a glass, half full kind of situation? Because on the one hand we were sort of pleased that we were able to refute this idea that, the popula, let's say concern about adding more lawyers to the system. But at the same time, we were concerned that people that were, that thought that having more lawyers would improve access to justice were not supported either. So if your goal is to improve access to the justice system in Ontario, the data doesn't support, or don't support that. and so, you know, whether it's
00:15:14 - through those paralegal profession, whatever avenue we were trying to explore or whatever avenue that we wanted to suggest that having more lawyers would actually help people in enter, that didn't seem to be the case either. So we are kind of like left with that glass half empty, kind of view at, at the end of all of this, study is that we need to be, I guess one of our conclusions or implications was that we really needed to see

Restructuring Ontario's Legal Profession and Access

00:15:47 - to open this, this law school if we were try to restructure the legal profession in, in Ontario. And what we needed to do more than just like educating more lawyers is like where they would end up in the profession, what courses, you know, what kind of like ways they have in, in terms of like starting working in the field, what were some of the incentives and the barriers in the profession itself, and how you can kind of do that in the way that would best allow people that, again, are not represented or self-represented,
00:16:34 - with any answers, that they would be able to kind of look upon this as like some kind of positive development at the end of the day. And our, this paper did not give us any of like, the answers to those kind of like, deeper questions, but it certainly kind made us, think about them front and center.

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