Pandemic III: Justice reconstructed

I ended the previous post in this series by contending that while we need to do what we can to keep the old justice system in one piece for as long as we can, our primary goal should be to build new, safer, better quarters for our justice institutions and move everyone there after the crisis.

So how do we begin that process? Where is that safer location, and how do we get there?

Those are the most important questions facing the growing army of legal innovators and visionaries who recognize the sudden onset of system breakdown in the law and are rushing to help. We are so early in this process that it’s impossible to provide precise and detailed answers — we’re still coming to grips with the reality of our situation and only starting to develop an inventory of what needs to be done.

But I’d still like to offer three suggestions for how we can start to build a new and better justice system out of the ruins of the one that’s now starting to pass away.

1. Study successful triages. Right now, the law’s first responders (see the links in the previous paragraph) are already helping to set up the legal equivalent of field hospitals — online services that can deliver some or most of what the justice system would be providing if it hadn’t gone dark. Here are a few (including, it must be noted, some courts and regulators):

These and other hastily assembled projects are doing what the justice system can’t do while it’s offline; plenty more will follow in their path.

Study these projects, support them if and as you can. But also track and monitor them, and ask: What worked? What didn’t work as well? What were the success features and breakdown points of each one? What resources were required to carry them out, and what other resources would have improved them further? What can we learn about each effort? Innovation is an iterative process, and it requires the review and assessment of case studies to help us advance further.

But the most important question to ask about each of these efforts is: What was the user experience? Wherever possible, collect feedback from the people who used the service: What did this innovative solution do well? What could it have done better, and what did it not think to do? What outcome did you get from using this service, and was it what you needed? Would you use this service again or recommend it to others? (More on this subject in the next section.)

Keep a close record of all these triage projects — but don’t make the mistake of considering them “emergency alternatives,” interesting little lab experiments that can be switched off when (or if) the traditional justice system gets back on its feet. Treat them as if they are the foundation for a new justice system.

Because that’s exactly what they can and should be. If these new services can work this well on a shoestring in a pandemic, imagine what they’ll be able to accomplish with the full force and support of the legal sector behind them. Help turn these field hospitals into our new permanent care centres.

2. Design for people. I wrote a column at Slaw last month, “The Future of Justice in a COVID-19 World,” that profiled British Columbia’s Civil Resolution Tribunal, which I considered the world’s most successful legal system innovation even before the pandemic (and which, I note in passing, has stayed 100% open and operational since the crisis began.) That column contains pretty much everything I can say about the critical importance of incorporating human-centered design into the blueprints for our new justice institutions.

This excerpt from the post gets my point across as well as any:

Look at what the CRT does: It starts its design process by going to the people who have the greatest challenges accessing the justice system and online services. It asks them: “What do you need? How this should this be designed? Help us to understand. Correct us when we get it wrong.” Because if the system works for people with language and disability barriers, it will work for people without them. And if it works for all these people, it will work for lawyers and judges.

Our justice system is designed in exactly the opposite fashion. It is set up for judges and lawyers, and for nobody else. The opinions and experiences of people outside the justice professions are not sought out, because they are of zero interest. This is the real breakthrough of the CRT. It is an entire system designed from Day One to serve the people who need disputes resolved, not the people who are paid to resolve them.

My prediction is that by the end of this year, most Canadian provinces will have their own CRTs either in rapid development or up and running, and I urge American and other jurisdictions to study the CRT, adapt its principles, and copy its framework. (Utah has already gone some distance down this road.)

And for every court administrator or justice official out there who wants to know how to get started, I strongly recommend this invaluable Twitter thread by Darin Thompson at the BC Ministry of the Attorney General’s office. He has invented the wheel for you.

But remember that all of this hinges on human-centred design. As I said in the previous post: If you’re building a function or procedure or system for the fulfilment of legal needs, and you’re doing it from the perspective and priorities of a judge or lawyer or other justice professional, you’re doing it wrong. Build for the users.

3. Create an online consumer legal hub. Whereas the first two items on this list are shorter-term fixes, this is a medium-term project that will take many hands to lift off the ground and send into flight. But it’s not terribly complex, and almost all of the information needed to program it and launch it is readily available or can be relatively easily assembled and programmed. More importantly, if we start to build it now, it will be ready by the time the old houses of justice are ready to come down.

What I’m thinking of here is a website that does what lawyers and judges and courts have not managed to do — bring people into the legal system accessibly, and show them how to get the answers and outcomes they need easily and at no cost. (If I could come with a better name for the service I have in mind, I’d use it, but “hub” is the best I’ve got at the moment.)

Here’s the deal: This pandemic is going to do more than just close down courtrooms — it’s going to radically scale back the ability of the entire legal system to respond to needs and inquiries. Lawyers, legal aid providers, court services workers, and front-line justice officials all will have less time and bandwidth in the coming months, either because they’re trying to work from home, unable to access materials, swamped by the volume of inquiries, or sick and self-isolating themselves.

But we should not be trying to meet these needs on a linear, one-to-one basis anyway, and we certainly will not be able to do so effectively for many months to come. We need to scale our legal information and solutions provision — and we can only do that properly if we conceive and build from the start a system that is intended to scale and is designed for one-to-many solutions.

To my mind, a hub like this would provide two essential services: information about rights and obligations, and pathways to remedies and solutions.

(a) Information: Rights and Obligations

Almost all types of legal information inquiries — whether to lawyers, courts, or anyone else — can generally be grouped into three categories:

  • What am I entitled, by law, to do and to get? What are others entitled to do and to get? What are people’s legal rights?
  • What am I required, by law, to do? What are others required by law to do? What are people’s legal obligations?
  • What am I not allowed, by law, to do? What are others not allowed to do? What are people’s legal limitations?

The hub would guide users looking for this information by asking the users to answer plain-language questions, in a human-designed process that elicits the key details about the user’s situation. This would not, in most cases, require the most advanced machine-learning systems available — flowcharts and decision trees could probably bring most people to the answer they need, although any appropriate AI assistance would of course be welcomed.

This type of service would likely not veer all that closely to “providing legal advice” or engaging in “the practice of law” — but frankly, even if it did, I’m not remotely troubled. Protecting lawyers’ monopoly on legal services is just about the last thing any of us should be worried about in a crisis of this magnitude.

(b) Pathways: Remedies and Solutions

There’s not much point in telling people about their rights, obligations, and limitations unless you can also provide them with the means to act on this information. This would be the more complex and challenging part of this project, because while there are existing precedents for accessing legal information online, there are very few for actually generating legal outcomes online. But that’s what people need, so that’s what this hub must also provide.

To be successful, this service has to do more than point the user to a form or document and tell them where to send it.

  • It would generate the form or document for the user and send it automatically to where it needs to go — the user doesn’t have to fill out a single piece of paper.
  • It would recognize the existence of a valid claim or assertion of a right — and where possible, issue an order or a directive to the executive branch of government to enforce that claim or right.
  • Ideally, it would even enable the transfer or direct deposit of funds owing, or garnish the wages of a spouse or an employer.

This system, in other words, would incorporate the execution of legal remedies into its offerings.

Now, I know what you’re thinking. I recognize the dangers around the automated execution of anything in our imperfect world — I’m not suggesting that you get a machine to call the cops on someone. But I do think you can get a machine to enforce child support payments or fair wage legislation. We can start with the basics, the simplest and lightest execution of legal remedies. If we go no further than that, fine. But we can go at least that far.

Nor am I suggesting that all these capacities would be rolled out at once in a matter of months — obviously, there would be funding issues and negotiations among branches of government to make a hub like this a legitimate one-stop-shop for justice needs. But we don’t need to build the perfect justice hub right away — design principles remind us that we want to build skateboards and bicycles before we ever get around to building a luxury car. But just because we can’t provide everything doesn’t mean we should be content with providing nothing.

This whole project would obviously be a task for government, aided by legal/judicial/regulatory leaders, but guided (as with the CRT) by the people who need the information and services that the hub would provide. Initial iterations would be jurisdiction-specific and limited to the most urgent or frequently requested matters, but later versions could be far more expansive.

How much would something like this cost? I’ll leave that to the programmers and legal tech experts in the room, but if we could find $75 million for a company that aimed to serve Silicon Valley startups and sank beneath the waves shortly afterwards, I’d like to think we could find an amount in that vicinity to start helping hundreds of thousands of people and small businesses with much more pressing needs.

To wrap up this lengthy post, let me reiterate that yes, we should be embracing every available method to keep our current justice system going for as long as we can. Even battered and broken, it’s still the best system we have, and it retains enough strength and momentum that it can carry on some ways further yet. But we need to recognize, even as we do our best to prop the system up, that the pandemic has forced our hand. Our primary goal should be to replace the system, not repair it.

In a way, it’s a little like “flattening the curve” for the pandemic. By self-isolating in our homes, we’re buying time for the medical system to handle the flood of cases and expand its capacity. Similarly, we need to buy time for the justice system to stagger through this crisis as best it can — but before it’s all over, we need to ensure that the construction of new institutions, and the evacuation of people from the old ones, is at least well underway.

We need a new justice system. We’ve known that for a long time. We need to make this new one fit for the century we live in, not the century that ended 20 years ago — or, more accurately, three weeks ago.

Next up in this series: My thoughts about what the pandemic and its aftermath will do to our legal education and lawyer development systems.



7 Comments

  1. Mike O'Horo

    Sounds like TurboTax for Legal. I love it.

  2. Colin S. Levy

    What a post. It seems to me that legal technology continues to operate in a somewhat splintered way and what is truly needed now is for those splinters to join together to create your proposed consumer legal hub. We have enough bright minds and talent to do it. If there ever was a time for this work to commence (and was sorely needed) this is it.

  3. Alan Carlson

    There is a lot already happening in the US along these lines. Here are links to examples of courts and other agencies already moving to a new place

    A) Organizations working on improving access to justice:

    1) Institute for the Advancement of the American Legal System (IAALS) at: https://iaals.du.edu/

    2) The Hague Institute for Innovation of Law (HiiL) at https://www.hiil.org/

    3) Legal Services Corporation (LSC) is an independent nonprofit established by Congress in 1974 to provide financial support for civil legal aid to low-income Americans. LSC promotes equal access to justice by providing funding to 133 independent non-profit legal aid programs in every state, the District of Columbia, and U.S. Territories. https://www.lsc.gov/

    B) Self-help

    1) Self-Represented Litigation Network: “SRLN connects lawyers, judges and allied professionals who are creating innovative and evidence-based solutions so that self-represented litigants have meaningful access to the courts and get the legal help they need.” At: https://www.srln.org/

    2) Probono.net ”From connecting attorneys to those most in need, to creating legal tools to help individuals advocate for themselves, we make the law work for the many and not the few.” at: https://www.probono.net/

    3) “LawHelp Interactive is a website that helps you fill out legal documents for free. It’s simple: we ask you questions and use your answers to complete the documents you need, no lawyer necessary. And if you are a lawyer, we have tools for you too. Find and prepare forms, edit client responses and manage case files, all in one place.” https://lawhelpinteractive.org/

    4) IAALS: “Guidelines for Creating Effective Self-Help Information” at: https://iaals.du.edu/publications/guidelines-creating-effective-self-help-information

    5) Alaska – considered one of the better self-help sites, has always operated remotely, at: http://www.courts.alaska.gov/shc/representing-yourself.htm

    6) California – while not as developed as British Columbia, is a long ways along, at: https://www.courts.ca.gov/selfhelp-start.htm

    7) California has about 1,000 PDF forms, many fillable and savable, for use in all California courts, see https://www.courts.ca.gov/forms.htm

    8) Los Angeles Superior Court (the largest trial court, probably in the world) has web pages to help fill out forms and to e-file the completed forms from home: http://www.lacourt.org/selfhelp/filefromhome/SH_FH000.aspx

    9) Orange County (CA) Superior Court has a form filing and e-filing web page at http://www.occourts.org/self-help/

    C) User centered design approaches

    1) IAALS: “Listen > Learn > Lead, A Guide to Improving Court Services through User-Centered Design” at: https://iaals.du.edu/publications/listen-learn-lead

    2) IAALS: “Think Like a Client” at: https://iaals.du.edu/publications/think-client

    3) Margaret Hagan: Director of Legal Design Lab, Stanford Law School, see https://dschool.stanford.edu/classes/community-led-system-design and https://www.youtube.com/watch?v=C_M2_-OYMtw

    4) UC Irvine Law School course LAW 5907 SEC 1 – Pushing the AI Frontier: Its Impact on Law, Policy and the Legal Profession – “This course is an ongoing process that immerses the students in the world of artificial intelligence and other technologies that are fundamentally changing the way we practice law. It combines both guest lecturers and real world projects for both the law and the policy of technology in the legal arena.” At: https://apps.law.uci.edu/CourseCatalog/cap_details.aspx?id=3729

    5) HiiL’s work in Europe and other countries https://www.hiil.org/

    6) Better use of technology, IAALS: “Eighteen Ways Courts Should Use Technology to Better Serve Their Customers” at: https://iaals.du.edu/publications/eighteen-ways-courts-should-use-technology-better-serve-their-customers

    D) Improving the divorce process

    1) IAALS, “Redesigning Divorce, User-Driven Design for a Better Process”, at: https://iaals.du.edu/publications/redesigning-divorce

    2) IAALS: “Guidance on Developing Problem-Solving Approaches for Families in Court” at: https://iaals.du.edu/publications/guidance-developing-problem-solving-approaches-families-court

    3) Out of Court divorce alternative – IAALS: “Divorcing Together, Report on an Interdisciplinary Out-of-Court Approach to Separation and Divorce ” at: https://iaals.du.edu/publications/divorcing-together
    based on a project operating in Australia

    4) IAALS: “Court Compass: Mapping the Future of User Access through Technology” at: https://iaals.du.edu/publications/court-compass-mapping-future-user-access-through-technology

    E) Portal to help people navigate the legal process

    1) OCSC has started developing a portal, see https://selfhelp.occourts.org/

    2) LSC, Microsoft, and Pro Bono Net to Partner with Alaska and Hawaii to Create Statewide Legal Access Portals – https://www.lsc.gov/media-center/multimedia-gallery/video-lsc-microsoft-partnership-announcement

    3) See also “Imagining an AI-Supported Self-Help Portal for Divorce”, by Alan Carlson, published in The Judges’ Journal, Volume 59, Number 1, Winter 2020, p. 26.

    4) Case management system vendors provide interview and form filing tools, for example, Tyler Technology’s Odyssey ‘Guide and File’ (https://www.tylertech.com/products/odyssey/guide-file ) and ‘File and Serve’ (https://www.tylertech.com/products/odyssey/file-serve ) capabilities

    F) Chat-bots

    1) LASC has Gina who helps people deal with traffic tickets, see upper right corner of page at: http://www.lacourt.org/division/traffic/traffic2.aspx

    G) On changing the legal profession – IAALS “Unlocking Legal Regulation” (https://iaals.du.edu/projects/unlocking-legal-regulation ) and “Foundations for Practice” (https://iaals.du.edu/projects/foundations-practice )


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