About the Study Paper on Financing Litigation

The study paper examines the traditional and alternative methods litigants use to pay for litigation. The cost of litigation is a significant barrier to accessing the justice system. While some disputes can be resolved outside the courtroom, litigation is often the only means to achieve an equitable result. However, a litigant’s ability to pay for the legal fees and expenses that come with litigation may become a concern before, or during, the process. Taking a legal dispute to trial is expensive. Many litigants lack the financial resources to take on the risk of an unsuccessful case.

The study paper reviews six financing models that have emerged both in Canada and internationally:

• Unbundled legal services;
• Third-party litigation funding;
• Alternative fee arrangements;
• Crowdfunding;
• Legal expense insurance; and
• Publicly funded litigation funds.

The study paper also identifies 18 opportunities and ideas to consider for structural, systemic or legal change to enhance the use of each financing option in British Columbia. It concludes with a chapter that briefly discusses five alternative ideas that could mitigate the rising cost of legal services and improve access to justice generally. The paper represents a brief introduction to each alternative financing option. The substantive content, research, case law, and other materials are not intended to be interpreted as an exhaustive representation of the information and resources available for study in this area. Research, law, policy and other initiatives continue to develop as more and more opportunities arise to further explore this area.

Noteworthy Updates and Some Recent Developments

Following its release, the study paper continued to generate interest from both the public and legal profession in British Columbia, across Canada, and in the United States. Since its release on October 4, 2017, website statistics report that for the study paper has been downloaded a total of 250 times from the BCLI website and 42 times from the Social Science Research Network (SSRN) website. It was also viewed an additional 295 times on SSRN’s website.

The BCLI remains interested in keeping up-to-date on key research initiatives, reforms and other projects that build-upon the topics covered in the study paper. Some recent updates include:

• Crowdfunding: The Alberta Law Reform Institute (ALRI) project on Informal Public Appeals to examine the use of crowdfunding to support creative ventures and, in some cases, respond to financial needs in case of emergency. The project will review the legal implications of appeals that raise excess funds, and situations where money raised cannot be applied for its intended use. The project page indicates both research and consultation data will be used to develop recommendations for legislation to “clarify the rights and responsibilities of organizers, donors, and beneficiaries.” As of December 4, 2018, the project has been placed on hold for further review by the Uniform Law Conference of Canada.
• Crowdfunding: The Uniform Law Conference of Canada (ULCC) has formed a 10-member working group to revise the 2011 Uniform Informal Public Appeals Act (UIPAA), promulgated in 2011, to address current issues arising from internet-based crowdfunding. BCLI’s Senior Staff Lawyer, Greg Blue, Q.C., who worked on the project to develop the 2011 UIPAA, is a member of the current working group. Mr. Blue has published a blog post on the project and consultation. The online consultation will run until 15 January 2020. A copy of the consultation paper and instructions on how to respond can be found here.
• Class Proceedings: In Fall 2018, the British Columbia Class Proceedings Act was amended to address the use of undistributed funds from class proceedings. Among the changes made is a requirement that a minimum of 50 percent of undistributed funds be allocated to the Law Foundation of British Columbia to address access-to-justice needs. For a comprehensive summary of the changes, see the May 2019 Issue of The Advocate, “The Attorney General’s Page: Class Actions” by the Honourable David Eby, Q.C., Vol 77 Part 3 (May 2019) at 415-420.
• Alternative Fee Arrangements: In Spring 2019, the Quebec Accessing Law and Justice Project (ADAJ) launched a new three-year project, Hub23, aimed at developing innovative practice and alternative billing models for legal services in the province. The goal of Hub23 is to create a modern business model for legal services to meet everyday client needs and ensure sustainable and fair compensation for lawyers.
• Unbundled Legal Services: In April 2019, the Law Society of B.C. established a Licensed Paralegal Task Force to “identify opportunities for the delivery of legal services by licensed paralegals that would benefit the public in areas where there is a substantial unmet legal need.” In consultation with members of the legal profession, the task force aims to determine the education, skills, qualifications, and credentials required for paralegals to deliver legal services.

Statistics on project publications and website engagement since release date

One of the goals of the project is to make its research widely known to interested readers. Here are some statistics, tracking how that information is made available to and accessed by the public, since its publication:

• Number of publications issued: 1, Study Paper on Financing Litigation
• Number of supporting documents issued: 22, including a media release announcing the publication of the Study Paper on Financing Litigation, a backgrounder on the paper, highlights and resources lists for each of the six financing models explored in the study paper and the final chapter on alternative methods of improving access to justice.
• Number of presentations and articles mentioning the study paper: 16
• Number of blog posts on the Financing Litigation Legal Research Project (including this one): 16
• Number of social media posts (Facebook and Twitter): 19
• Number of page views for the project page: 1,181 (between October 2, 2017, and September 4, 2019)
• Number of page views for the Financing Litigation Blog Posts (total): 2,134

This project was made possible thanks to the generous funding from the Law Foundation of British Columbia.

The post BCLI’s Study Paper on Financing Litigation: Recent Developments first appeared on British Columbia Law Institute.

Background of the Project

The Hub23 ADAJ project builds upon the Barreau du Quebec’s 2016 report, which outlined the impact of traditional hourly billing on the accessibility of legal services, and a need for a new service delivery model. Results from a 2018 ADAJ survey showed little progress in this regard, with almost 75% of respondents saying existing hourly rates remained too high, pushing more and more people towards self-representation.

The Hub23 project seeks to develop a modern business model for legal services to meet every day client needs and ensure sustainable and fair compensation for lawyers. According to Noreau, some models to consider “include law firm co-operatives, novel fee-for-act pricing schemes and more use of articling students in case work.”

The three-year study is funded by Jolicoeur Lacasse and Mitacs.

The ADAJ and BCLI’s 2017 Study Paper on Financing Litigation

The Hub23 project directly relates to the BCLI’s 2017 Study Paper on Financing Litigation, which explored the traditional and alternative methods litigants use to pay for litigation. Like the focus of the Hub23 project, BCLI’s study highlighted that the cost of litigation remains a significant barrier to accessing the justice system, with many litigants lacking the financial resources to secure advice or ongoing representation from a lawyer.

The study paper reviewed six financing models that emerged both in Canada and internationally:

• Unbundled legal services;
• Third-party litigation funding;
• Alternative fee arrangements;
• Crowdfunding;
• Legal expense insurance; and
• Publicly funded litigation funds.

The study paper also identified 18 opportunities and ideas to consider for structural, systemic or legal change to enhance the use of each financing option in British Columbia. Alternative options explored to mitigate the cost of legal services included litigation budgets, client value adjustments, and new business models.

About the ADAJ

Founded by Professor Noreau, the ADAJ examines the issue of access to justice under 23 separate research hubs, categorized within the following three key research areas:

• Awareness and Knowledge of Law
  • Hub 1: Self-representation and litigants without counsel
  • Hub 2: Compensation for individuals through class action
  • Hub 3: Accessible dockets
  • Hub 4: Clarity of legislation and contracts
  • Hub 5: Legal education in schools
  • Hub 6: Justice and the media
  • Hub 7: Justice statistics

• Legal Practices and Accessibility of the Justice System
  • Hub 8: The function of expert opinion in justice
  • Hub 9: Custody in youth protection
  • Hub 10: The state, municipalities and private dispute resolution
  • Hub 11: Practitioners and private dispute prevention and resolution
  • Hub 12: Paperless justice
  • Hub 13: Curatorship and protection regimes
  • Hub 14: Innu youth protection institutions

• Trust in and Legitimacy of Law and Justice
  • Hub 15: Alternative Measures Program for adults in penal cases
  • Hub 16: Access to justice in detention
  • Hub 17: Rights and freedoms: on the social construction of diversity
  • Hub 18: Measuring access to justice (financial and human costs)
  • Hub 19: Social expectations and awareness of law
  • Hub 20: Controversial practices in law
  • Hub 21: Mental Health and Justice
  • Hub 22: Consumers of financial products and services
  • Hub 23: Practice Models

The ADAJ team is comprised of 34 co-researchers, 7 collaborators and 50 partners from the institutional sector, professional community, community groups (NGOs), and the university community.

For more information on ADAJ, visit its website here.

The post New Accessing Law and Justice Project Aims to Redefine the Practice and Delivery of Legal Services in Quebec first appeared on British Columbia Law Institute.

About the Study Paper on Financing Litigation

The study paper examines the traditional and alternative methods litigants use to pay for litigation. The cost of litigation is a significant barrier to accessing the justice system. While some disputes can be resolved outside the courtroom, litigation is often the only means to achieve an equitable result. However, a litigant’s ability to pay for the legal fees and expenses that come with litigation may become a concern before, or during, the process. Taking a legal dispute to trial is expensive. Many litigants lack the financial resources to take on the risk of an unsuccessful case.

The study paper reviews six financing models that have emerged both in Canada and internationally:

• Unbundled legal services;
• Third-party litigation funding;
• Alternative fee arrangements;
• Crowdfunding;
• Legal expense insurance; and
• Publicly funded litigation funds.

The study paper also identifies 18 opportunities and ideas to consider for structural, systemic or legal change to enhance the use of each financing option in British Columbia. It concludes with a chapter that briefly discusses five alternative ideas that could mitigate the rising cost of legal services and improve access to justice generally. The paper represents a brief introduction to each alternative financing option. The substantive content, research, case law, and other materials are not intended to be interpreted as an exhaustive representation of the information and resources available for study in this area. Research, law, policy and other initiatives continue to develop as more and more opportunities arise to further explore this area.

Noteworthy Updates

Following its release, the study paper continued to generate interest from both the public and legal profession in British Columbia, across Canada, and in the United States. Website statistics report that the study paper has been viewed or downloaded a total of 422 times (209 from the BCLI website and 213 from BCLI’s satellite publications page on the Social Science Research Network website).

Highlights for this update include:

• Mention of the study paper by Dylan Beynon of Mighty.com, in his blog entitled, “Your November Legal Funding News Roundup” (03 December 2017: New York);
• Mention of the study paper in the IMF Bentham Limited Annual Report 2018;
• Mention of the study paper by Gehlen Dabbs Lawyers, in their blog entitled, “Third party funding of litigation in insolvency” (13 April 2018);
• Mention of the study paper by Debra Smith of the Law Library of Murdoch University, “The Financing Litigation Series” (08 May 2018); and
• On June 6, 2018, Kathleen Cunningham presented on a panel at the Canadian Bar Association British Columbia Branch webinar, “Increased Access to Justice: Getting Creative with Financing Litigation”. This webinar introduced BCLI’s study paper and discussed the ways in which practitioners in British Columbia can employ the six financing options to assist their clients.

Statistics on project publications and website engagement

One of the goals of the project is to make its research widely known to interested readers. Here are some statistics, tracking how that information is made available to and accessed by the public, since its publication:

Number of publications issued: 1, Study Paper on Financing Litigation

Number of supporting documents issued: 22, one media release announcing publication of the Study Paper on Financing Litigation, a backgrounder on the paper, and a highlights and list of resources page for each of the six financing models explored in the study paper and the final chapter on alternative methods of improving access to justice.

Number of presentations and articles mentioning the study paper: 11

Number of blog posts on the Financing Litigation Legal Research Project (including this one): 15

Number of social media posts (Facebook and Twitter): 17

Number of page views of project page: 936

Number of page views of Financing Litigation Blog Posts (total): 1,389

This project was made possible thanks to the generous funding from the Law Foundation of British Columbia.

The post BCLI’s Study Paper on Financing Litigation Celebrates its First Anniversary first appeared on British Columbia Law Institute.

Study Paper on Financing Litigation

The study paper examines the traditional and alternative methods litigants use to pay for litigation. The cost of litigation is a significant barrier to accessing the justice system. While some disputes can be resolved outside the courtroom, litigation is often the only means to achieve an equitable result. However, a litigant’s ability to pay for the legal fees and expenses that come with litigation may become a concern before, or during, the process. Taking a legal dispute to trial is expensive. Many litigants lack the financial resources to take on the risk of an unsuccessful case.

The study paper reviews six financing models that have emerged both in Canada and internationally:

• Unbundled legal services;
• Third-party litigation funding;
• Alternative fee arrangements;
• Crowdfunding;
• Legal expense insurance; and
• Publicly funded litigation funds.

The study paper also identifies 18 opportunities and ideas to consider for structural, systemic or legal change to enhance the use of each financing option in British Columbia. It concludes with a chapter that briefly discusses five alternative ideas that could mitigate the rising cost of legal services and improve access to justice generally. This paper represents a brief introduction to each alternative financing option. The substantive content, research, case law, and other materials are not intended to be interpreted as an exhaustive representation of the information and resources available for study in this area. Research, law, policy and other initiatives continue to develop as more and more opportunities arise to further explore this area.

Noteworthy Updates

Shortly after its release, the study paper continued to generate interest from both the public and legal profession in British Columbia, across Canada, and in the United States. Website statistics report that the study paper has been downloaded 219 times (124 from the BCLI website and 95 from BCLI’s satellite publications page on the Social Science Research Network website).

Valerie Le Blanc, lead researcher and writer of the study paper, also published The Financing Litigation Series: Exploring Options to Pay for Legal Services, a six-part, bi-weekly blog series featuring each of the six financing models explored in the study paper. Each post contained a list of resources extracted from the chapter, and a highlights page. The blog posts were published during the period October 18, 2017 to January 10, 2018. A feature blog post was also published on February 8, 2018 summarizing the Alternative Methods of Improving Access to Justice that were discussed in the final chapter of the study paper.

The study paper was also featured in the following:

• Mention of the study paper at the Canadian Bar Association BC Branch Unbundled Legal Services Section meeting—October 18, 2017;
• The Lawyer’s Daily (Ontario), The Scrivener (British Columbia), The Advocate (British Columbia) and The Litigation Finance Journal (New York); and
• Social media posts by law professors Noel Semple (University of Windsor, Faculty of Law) and Anna Lund (University of Alberta, Faculty of Law).

Events in 2018

On February 9, 2018, Kathleen Cunningham participated on a panel discussion on the topic of financing insolvency litigation at the 15^th Annual Review of Insolvency Law Conference in Vancouver, a conference co-chaired by BCLI Director Dr Janis Sarra.

On June 6, 2018, Kathleen Cunningham will present on a panel at the Canadian Bar Association British Columbia Branch webinar, “Increased Access to Justice: Getting Creative with Financing Litigation”. This webinar is being held to introduce BCLI’s study paper, and discuss the ways in which practitioners in British Columbia might be able to employ the six financing options to assist their clients. To register for the webinar, click here.

Statistics on project publications and website engagement

One of the goals of the project is to make its research widely known to interested readers. Here are some statistics, tracking how that information is made available to and accessed by the public, during 2017 and 2018:

• Number of publications: one, the Study Paper on Financing Litigation
• Number of supporting documents issued: 22, one media release announcing publication of the Study Paper on Financing Litigation, a backgrounder on the paper (PDF), and a highlights and list of resources page for each of the six financing models explored in the study paper and the final chapter on alternative methods of improving access to justice.
• Number of presentations and articles mentioning the study paper: 7
• Number of blog posts on the Financing Litigation Legal Research Project (including this one): 14
• Number of social media posts (Facebook and Twitter): 17
• Number of pageviews of project page: 634
• Number of pageviews (total): 819

This project was made possible thanks to the generous funding from

the Law Foundation of British Columbia.

The post The Financing Litigation Legal Research Project: Six-month Update first appeared on British Columbia Law Institute.

Throughout the consultation phase of the Financing Litigation Legal Research Project, several ideas were raised to consider other ways to improve access to justice that fell outside the scope of the project. Chapter 12 of the study paper outlines five alternative ideas to improve access to justice, namely:

1. Increased use of alternative dispute resolution processes;
2. Expansion of legal aid;
3. Promotion of cy-près orders;
4. Community Contribution Companies; and
5. New business models.

While the chapter does not include a full analysis of how each idea works, or could work, it does offer an an overview to give the reader some food-for-thought over what other opportunities may exist to continue examining how people pay for litigation.

Highlights from the Study Paper on Alternative Methods of Improving Access to Justice

Ideas to consider

1. Increased use of alternative dispute resolution processes
   1. Alternative dispute resolution—use of mediation services for parties who qualify for legal aid in divorce proceedings can help promote better case outcomes;
   2. Civil Resolution Tribunal—cost-effective, user-centered process to resolve strata and small claims disputes. Encourages use of facilitation or negotiation services to reach agreement; and
   3. Quebec PARLe—online dispute resolution initiative to resolve consumer disputes.
2. Expansion of legal aid
   1. Legal services tax—direct revenue collected from the tax on legal services to legal aid; and
   2. Use of property liens under the BC Legal Services Society Act.
3. Promotion of cy-près orders
   1. Incorporate terms in pro bono retainer agreements to allow clients to assign part of a cost award back to the advocacy group to increase its revenue stream.
4. Community Contribution Companies (C3s)
   1. Structure law firms as C3s to include social goals as part of its overall mandate; and
   2. Donations from subsidiary C3 law firms to free legal clinics.
5. New business models
   1. Use of unbundled legal services for development of new business model.

Some Recent Developments on Alternative Methods of Improving Access to Justice (since June 2017)

• West Coast LEAF published a list of recommendations to reform BC’s justice system in its report, Justice Reform for BC, released in Fall 2017. Working in collaboration with BC Civil Liberties Association, Pivot Legal Society, and Community Legal Assistance Society, the report lists 10 recommendations that include Indigenous rights and implementation of the Truth and Reconciliation Commission recommendations, reform of BC’s corrections system, review of legislative provisions governing detention of persons with mental disabilities, among other issues. Included in the list of recommendations is the elimination of the Legal Services Tax for low to middle-income earners, with proceeds directed to delivering legal aid services.
• Canadian Lawyer Magazine published an article on October 2, 2017 on BC’s Civil Resolution Tribunal (CRT). The article provides a history on the development of the CRT, and notes the popularity of its model in assisting other jurisdictions, both within and outside Canada, to develop a similar dispute resolution structure. Shannon Salter, CRT’s Chair, notes the benefits to CRT’s online platform include the ability for litigants to use CRT services “outside of traditional court hours”, saving them considerable costs for child care and time off work, which suggests “that there’s a strong demand to engage with justice services where and when it’s convenient for them.” The article includes commentary from a private practice lawyer who advises strata corporations who receive CRT claims, and also includes discussion of how the CRT might continue to develop in the future. To view the article, visit the website here.
• Canadian Lawyer Magazine published an article on November 14, 2017 on the Law Society of Alberta’s review of alternative business structures for delivery of legal services. Rob Armstrong, elected Bencher of the Law Society, notes that organizations like the University of Calgary Faculty of Law’s family law project currently operate under this model. Law school graduates complete both their articling and first year of practice in the project by providing legal services to clients who cannot afford legal assistance or are self-represented. Armstrong notes due to the high number of non-lawyers in the program, it is not currently regulated by the Law Society. The article notes the Law Society is consulting with lawyers about how it might adapt its regulatory scheme to allow for oversight of alternative business structures like this one. To view the article, visit the website here.
• Michigan Law Revision Commission (MLRC) released its 47^th Annual Report 2015-2016 (n.d). The report summarizes the MLRC’s work over the two calendar years, and topics of current study. One topic under review is a New Cyber Business Court. The memorandum contained in the report “proposes the creation of an online business court: one that would handle large business and commercial claims completely online, rendering dispositive, appealable decisions through online procedures.” The MLRC’s memo reviews existing online dispute resolution models, including Michigan’s own cyber and business courts and private, international and academic models. The memo also examines “the core values and practical considerations in creating an online business court”, namely efficiency, expertise, legitimacy, finality, and fairness. The memo concludes with recommendations for the structure of a New Cyber Business Court. To view the full memo, visit the MLRC website here.

About the Financing Litigation Legal Research Project

The Study Paper on Financing Litigation (PDF) examines the traditional and alternative methods litigants use to pay for litigation. The cost of litigation is a significant barrier to accessing the justice system. While some disputes can be resolved outside the courtroom, litigation is often the only means to achieve an equitable result. However, a litigant’s ability to pay for the legal fees and expenses that come with litigation may become a concern before, or during, the process. Taking a legal dispute to trial is expensive. Many litigants lack the financial resources to take on the risk of an unsuccessful case.

The study paper reviews six financing models that have emerged both in Canada and internationally:

• Unbundled legal services;
• Third-party litigation funding;
• Alternative fee arrangements;
• Crowdfunding;
• Legal expense insurance; and
• Publicly funded litigation funds.

The study paper also identifies 18 opportunities and ideas to consider for structural, systemic or legal change to enhance the use of each financing option in British Columbia. It concludes with a chapter that briefly discusses five alternative ideas that could mitigate the rising cost of legal services and improve access to justice generally.

This project was made possible by funding from the Law Foundation of British Columbia.

Useful Links

• Study Paper on Financing Litigation (PDF)
• Highlights from Chapter 12—Alternative Methods of Improving Access to Justice (PDF)
• List of Resources—Alternative Methods of Improving Access to Justice (PDF)
• The Financing Litigation Blog Series

The post The Financing Litigation Legal Research Project: Alternative Methods of Improving Access to Justice first appeared on British Columbia Law Institute.