Column

Legal Technology and Access to Justice

Legal Technology is often reported as being intrinsically linked to access to justice. Apps, AI, and digital access suggest an Uber-like ability to receive legal services at the push of a button. A recent Globe and Mail article by University of Ottawa law professor Jena McGill, for example, bore the headline “Better access to justice in Canada? There’s an app for that”. However, while there are increasing numbers of apps and technologies being developed and integrated into the legal world, it is a mistake to assume that technological developments on their own will necessarily improve access to justice for those Canadians currently struggling.

Stanford University’s curated list of legal technology companies currently lists 585 separate companies, but the focus of most is on the improved efficiency of existing services. Ascent, for example, is described as focusing on assisting “compliance and operations staff at financial institutions with maintaining compliance with rapidly changing and burdensome rules and regulations.”

Professor McGill, in her Globe and Mail article, posited that these developments will “decrease the costs associated with conventional legal interactions” and so “have great potential to improve the state of access to justice in Canada.”

While increasing efficiency has the potential to reduce costs, there are a number of arguments to suggest that this will not have a real impact on access to justice. Sam Glover of the Lawyerist website, for example, maintains that the small reductions in costs associated with improved efficiency do not address the primary reasons the justice system is often out of reach. Rather, for many a much more drastic reduction in costs would be needed. As he cites from the US Federal Reserve’s Report on Economic Well-Being of US Households in 2014:, “Forty-seven percent of [Americans] either could not cover an emergency expense costing $400, or would cover it by selling something or borrowing money.” Even if the cost of addressing a legal issue could be brought down to $400, then, it would still be out of reach of almost half of all Americans.

Will Hornsby, a Staff Counsel at the American Bar Association, has also argued that affordability isn’t really the problem. In his view “[t]he research clearly indicates the crisis [in access to justice] involves the recognition, or lack of recognition, by people that their problems have legal solutions and decisions need to be made determining when it is of value for people to pursue those solutions.”

According to the CFCJ’s Everyday Legal Problems and the Costs of Justice Overview Report, the average cost of resolving everyday legal issues in Canada is $6,100 – without accounting for related non-monetary costs. While lawyer’s fees do account for the highest portion of that cost, at 22%, even a significant reduction in that cost still leaves the legal system out of the reach of many Canadians. Only about one in five Canadians seeks legal advice and less than one in ten use the formal legal system to resolve their problems.

It is often countered, as noted by Professor McGill, that developments in legal tech “[a]t a minimum, […] can contribute to improving everyday access to legal information while we continue to work toward bigger, more systemic change.”

However, when all legal tech is grouped together, there is a danger that the systemic change can seem to progress more than it actually does. Yves Faguy, writing in the Canadian Bar Association National Magazine compares the situation to that of the ‘sharing economy’ apps, such as Uber and Airbnb. “Uber likes to trumpet its success in making urban transportation more accessible in under-served neighbourhoods. But the evidence shows that is mostly true for people with money, who travel in relatively affluent areas.” Similarly, lowering costs of the legal system may reduce costs for those with access, but not increase the reach of access to justice. Mr. Faguy further compares the situation to Uber’s success, which has been argued to be a factor in eroding the political will to fix public transportation for the most needy.

This is not to suggest that legal tech cannot have a positive impact on access to justice. But a clear goal is needed. The Ontario A2J Challenge launched by the Legal Innovation Zone at Ryerson University, for example, shows incredible promise. The program sets out a definition of access to justice as existing “when the public can understand and use information and services in a timely and affordable way to prevent and resolve their legal problems and to achieve just outcomes.” Similarly, the Winkler Institute for Dispute Resolution will be hosting a two-day technology and justice Hackathon in February, 2017 that will focus on building technology that will improve access to justice.

While Professor McGill’s Globe and Mail article’s headline provides a problematic conflation of all legal tech as relating to access to justice, she did acknowledge in her article that “Apps are not a panacea for the myriad complex issues we face, and should not take the place of needed political and structural change.” This is, ultimately, the key aspect of legal tech developments.
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Lucas Gindin is a third year Osgoode Hall Law student and film maker. He has a Bachelor of Arts (Honours) from Queen’s University. In addition to his work as a Research Assistant at the Canadian Forum on Civil Justice, Lucas currently serves as a contributing editor for the Osgoode IP IPilogue, and a clinic fellow at the IP Osgoode Innovation Clinic.

Comments

  1. The cause of unaffordable legal services is the lack of innovation in the method of providing legal services. Compare: no doctor’s office provides all treatments and remedies the way a lawyer’s office does for all clients. The production unit for medical services is the whole of the medical services infrastructure. The production unit for legal services is the law office. Therefore, it is not possible to develop the cost-efficiency and degree of specialization necessary to make legal services affordable. In the medical profession there are no generalist-everyone & every service is highly specialized. In comparison, the method of producing legal services is obsolete.
    Law societies are not doing their duty to bring about the innovations in the methods of providing legal services that will keep them affordable. Legal services are produced by a handcraftsman’s method. Medical services are produced by a support services method, as are all services and products in highly competitive commercial markets. No manufacturer makes all parts of its products or services. Competition forces the use of external, highly specialized support services.
    See: “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions”
    at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2533233

  2. Thanks for posting this. I agree, and the comment by Mr. Chasse.
    Unfortunately, I think it’s not the fault of the law society’s only.
    Observe that law is not taught in high schools as part of the core curricula;
    Law books are not available in public libraries;
    Try to do legal research using an encyclopedia – there is nothing.
    It’s not really rocket science but I think much of society is functionally illiterate of the law.

    Thankfully more information is becoming available online through
    social media, blogs, wikipedia (and canlii or course) and in some areas
    outstrips what is available in the government operated law libraries.

    Law societies are subject to legislation which is so vague that it is really
    impossible to say what their job really is. They are effectively beyond judicial review.

    In 2009 our Supreme Court had to resort to the American Restatement
    (of solicitor responsibility) instead of law society rules. What does that say?

    In 2012 the BC legislature amended our LPA to make it clear that the public
    interest in the administration of justice was the ONLY goal of the law society
    (which historical also included the interests of the legal profession),
    apparently at the request of the law society who felt the act was being misinterpreted.
    So… I am not a pessimist, but the changes are slow in coming.

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