The Access to Justice Board through the work of its Technology Committee organized and hosted the first Technology & Justice Symposium on September 9-10, 2016 at the University of Washington School of Law. Nearly 100 people gathered together for the two-day event that focused on legal technology innovation, current court and legal system technology, and the Access to Justice Technology Principles. Washington State Supreme Court Chief Justice Barbara Madsen gave the opening remarks and was followed by Judge Don Horowitz (ret.) and Office of Civil Legal Aid Director Jim Bamberger who presented history of the Access to Justice Technology Principles and how they have been implemented to date.
Later, through a series of panel discussions and flash talks, members of the community presented their current efforts to work towards legal empowerment – using technology to give people help in accessing and securing justice. Mark O’Brien, Executive Director of Pro Bono Net, and Tanina Rostain, Professor at Georgetown Law, provided a national prospective on the use of technology to create access to the justice system during a panel on Access to Justice Technology moderated by Technology Committee Co-Chair Emily McReynolds. The distinguished list of speakers included Washington State Supreme Court Justice Steven Gonzalez, Internet co-founder Vint Cerf, Self-Represented Litigation Networker founder Richard Zorza, Director of the Legal Services Technology Assistance Project Brian Rowe and University of Washington Information School Professors Bob Boiko and Adam Moore. Many of the attendees walked away with ideas for innovative ways to address the justice gap, creating new networks among legal professionals and technologists, and opportunities to update and better implement the Access to Technology Principles.
The project offers significant opportunities to get a much better picture of whether non-lawyer practice is practical, what parameters are realistic, and whether it is right that the idea will advance access to justice. There has been a history in some other states of less carefully crafted programs generating horror stories.
The Limited Practice Rule allows non-lawyers meeting specific certification requirements to provide a small subset of services traditionally provided solely by lawyers. In its Order, the Washington Supreme Court notes the complexity of the American legal system, and the resulting inability of low to moderate income individuals to afford effective representation. The Limited License Legal Technician Rule aims to address this problem by authorizing and regulating “legal technicians” in such fields as family law, where the gap between demand and availability of legal assistance is most apparent.
Despite the good intentions of the new Rule’s proponents, the Northwest Justice Project and Columbia Legal Services have expressed concerns about potential unintended consequences of the new Rule. CLS notes that the Rule may create a “two-tiered” system of justice, where only people of financial means have access to comprehensive legal assistance, while poorer individuals are “relegated to a system that does not provide the full measure of service and justice to which all should be entitled.” NJP points out that:
The Rule does not alleviate unmet needs for legal representation in high-conflict matters;
That the availability of legal technicians may undermine legal aid and self-help services provided by courthouses or other publicly funded entities; and
That potential consumer abuse by legal technicians remains a problem.
The Court, in its Order, addresses these concerns by pointing out the limited scope of activity authorized by the Rule; it notes that the legal technicians, as a group, complement rather than replace full-scope legal representation. The Court acknowledges the possibility of failure, but emphasizes that it is impossible to judge the merits of a novel system without trying it.
Mr. Zorza points to the rapidly growing need for more efficient and cost-effective legal services. Even recognizing that this new rule is an experiment, it remains, as the Court states, a “good start.” Let’s hope it turns into something more.
In a recent order, U.S. District Judge Andrew Carter, Jr. upheld Magistrate Judge Andrew Peck’s ruling that predictive coding be employed in a case involving, among other things, review of some three million e-mails. Predictive coding is a software-based review methodology that allows lawyers to “train” a computer program to recognize relevant keywords and other textual features in documents. In short, the lawyer reviews a sample set of documents, marking certain features (keywords or others) as relevant, and feeds this information to the software, which then learns to use the lawyer’s criteria to filter out irrelevant materials.
New Scientist has a great summary of the case. As far as the access to justice community is concerned, Judge Carter’s order may represent a milestone in the interaction between technology and the judiciary. Manual document review by humans is a time-honored fixture of the legal profession, but it isn’t particularly efficient, may create prohibitive costs for litigants, and can, in certain cases, be less effective than technological review.
Thomas Gricks, defense counsel in this case, claims that predictive coding would allow him to conclude his document review in two weeks, and at only one percent of the cost of a thorough manual review. Technology that reduces costs and increases effectiveness and efficiency when properly applied has tremendous applications for enhancing access to justice. Technology-enhanced, efficient discovery processes allow lawyers to take more clients, each at reduced costs. The rise of this sort of streamlining should be of great interest to all access-to-justice advocates.