Innovation and Access to Justice—Part One

By Bob Glaves | CBF Executive Director

Two questions for you to ponder at the start of this post:

  • What was the share of retail sales that happened online as we ended 2021?
  • How does that share compare to the pre-pandemic trend?

The answers follow below, and you may be wondering, what the heck does that have to do with innovation or access to justice? Well, not much directly, but there are many parallels and much we can learn. The retail experience also underscores the critical first step for innovation that too often is overlooked in the legal world: understanding the problem we are trying to solve.

To be clear, there is a LOT of room for innovation in the delivery of legal services to people in need, including through technology, but these opportunities are not always where we might first think.

The answers to my opening quiz

The source for my opening questions was a fascinating Wall Street Journal article last weekend appropriately titled: “The Pandemic Was Supposed to Push All Shopping Online. It Didn’t.” And, drumroll please, the answers are:

  • At the end of 2021, the share of retail sales happening online was just 12.9% of the overall retail total.
  • This share of retail sales through e-commerce at the close of 2021 was roughly in line with the trend line before the pandemic, just slightly higher than the online share back at the start of 2020.

As the article aptly summarizes, “Data suggests consumers are finding a new balance between online and in-person shopping.” However, it turns out that it is not the balance conventional wisdom would have suggested.

Understanding the problem we are trying to solve

Albert Einstein was a brilliant guy with a tremendous impact on the world, and he also was the source of some great quotes. One of them is particularly on point here:

“If I were given one hour to save the planet, I would spend 59 minutes defining the problem and one minute resolving it.”

The retail analogy underscores that the problem can be a multifaceted one, with a range of possible solutions. People, myself included, are more willing than ever to make routine purchases online, and we only got more comfortable with that during the pandemic when we often had little other choice. But now that we do have that choice again, it depends quite a bit on what we are looking at purchasing and why, and the sales numbers don’t lie.

Buying products of course is just a little different than buying legal services and solutions to legal problems, but when it comes to the consumer legal market, there are a lot more parallels than we might expect. I took a deeper dive into the ways we can learn from the retail experience a couple of years ago before the concept of a pandemic had ever crossed most of our minds, but for all the things that are different now that we have lived through these past two years, the lessons we can learn from our retail counterparts are as relevant and timely as ever.

What is at stake and how much we care about it makes all the difference in whether we want or need the personal service experience, and that is something we can learn a lot from when thinking about the role of technology in access to justice too.

Defining our problem(s) of access to legal help

When we take a closer look at access to legal help and defining the problem we are trying to solve, it is quickly apparent that there is no one problem but a series of problems that vary widely depending on the type of issue involved and the person facing it.

Some of the factors to consider in assessing potential solutions are the importance of the matter to the person and what is at stake for them, the complexity of the legal issues, whether unequal power dynamics are at play, the sophistication and degree of objectivity the person brings to it, and whether they are particularly vulnerable in the situation at hand.

And we need to remember what access to justice means to them too, which is more than just getting the right legal outcome and also involves whether they feel like they got a fair shake, particularly when the issues at stake are more important to them.

Potential solutions for problems like a routine traffic ticket or low stakes consumer dispute look very different than they do for someone facing a contested asylum case or a more serious criminal charge, and there is a whole lot in between. 

Where technology fits into solving the problem

Knowing the many variables to the multi-faceted problem we are trying to solve, beware of pitches for one-size-fits-all technology solutions that are going to suddenly transform access to justice. Like retail, these online solutions have their place for simpler or lower-stakes legal matters and people with more sophisticated understandings of the problem they are facing. But too often, these technology-based options are being pitched as free-standing self-help solutions to more complex and higher-stakes issues where more assistance from a lawyer (or in some instances another legal professional) is necessary if we are serious about access to justice.

That said, technology-based solutions have a critical role to play in the larger access to justice puzzle.

First, even if the percentage of cases appropriate for online-only solutions mirrors the retail numbers and is in the 12.9% range, that is a LOT of people who can resolve their legal problems efficiently and fairly on their own. And like in retail, that share should continue to go up with improvements in technology and continued progress on efforts to simplify and streamline the legal process for the bread-and-butter issues everyday people tend to face.

Second, and perhaps more importantly, when we properly define the problem of access to legal help in more granular fashion, there are a multitude of other ways that technology-based solutions can expand and improve access to legal services for people who need them, and we will never close the huge gap in access to justice today without maximizing them.

Examples of where technology has great (and still largely untapped) potential to significantly expand access include:

  • Educating people on their legal rights and responsibilities and helping them be good legal consumers
  • Helping people find information about options for resolving legal problems they are facing and understand the value of the potential solutions
  • Finding and connecting to good lawyers (and where applicable, other legal professionals)
  • More efficiently connecting and interacting with lawyers through remote channels, client portals, and other means
  • Enabling clients to complete simpler procedural aspects of their cases to make limited scope representation a more realistic and affordable solution.

Those are just some of the more prominent examples of how technology can expand access to justice even though it is not the full solution on its own. Again, much like the retail experience.

These examples also underscore that this is not a binary world between technology and traditional legal services. We need to modernize our practices and modernize our regulatory framework to better integrating technology solutions into the mix. To maximize innovation, technology should be part of an integrated continuum of services lawyers can offer to someone in need rather than two separate options.

The road ahead

For all the innovation potential technology presents, there is much more to the innovation agenda for access to justice, but I’ll talk about that more in my next post.

When it comes to technology though, keep that retail analogy in the back of your mind, the shoe fits a lot more than we might initially think. Most times we want or need to try it on in person, and technology can help improve and streamline that process for us, but there are times we know exactly what we want and just want to take care of it ourselves online.