Few would dispute that an essential ingredient in addressing the access-to-justice crisis is technology. Technology can provide the economies of scale, efficiencies of process and tools of innovation that can enable legal services to be provided more broadly and equitably.
But what must be done for technology to improve access-to-justice? How can we best harness technology and put it to effective use in bridging the justice gap?
At the Legal Services Corporation’s Innovations in Technology conference last week in Portland, Ore., LSC President James J. Sandman opened the event with a talk in which he outlined the five requirements that he believes are necessary if we are going to realize the potential for technology to improve access to justice.
The requirements, he said, are not his original ideas, but based on a distillation of what he has heard and learned over his nine years as LSC president.
“If we could accomplish these things, they’d make a significant dent in the yawning justice gap in our country,” Sandman said.
1. A meta collaboration to draw a global strategic blueprint for access-to-justice technology.
This has two components, Sandman said. The first is a global clearinghouse of information about who is doing what in legal technology, in both the for-profit and nonprofit sectors. Currently, there is no single repository of information about technology for access to justice that is accessible and has global information. In fact, there is no such repository even in the U.S. “What is needed is a comprehensive catalog of who is doing and has done what, together with an assessment of the value of that work,” Sandman said.
The second component of this meta-collaboration is a network to build a global strategic blueprint – a mechanism for setting priorities and for developing a master plan, rather than proceeding with the siloed and disperse development of 37,000 apps, “a modus operandi often driven by the interests of individuals or developers or by the happenstance of local, one-off needs.”
The challenge, Sandman said, is deciding who can and should do this. “We need a host, an owner, a sponsor, an organization or a consortium with the credibility and the financial capacity to do this.”
2. Clear-eyed recognition of the limits of technology to solve access-to-justice problems.
We need to acknowledge that there will always be some segment of the population – maybe the segment most in need – that technology will not be able to help, Sandman said. We also need to acknowledge that legal-process reform must proceed in sync with the development of access-to-justice technology.
If technology is to realize its potential to enhance access to justice, current legal process must change. The legal process is incomprehensible to most people, and technology cannot solve the complexity built into our current legal system. “We need to avoid the temptation to focus only on technology, because process reform is too daunting and will take too long,” Sandman said.
Sandman quoted an earlier commentator on the legal system who said:
“We have to make law less complex and more workable. Lawyers have been paid, and paid well, to proliferate subtleties and complexities. It is about time we brought our intellectual resources to bear on eliminating some of those intricacies.”
That speaker was Attorney General Robert F. Kennedy, in a speech delivered on Law Day in 1964. “I don’t think the situation has improved in the 56 intervening years,” Sandman said. “I think it’s gotten worse.”
3. Collaboration among a broader range of participants.
We need much-broader collaboration than currently exists. Sandman said. That should start with lawyers, technologists, the courts, regulators, and legal academics, but not end there. It should also include people who are not part of the conventional A2J community – public librarians, health care providers, academics outside law, engineers, management experts, social service providers.
“Of one thing I’m certain: An innovation initiative led by lawyers is an oxymoron,” Sandman said. “Lawyers are not good at innovation. They are too risk-averse, self-protective, prone to focusing on problems, and too wedded to precedent to be able to drive change at scale. We always need to ask, ‘Who is not here in the room from whom we could learn?’”
Calling funding an “obvious and perennial need,” Sandman said we are resource starved and we need to be creative about feeding that need. In particular, he called out the lack of cross-fertilization between the for-profit tech sector and the non-for profit tech sector. We need to mine the prospect of in-kind contributions from the for-profit sector, both technology companies and law firms.
“I detect a willingness in that sector to share know how, to share software, to share hardware, to improve access to justice,” Sandman said. As an example, he cited DLA Piper, the second-largest law firm in the world, which, he said, convened a global summit on access to justice and technology in London last year. At that summit, the firm offered to make its own know how and technology resources available to the access-to-justice movement.
If these other requirements are to be met, we need leadership, Sandman aid – leadership to build a global strategic blueprint, to create and curate that clearinghouse of information about legal technology, to set and build consensus for a set of priorities, to accomplish the process simplification that must accompany technology development, and to tap the funding necessary to achieve change at scale.
“This requires leadership at a grand level,” he said. “No major change happens without strong leadership – individual leadership as well as institutional leadership. We need to systematically identify people who have both the power and the personal inclination to lead change in access to justice and to cultivate people who have the power but have not yet developed the personal inclination to help.”
Sandman said that he is thinking of people such as Utah Supreme Court Justice Constandinos “Deno” Himonas, who is leading dramatic change in regulatory reform in that state, and who, Sandman said, has both the power and the inclination to lead change.
We need to find more people like him, Sandman said, and then to partner with them and work with them “to proselytize, to conscript peers and expand the movement.”
“We need leaders who will think big, who are willing to craft and implement solutions commensurate with the magnitude of the problem, and recognize the urgency of the crisis in our system today,” Sandman said.
“That ultimately should be our goal: change at scale, solutions commensurate with the magnitude of the problem, pursued with the urgency that the crisis in access-to-justice demands.“
Since coming to the LSC nine years ago, Sandman said, “the experience has radicalized me. I think it is an outrage that millions and millions of Americans, year after year, are unable to assert and vindicate their legal rights. This is the United states of America. That is wrong.”
“We cannot let the persistence and the enormity of the access-to-justice problem anesthetize us to its human consequences, to cause us to accept the status quo as the inevitable result of inadequate legal aid funding. We cannot afford to tolerate the continued degradation of justice to the detriment of the disadvantaged.”
Closing his talk with a rallying cry to the nearly 600 people in the room, Sandman said that, if any group can rise to this challenge, it is them.
“You have the creativity, the passion, the vision, the energy, the optimism, the faith and the hope to drive change. Let’s set the world on fire, because we know what’s at stake.”
What’s at stake, he said, is what Alexander Hamilton described as the first duty of society – justice.