Five Requirements for Realizing Technology's Potential to Improve Access to Justice

Remarks at the Opening Plenary Session of the Innovations in Technology Conference
January 16, 2020

Over the course of the past year, I have attended a number of conferences and read a number of thoughtful pieces on how technology can improve access to justice. I have drawn from them a list of five requirements -- things I think are necessary if technology is going to realize its potential to improve access to justice. The list is not original with me. It is a distillation and a combination of what I’ve heard from others.  If we could accomplish all five, I believe we could make a significant dent in the yawning justice gap in our country.

 First is the need for what Margaret Hagan has called “a network” to build “a global structural blueprint” for access to justice technology, or a “meta-collaboration.” I would break Margaret’s proposal down into two components. This is my inference from what she says, and not her words.

I think we need a global clearinghouse of information about who is doing what in technology, both in the for-profit and nonprofit sectors. I am not aware of any single, easily accessible repository of information about technology and access to justice. I do not know of such a tool in the United States, let alone globally. What we need is a comprehensive catalog of who is doing and who has done what, together with an assessment of the value of that work. As Roger Smith noted in a blog post last September, “Of all the emergent issues, what would be the most important . . . ?  The mapping and evaluation of all the initiatives currently underway . . . .” He went on to say, “even some rudimentary information would be extremely helpful as those around the world struggle to learn the lessons from often distant jurisdictions.”

The second component of a network to build a global structural blueprint is a mechanism for setting priorities – for developing a master plan rather than proceeding with the siloed and dispersed development of 37,000 apps, a modus operandi often driven by the interests of individual app developers or the happenstance of local, one-off needs. The challenge in meeting this need, of course, is deciding who can and should do this. We need a host, an owner, a sponsor - an organization or consortium with both the credibility and the financial capacity to do this.

Second. We need a clear-eyed recognition of the limits of technology to solve access to justice problems. We need to acknowledge, as Dame Hazel Genn has noted, that there will always be some segment of the population – maybe the segment most in need – that technology will not help. We also need to acknowledge that legal process reform must proceed in sync with the development of technology if technology is to realize its potential to improve access to justice. As Richard Susskind has emphasized, current legal process is incomprehensible to most people. It requires a 2,000-page user’s guide just to explain it! Technology cannot solve the complexity built into our current legal system. As Shannon Salter, our keynote speaker this morning, has said, technology invites us to rethink everything we do in the justice system, offline as well as online.

We need to avoid the temptation to focus only on technology because process reform is just too daunting and will take too long. As one observer put it, “We have to make law less complex and more workable. Lawyers have been paid, and paid well,” he said, “to proliferate subtleties and complexities. It is about time we brought our intellectual resources to bear on eliminating some of those intricacies.” The observer was Attorney General Robert Kennedy, speaking on Law Day, May 1, 1964, at the University of Chicago Law School. I don’t think the situation has improved in the 56 intervening years. I think it’s gotten worse. Those working on technology are often well positioned to spot the procedural complexity we need to change.

Third. We need to collaborate much more broadly – starting with lawyers, technologists, the courts, regulators, and legal academics, but also with people beyond the conventional access to justice community – public librarians, health care providers, academics beyond law faculties, engineers, management experts, social services providers. We still don’t have the right people at the table. Of one thing I’m certain: an innovation initiative led by lawyers is an oxymoron. Lawyers are not good at innovation. They are 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 from whom we could learn?

Fourth is the obvious and perennial need for funding. We are resource-starved. We need to be creative here. I am regularly struck by the lack of cross-fertilization between the for-profit legal tech sector and the non-profit legal tech sector. I don’t think we have mined the prospect of in-kind contributions from the for-profit sector -- both from technology companies and from law firms. I detect a willingness in that sector to share know-how, to share software, to share hardware to improve access to justice. Last June, for example, DLA Piper, the second-largest law firm in the world, convened a global summit on access to justice and technology in London, and there the firm offered to make its own technology resources available to the access to justice movement. I think there are other firms out there willing to make similar commitments.

The fifth need is for leadership. We need leadership to build a global strategic blueprint, to create a clearinghouse of information about useful 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 create change at scale. This requires leadership at a grand level. 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, and to cultivate people who have the power but not yet the personal inclination. I’m thinking of people like Justice Deno Himonas of the Utah Supreme Court, who has both the power and the inclination to lead change. He is leading dramatic change in regulatory reform in his home state. And he is willing to try to enlist support from fellow Supreme Court Justices across the United States. We need to find more people like him, to partner with them, and then to work with them to proselytize and to conscript peers to 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 who recognize the urgency of the crisis in our justice system today.

That, ultimately, should be our goal – change at scale, solutions commensurate with the magnitude of the problem, pursued with the urgency the crisis in access to justice demands.

I came to LSC nine years ago this month.  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, and 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 continue to accept the degradation of justice to the detriment of the disadvantaged.

If any group can rise to this challenge, it is you here in this room. 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 here know what is at stake. What is at stake is what Alexander Hamilton described as the “first duty of society” – justice.

Thank you.