A Make or Break Issue for Access to Justice

February 1, 2019

By Bob Glaves | CBF Executive Director

Whether an issue is a challenge or an opportunity is often simply a matter of perception. As Winston Churchill once put it, “The pessimist sees difficulty in every opportunity, the optimist sees opportunity in every difficulty.” Over the CBF’s first 70 years, we have taken pride in confronting challenges head on and converting them into opportunities, and that has led to a number of significant innovations and long-term improvements in access to justice.

But sometimes an issue really is both a challenge and an opportunity at the same time. There is one such issue for access to justice looking ahead, a central one where our legal community will need to lead the way in striking the right balance if we are to reach the ultimate goal of a legal system that is truly fair and accessible for all.

That issue is technology, though not for the reasons usually discussed.

To be clear, technology offers countless opportunities for improvements in the access to justice arena (discussed more below), and it is well known today that law has generally lagged far behind the rest of the world. Many smart people have identified the core challenges holding back our profession and the larger legal system when it comes to technology adoption. Bob Ambrogi is one of the most insightful, and his two part series on the Above the Law blog last year summarized those issues well here and here.

The principal reason technology represents such a big challenge in the larger quest for equal access to justice, however, is a more overarching one.

Beware Magic Beans Solutions

That more overarching challenge is the growing risk of overselling the role technology can play in the larger solution to access to justice. That is, the fact that self-help technologies and online dispute resolution can be excellent solutions for lower-stakes issues—like traffic or parking tickets—does not mean those solutions are appropriate or effective for higher-stakes issues that are more complex and emotional and often involve a significant imbalance of power between the parties.

Lawyers and courts continue to be integral for reaching a fair outcome in those latter situations. While there is no doubt that technology can significantly improve the efficiency, accessibility, and affordability of both the delivery of legal services and the court system, it is not a replacement for either.

Many voices out there nonetheless sell various forms of technology that are effective for simpler, lower-stakes matters as “magic beans” solutions for virtually all legal issues. Too many people in access to justice circles are talking in those broad terms as well without kicking the tires to determine whether that actually makes sense in the real world. That represents a growing danger to our cause if government and other key stakeholders believe we have fulfilled the fundamental responsibility for ensuring equal access to justice if everyone at least has access to good self-help technologies and resources in civil cases.

Granted, we are a long way from reaching that point where everyone has access to self-help tools they can use effectively. But we need to be very clear that while technology will play an integral role of any true solution for access to justice, it is not THE solution.

Principles for Considering the Role of Technology

Technology is fast evolving, there are not many bright lines, and few if any of us can anticipate where it will go in the future.  Recognizing that, we should establish some basic principles for considering where technology fits in to the larger access to justice solution.

A. Be clear on what we are trying to achieve

The first thing we should be clear on is what we mean by access to justice. When we get past the lower stakes matters, it is not just a matter of a person getting an objectively fair result, they should believe they were treated fairly in the process as well.

As we consider that definitional issue, we also should be clear on the often pivotal role that good lawyers continue to play in the solution, even with all of the ongoing technological advances we want to incorporate to maximum effect.

A medical analogy is helpful here. In a profession that is far out in front of ours right now in its use of technology—using things like patient apps, remote conferencing and robotics, and incorporating allied professionals on a much larger scale—it is not like the need for doctors has gone away. The “take two of these and call me in the morning” advice that can be automated or streamlined is much different than someone needing surgery, and there is a lot in between.

Law is similar in this regard, which is why we need to be clear about what particular problem we are trying to solve before assessing the appropriate role technology can play.

B. Innovation is not the same as technology

People talking about legal technology often equate it with innovation, but it is not the same thing. As Jeff Carr, Senior Vice President and General Counsel for Univar, recently put it on Twitter: “True innovation, whether in #LawLand or elsewhere, is about “Why” — Tech is about “How” — if you don’t get the 1st right, the 2nd is, as Buffett (Jimmy not Warren) says ‘I have some important but useless information.’

C. Not everything is broken

While there is no question that innovation has a wide berth in the legal space, there are things that actually work pretty well. Tim Harford begins his book Adapt—one of the best books on innovation—with the example of the toaster. For many decades now, the toaster has worked about as well as it possibly can for its core purpose for its end users.

Similar to the toaster example is the peanut butter and jelly sandwich, an ongoing staple for many from the time they were children.

The point being, we should be sure something is broken or not functioning properly before we try to blow it up and start over. That is true in law as well, where we have lots of toaster and peanut butter and jelly sandwich equivalents.

D. Innovation may be in the marketing and delivery as well as in the core service

Even something as established as the toaster and peanut butter and jelly sandwich can benefit from variations and new forms of marketing, a point we should keep in mind in law as well. As LegalZoom is proving with its appealing marketing strategy and website, there is substantial room in traditional law to improve the marketing and advertising of legal help through innovation and technology. The same goes for the delivery of legal services.

E. Beware unintended consequences

The last principle not to lose sight of is the unintended effects technology can have on the relationship between a service professional and client. As Atul Gawande recently noted in a thought-provoking article in the New Yorker, “Why Doctors Hate Their Computers”, technologies that make medical information more transparent and accessible to patients can negatively impact the uniquely human elements necessary for a good doctor-patient relationship. We need to be cautious in the law to keep that balance in mind as well.

A Framework for Assessing Where Technology Fits In

With the above principles in mind, there are four broad areas where opportunity is clearly knocking for technology to improve access to justice in big ways.

1. Helping people better understand their legal issues and when to seek legal help

As online resources continue to be more accessible to all, an increasingly key challenge and opportunity is helping people find reliable information about their legal rights and responsibilities and learn when and where they should seek legal assistance. Central hubs for basic legal information and resources like Illinois Legal Aid Online, paired with easily accessible legal hotlines like CARPLS (and market equivalents for people who can afford to pay) are a place where technology can play a key role.

2. Helping people resolve simpler, lower stakes issues more efficiently and cost-effectively

In surveys and in their own actions, people increasingly are showing an interest and willingness to use online solutions for resolving lower-stakes legal issues, but our profession and the legal system are not yet keeping up with them on this front.

While we do not yet have widely recognized tools like TurboTax or Expedia as convenient hubs for people seeking self-help legal solutions (and our current professional rules make that more difficult than it should be), there are some promising examples we can build on here. Just a few include LegalZoom, entities like TIKD for challenging parking or traffic tickets, and the online small claims court in British Columbia, Canada.

3. Empowering people to handle less complex parts of cases and expanding remote services

Another huge technology opportunity is its role in enabling people to handle less complex parts of their cases. While it needs to work hand in hand with process improvement and simplification efforts in the courts and larger legal system, there are a host of opportunities technology enables, including remote access to courts and interpreter services, e-filing, and access to standardized forms and self-help resources.

4. Improving the practice, business model, and marketing of traditional law

The three opportunities above are key steps to making legal services more affordable and accessible for people in need, enabling lawyers to focus on the more critical and high value aspects of their services to clients in more efficient and flexible ways.

And that is just the beginning of where technology can vastly improve the practice of law and help transform the business model for serving the consumer legal market, which will be the subject of a future post. The core roles of lawyers as counselors, advocates, and navigators for guiding clients through difficult situations all can benefit from technology, as can the way lawyers reach and connect with current and potential clients.

Conclusion

There is no one size fits all solution to ensuring access to justice. Properly funding the pro bono and legal aid system, modernizing the court system so that it is user-friendly and accessible for people without lawyers, and fixing the broken market for consumer legal services are all part of the solution for people facing civil legal issues. Technology will play an integral role on all of these fronts, but it will require strong leadership and support from our legal community to ensure we aren’t throwing the proverbial baby out with the bath water.