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Access to justice? Expert says there should be an app for that

Thursday, October 20, 2016 @ 8:00 PM | By Cristin Schmitz

Cellphone apps could improve access to justice and lawyers should push for such technological innovations if they don’t want their role in delivering legal services to be supplanted by others, an expert on law and economics argues.

Professor Gillian Hadfield of the University of Southern California contends the complex, expensive and government-and lawyer-dominated legal system that leaves billions of would-be legal consumers out in the cold must, and can, be transformed into a “more agile, market-based and globally oriented legal infrastructure.”

Her ideas, honed over the past decade, are out in a new book next month, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy. (The title alludes to Thomas Friedman’s 2005 bestseller, The World Is Flat, which argued that nations, businesses and individuals must change to stay competitive in a global marketplace where historical and geographical boundaries are increasingly irrelevant.)

In her Oct. 6 keynote address to a conference on civil justice and economics sponsored by the Canadian Institute for the Administration of Justice (CIAJ), Hadfield told lawyers and judges: “The way forward, I think, is to get more of the money and brains currently inventing the future of things involved also in inventing the future of law. Some of those engineers at Google inventing that driverless car should also be in businesses trying to figure out how to regulate that driverless car.”

She explained: “We need to attract some of the capital that is now directed at developing our leading edge technologies to the problem of developing regulatory technology we need. So that means a bigger role of competitive markets in the production of our legal infrastructure…I think this is just the natural next step in the evolution of human systems for managing complexity, and that’s the story I tell in the book.”

“We’re not going to solve the problem [of insufficient access to justice] with legal aid, pro bono or other small rule changes,” Hadfield told The Lawyers Weekly after her talk. “The problem is huge” and technology, developed by companies with a profit incentive, could be a big part of the solution.

She said there is no reason, for example, why cellphone apps can’t be developed that would allow people to take a picture of a legal document, e-mail it in and then obtain legal information and advice on their phone. “You don’t think you could make money off an app like that, that helped people understand the documents that they’re getting? There’s a lot of value there,” Hadfield said. “There is money to be made. There’s a lot of people who need legal help and who could pay something for legal help. [Lawyers] should be looking for those people.”

Hadfield sits on the advisory council for Legal Zoom, the American online company that creates legal documents and refers clients to attorneys for a flat fee. Legal Zoom is still prohibited by bar association rules from hiring its own staff lawyers to advise its customers, but if those rules change, it could efficiently supply affordable legal advice to clients, as well as good jobs to many lawyers, Hadfield suggested. Lawyers “would be on the end of the phone line when you…say: ‘I want to incorporate my small business. I’m managing a divorce. I need a will.’ Right now you can get the forms, and you can get basic information. But what you want is a little button on the website: ‘Talk to a lawyer now. Show your document to a lawyer right now. Not sure about that existing will you’ve got? Take a picture of it and somebody will look at it.’ ”

Why aren’t law firms doing this? “Because the business of offering that is technology [and] scale,” Hadfield said. “It’s a business — so business people should be running it, and hiring lawyers to provide the legal service.”

She advised Canadian lawyers to look to the U.K. where legal advice is available online.

“They’ve allowed [alternative business structures] to operate, so if you’re filing an application to modify child support, for example…for a flat 200 pounds or 100 pounds you can get assistance drafting that affidavit, drafting the motion, unlimited phone and e-mail support.”

Hadfield noted the prevalent North American model of hourly rate billing doesn’t leave law firms enough room, after overheads and other expenses are deducted, to reduce legal fees to a level that is affordable to billions of would-be consumers of legal services here and abroad. “Our legal systems are operated by lawyers and judges who make up the legal profession that faces no remunerative competition from innovators who might come up with some better way with getting law done, but I really think it’s impossible to continue down this path,” she opined.

Hadfield said critical regulatory reform includes removing barriers to alternative business structures, as in the U.K. — a highly contentious proposal among both U.S. and Canadian lawyers, as shown by the strong opposition to non-lawyer majority ownership of law firms in last spring’s Ontario bencher election which led to convocation shelving its exploration of the proposal.

That was a “major failure of professional responsibility on the part of the bar,” Hadfield argued. “The bar is obligated to be acting in the best interests of the public and the evidence is absolutely there that this would improve access to justice, and lower the price, and make this more available.”

Hadfield acknowledged many well-meaning lawyers are sincerely concerned that liberalizing the legal services market will not facilitate more access to justice for the public. “But I don’t think they have really taken on board fully the urgency and the magnitude of the problem, and so there are misunderstandings,” she said. “There’s fear. And then there is just some bare protectionism.”

Other speakers at the conference also advocated for a mind shift with respect to technology use and the justice system. Litigants are more aptly seen as customers than as passive participants in the justice system, said Ontario Superior Court Justice Frances Kiteley. “If we treat the people who come to court like customers, we have to respond to their circumstances, their way of functioning in society, and provide access to justice in a way that responds to those needs, meaning we need to use technology, and [courts and judges] need to get behind that so it doesn’t get foisted on us as an unwilling organization,” she advised. “We need to partner with the other stakeholders, including Ministry [of the Attorney General] and courts administration people to make that happen willingly,” she told The Lawyers Weekly.

Shannon Salter, who chairs the Civil Resolution Tribunal (CRT) of British Columbia, said the new online entity has had lots of visitors seeking to resolve strata (condo) disputes, since it opened its virtual doors in July. The world’s first online tribunal that is fully integrated into the public justice system is accessible around the clock from a computer, smartphone or other mobile device with an Internet connection, she said. “The technology seems to be working well,” Salter told The Lawyers Weekly. “We’ve been able to be very responsive to public comment and questions, and we’ve had about 2,000 people in the last 10 or 11 weeks go through the front end of the CRT — the solution explorer, which is the guided pathways, free legal information and tools portal.”

About 100 of those people have so far filed formal claims.

Salter said the CRT fits with many of Hadfield’s themes, including focusing on early dispute resolution, empowering people with tools and information and connecting people to experts, such as facilitators who can help mediate their dispute, as well as adjudicators. Developing a CRT app for the smartphone was “a huge priority because that’s how you can make [the tribunal] most accessible to people with barriers,” Salter explained. “Our low-income community advocates, who we consult very regularly, tell us technology has to work on smartphones because for their low-income clients that may well be the only piece of technology they have in their household.”