With the first LSC Technology and Access to Justice Summit completed, and the second in the planning phase, this blog’s guest blogger Claudia Johnson offers these general thoughts on directions for the future.
Accountability: The commitment to using technology toward increasing access needs to flow up to the funders of legal aid—and needs to be built into the accountability of the program receiving public funds. It is not just a commitment, but also to effectiveness. The programs that receive, federal, state, county funds need to prove that they are staffing and handling the cases in the most effective way. That they are incorporating tools and developments to ensure that their practice is attune not only with the demands placed on the system, but also that is responsive to the demands of younger, remote, more tech savvy clients. Is it state of the art to have one FTE handle 40 cases per year? Or are lawyers in the private sector handling more full litigation cases per attorney through the use of technology? Can one lawyer handle 200 cases if they have support staff and good technology to case manage those cases?
The Delivery Continuum: The delivery continuum is diverse and is expanding, just like the health care did in the 1980s and 1990s with advent of newer smaller medical equipment and better computer systems and technology. As other fields such as medicine move to provide services outside of the hospital and use less invasive procedures, legal clients and information seekers will expect similar advances in other professional disciplines including law. This is a time to consider what the basic technical advances in the legal services industry can mean in terms of providing more and better, easier and faster legal services to clients and non-clients (rejected due to resource limits or other good reasons) alike. Technology will get smaller, more portable, and more versatile. So should the practice. Just as they now do gall bladder removals (laparoscopy) outpatient, legal cases will no longer need a visit to the legal office—some things will be done unbundled, some things will be done pro se—and only the hearings/filings that really need a lawyer will be done on retainer (for example a motion in limine). This is a blog on ipads—and how they could be used in legal delivery services to increase access to justice and other innovations. https://accesstojustice.net/2011/11/17/we-welcome-guest-blogger-claudia-johnson-blogging-on-atj-tablet-ideas/
Bricks to Technology Continuum: Beyond brick and mortar and beyond downtown models: In legal service the online of legal deliveries tools and services, and more robust databases and telephone systems, now allows for having a legal services continuum that spans from brick and mortar downtown offices to virtual large group processing workshops. The way services are delivered is also rapidly expanding with the advent of unbundled services. Now there are more hybrid models of practice than prior to the mid-1990s. Lawyers and clients are sharing more and more the responsibility of working on a case.
All these changes in the places and ways to provide legal services and modes of practice/service delivery are exciting and need continued experimentation. Over time, not just for the SRL, but also for those being represented by attorneys, the need to share, learn, teach, edit drafts, collect facts, provide advice and options, gather documentation will all move to online methods. This is a time to consider what the basic technical advances in the legal services industry can mean in terms of providing more and better, easier and faster legal services to clients and non-clients alike.
There is an aspect here of urban vs. rural and penalizing the poor who happen to be outside of the urban core. Should poor people who need legal services have less access to justice than those living in urban areas with more resources and programs? Do well resourced urban programs have any obligation to serve those outside of their urban areas? Is the accident of geographical location the most rational way to allocate services, from a client point of view? Do funders of legal services have any obligation to expect the urban programs to provide remote services to the suburban rural poor? And would urban programs expanding their reach to suburban/rural areas be viewed as a threat by the providers of legal services in those areas?
Here is a blog about only keeping the litigators downtown, and moving everyone else to where the poor are now in a lot of big cities. Poor people are moving out of the city to the suburbs: the suburbs, using technology as the back bone. https://accesstojustice.net/2012/01/05/claudia-johnson-blogs-on-location-of-services-where-the-poor-now-are-in-the-suburbs/
Metrics: We need to develop metrics and methodologies to prove that technology improves quality and increases quantity. Methodology needs to be developed to develop the data by the most common technologies being used in legal aid, starting with hotlines (20 or more years of experience and data), to online document assembly (7 years), to online intake (past 2 years) to mobile technologies (6-18 months).
A Seamless System: The overall vision of legal funders and legal services providers needs to include a vision for a seamless system for clients. In intake for example, seamless intake and referral system so that poor persons don’t have to tell their painful and private stories to multiple staff persons eat every organization they request help—to create an intake and triage system that is based on respect toward the client population by reducing the number of applications a person submits before they secure a successful referral. If no referrals are available to provide that conclusion to the person in a timely manner—per the ABA SCLAID Legal Services provider standards.
Triage: Any triage system needs to take into consideration the capacity of the person to conclude the case with the desired outcomes (if realistic). This includes an assessment of attitudes, and also of skills. A low literacy person, no matter how simple the case, will flounder in writing a letter to a landlord to demand repairs. A person with cognitive impairments, even if there is a possible stipulation, may not be able to agree to settlement without more. Legal services providers and funders need to start to understand that to reach competency, litigants not only need knowledge of the law, they also need to develop and understand their attitudes and the skills they need to complete the case. (Some of this is echoed on point 10).
Status Changes: Persons, who are deemed to be able to complete their own case as a self-represented litigant, may change status due to accidents, health or other events in their lives. Legal services need to be open to reconsider these applicants as their circumstances change.
Priority People: Disabled, LEP, elderly, and other vulnerable populations need to receive priority when allocating resources for full rep legal services. Funders need to understand that working w/vulnerable or chronically under represented communities takes more time and more resources, and thus there are already built in perverse incentives not to serve these groups. To overcome those negative incentives, funders need to provide positive financial incentives and require new measures/outcomes to ensure vulnerable groups do not remain unrepresented.
Clear Definition of Self-Representation: We need a common definition of what a self-represented litigant is. Someone who receives counsel and advice is receiving legal services, and is a client under the attorney client priviledge in most states. Are they self-represented litigants if they go to a hearing without a lawyer, but then call the lawyer to get more advice on what to do next? Is a self represented litigant, represented? Does representation imply that a lawyer is involved in some way or form? What is the difference between a self represented litigant and a pro se client? Is pro se understood as being in the context of court litigation? How about those who are not litigating but in pre-litigation stages but have no lawyer? What do we call them? Information seekers? Pre-litigants?
Court Transparency: Courts need to become more accountable and take some responsibility to explain the court process to the public at large. As long as courts are not required to explain the court process or services to the public a large, the incentive is to make the courts easy to maneuver for the lawyers that are there every day, and not invest in court simplification for the “one of” litigant. Court funders should require courts to simplify their processes, forms, and instructions, so that the average reader, with the average public school education can access the courts. Legal aid groups can participate as partners in these efforts, but the onus or the power to simplify court procedure or operations is not in their power. That power and ability resides in the courts, the legislative branch, and court administrators.
We talked a little bit about competency, types of knowledge, and how the brain works (Brain Rules by Medina)—in this lsntap webinar in tech for self help. Courts and legal aid groups need to move toward teaching enabling behavior to SRLs so they can complete their case:
Practice of Law Regulation: To the degree that Supreme Courts approve and supervise the practice of law at the state courts, they need to start allowing for other innovations to occur to meet the demand for legal services and legal support, unbundled is one first step, but how about Legal support persons who can help w/a case under the supervision of a lawyer, like in the Netherlands. The Bar Associations also need to be included in this dialog as often they block innovation to meet unmet demand by the poor under the “unauthorized practice of law practice” rubric. For example, practice of law regulators and Bar Associations and the ABA should start considering new models of assistance, similar to the ones that exist in the Netherlands and UK. Law students, non-lawyers, and family and friends could play a role in supporting and helping someone without a lawyer move a case or resolve a legal problem not in court. Law practice regulators need to start exploring these innovations and how technology could play a role in them. In addition, they should consider allowing the creation of lay peer groups where SRLs facing similar issues can support each other with some legal information support that is timely. This could include modeling cancer support groups, and care taker support groups for families taking care of Alzheimer patients.
Here is a blog on a new model of self-help: https://accesstojustice.net/2012/03/07/claudia-johnson-on-lay-legal-self-help-support-in-the-small-claims-context-a-trend-to-watch/
Some of the work of Prof. Hadfield from USC who testified in NY recently is relevant here:https://accesstojustice.net/2012/10/08/advocacy-at-new-york-hearing-for-non-lawyer-access-innovations/
Usability: Usability techniques should be included in any project creating a new tool or enhancing the functionality of any existing system. Funders should expect a usability line item in their funding requests and if it is not included, they should inquire. Web design does not always guarantee that usability is being considered on the design of a new tool. It would be helpful to develop usability best practices for the main areas where technology is and could be used in the future, for example a) online intake, b) online forms c) efiling d) analytics for legal supervisors, analytics for fundraisers, analytics for litigation strategy, etc. etc.
Before Performance Measures: Before developing performance measures, we need to understand the current patterns of practice and of services. Without a baseline that includes some granularity, it is hard or impossible to recommend a level of care in legal services. Plus we need an independent group to do the research, so that it can be bi-partisan and not agency/agenda driven.
Blog proposing a framework for research that is impartial, independent, bipartisan and not agenda driven:
Data Mining: All new technology systems that could eventually lead to data mining and research capacity need to take into account privacy for potential clients, clients and former clients as defined by the new ABA model rules. Privacy experts, including 4th Amendment experts need to be consulted. There are various acts that also protect the privacy of children, of non-US born citizens (by country of origin), and by type of vendor. These existing Federal laws need to be well understood as part of the legal landscape of legal research. Moreover, with the advent of ID theft and fraud, courts and legal aid providers need to take special care to not create system that would allow victims to be further victimized, and that they don’t become unwilling participants to id theft, etc. if their systems don’t protect private identifying information from publically available systems. There should be work toward uniform personal identification information (PII) policy that most legal nonprofits adapt, for example, before data is mined, or shared with aggregators.
Funders should fund the creation of mobile app standards for legal nonprofits, in terms of privacy and security for the lawyers that use them, security of the systems that operate them, and the safety of the low income person that uses the app. Privacy experts need to be included in this dialog—and victims experts. Also industry experts that understand what standard practices are in the free vs. paid market of apps need to be included in the dialog, maybe they could be asked to rank the LSC funded mobile apps next time they do a report or privately, so that the groups developing them know how experts view those apps in terms of safety, privacy, hackability. Developing a plethora of apps and new function ability in an eco-system of gadgets where security is not well understood may have negative consequences. http://www.eweek.com/mobile/juniper-networks-study-finds-free-mobile-apps-a-privacy-minefield/
Deployment from Proof of Concept: Exploring the “valley of death” concept in technology and work with courts and funders to ensure that successful proof of concept projects do not wither on the vine because there is no additional resources to take them from pilot, to product, for en mass use and adaptation. The valley of death is well understood in the e-energy world and in the defense application environment and bio medical research. It is the period when a product/innovation has had its proof of concept, it has been shown to work, and it is when the project has to move from duct and tape, to making it robust enough to be used en mass. This period requires serious investment to create a product that will be strong enough to be used by large number of users. There are also marketing, support resources that need to be available prior to deployment en mass. Who will cover these if there is no market at the beginning? How do you make a market? Otherwise the project will be under produced, and those interested in using it will walk away b/c the group releasing the tool can ‘t provide it or support it on time as demand grows. Grants that fund “pilots” need to transition to grants that fund “operationalization”. How do funders other than LSC address the “valley of death” in legal nonprofit technology piloted through LSC? Who are the venture capitalists or their equivalent in the legal nonprofit technology that can help w/the transition if there is no “market” and no profits? Can new models be created? Some of these innovations are addressing market gaps—and so developing a market may take time and more investment—how is that covered? Or will the technology wither on the vine?
Big Data: Big data is changing science and the scientific method. Look at figure 12 on this paper presented to the House of Lords on High Performance Computing, this shows how super computers are changing the scientific method(I apologize that it is my husband’s work) http://top500.org/files/Supercomputers-Paper-London-Final.pdf
Big data will also change legal practice in the private and public sector.
There are developments of big data approaches to private practice problems. The work of Daniel Katz
http://www.digitalpreservation.gov/meetings/documents/othermeetings/Johnson.pdf. Before moving to big data, and graph analytics, etc. the legal field needs to have a very serious discussion. Some of the results of big data approaches could perhaps develop check lists based on fact pattern analysis, for example. d) Employ expert systems and automated checklists to assist attorneys in analyzing fact patterns and identifying the most appropriate and effective legal remedies or strategies. This will include bringing in Big Data initiatives and research emerging in the legal field and government. The work of Daniel Katz needs to be considered in the legal nonprofit world.
We need to get up to speed with this in the legal nonprofit environment.
Data Validation: Data Validation and data entry standards for SRLs—data validation collected through online tools becomes more and more important as systems become integrated. This requires a better understanding of how to elicit information on line from end users accurately, and also creating systems that allow only valid information to be entered or transmitted from one system to another. In addition, it also requires some sort of “standard” that the data entered by the end users’ needs to meet before it is shared with other systems. In the area of self-helpers, the most obvious application of this in online intake or e-filing. How does an online intake application verify the validity of an online intake applicant before that application is entered into a system? More resources need to be invested by vendors, legal aid groups, and courts to develop intra-system data validation standards and techniques. In the e-filing world, this goes beyond the existing ECF4 NIEM standards.
Pro Bono: Develop metrics and a realistic expectation of how much of the justice gap can be closed through pro bono services at current levels of investment. Are the Bar programs that receive no LSC funding, helping more clients in full rep cases than the pro bono programs run by LSC groups? Are there bigger cases filed out of the LSC funded pro bono projects than from Bar Associations? Are there technologies that big firms bar associations and LSC pro bono projects can share? (online forms to manage pro bono case placement, pro bono data bases, pro bono case referrals like VLSP and Bay Legal do to share intake?)
It is unlikely that the justice gap will be closed alone by pro bono services/hours. Coming up with a well-accepted methodology to estimate the maximum potential of pro bono, would be helpful not only to funders, but also to pro bono providers. This is a point that Prof. Hadfield of USC also makes on this paper. http://works.bepress.com/ghadfield/31/
Technology can play a role in seamless referral of cases between different types of probono groups. It can also help identify the cases that big firms might want to tackle pro bono when the LSC group can’t. Shared intake, share databases, etc. are topics that should be explored.
Limited English Proficiency. Last but not least, LEP technology. Legal nonprofits and courts need to consider building a crowd sourced platform to share translation and localization of LEP materials. This should also include plain language translations from legalese to plain English. Beyond machine translation (which is still not effective on a standalone basis) the field and courts need to explore ways to share translation of instructions, forms, and self-help websites, videos, and guides for the public at large. The model could be based on the TED translation project http://www.ted.com/OpenTranslationProject, or be more sophisticated and use statistical machine learning/computational linguistic tools, like the ones Louis von Ahm developed at CMU for Catcha and for Duo Lingo. We need to start a serious discussion about a platform by which people can contribute translations and requests translations, in a way that quality is preserved, the wisdom of the masses is factored in, and technology is leveraged. The project that Jeff Hogue is doing regarding memory translation systems might be the first step (LSC TIG funded), in laying out a foundation. Memory translation is not machine translation— http://en.wikipedia.org/wiki/Translation_memory they are very different technologies and legal aid has yet to explore memory translation systems and platforms to reduce the costs of producing multilingual materials.
Note: These are Claudia C. Johnson’s personal views, not those of her employer.