Advancing technological means to accessing legal processes, information or decision-making (and more) has been on-going for years now. The coronavirus pandemic has hastened some of the shifts to technology (online hearings or declaring affidavits, for example) and has made those enthusiastic about faster, wider changes even more so. But in one way, nothing has changed: how do we ensure that technological advances increase access to justice for marginalized groups and not leave things the same, or even make the situation worse (because of lack of computer literacy or access to computers, among other factors). It is crucial to include engagement with those who will or might be using them in developing or implementing various technological means to work with the legal system.
One group who have benefitted from new technologies, but have also been disadvantaged in some contexts, are differently-abled persons. One UK report showed that “those with disabilities use technology at a much lower rate than non-disabled people” (see here and report here).
Although dating from 2013, and recognizing that technological improvements have been rapid since then, Disabled World indicates the kind of difficulties that persons with disabilities might face on websites. These include: “a lack of compatibility of Web content with the screen reader [people who experience visual impairments] use”; “a cluttered layout, links and buttons that are too small, as well as other important navigability considerations such as requiring the use of a pointing device, that may make entire functions and sites unusable for [people who experience motor impairments]; and exclusion “from interactive Web chats and other conferencing” for individuals with communication and speech impairments, among other ways in which technology may restrict access.
Online legal information sources that do not provide in-person assistance may be particularly confusing for people with learning disabilities. Information about online hearings may be accompanied by rather complex instructions to follow (see, for example, the three categories of information provided by the Alberta Court of Appeal for electronic hearings using WebEx, which anticipate lawyers and self-represented litigants).
Furthermore, a particular form of technology may respond to the needs of individuals living with particular conditions, it may exclude or make access more difficult for someone with a different challenge. For example,
The same web site often offers opportunities for one group while excluding another entirely. A student who uses a wheelchair might find that the ability to take online educational courses makes the educational process easier for them. Yet if the course web site is not designed to be accessible for students who experience limited hand mobility – participation in the course might be limited, or even impossible.
In the same way, a web-enabled mobile device with a touch screen might appear miraculous to a person with a hearing impairment, yet be a nightmare for a person with a visual impairment if it is not designed to provide alternative methods for interacting with it. The Internet and the technologies related to it present a complex series of issues for people with disabilities, not only as an overall population, but as separate populations within the whole related to the specific disabilities people experience. (Disabled World)
Many providers of technological approaches now recognize not only legal obligations but social requirements to make their products accessible. For example, Zoom, which has become a major videoconferencing tool for court hearings (along with other similar tools), as well as meetings and other legal processes, claims to incorporate ways in which persons with disabilities can benefit from their system at the beginning of the design process, with the involvement of their “accessibility team“.
Persons living with disabilities may also be challenged because of other factors, such as financial vulnerability, making it difficult to obtain assistive devices, even with government assistance.
As with other groups, the only way to make the use of technology accessible for persons with disabilities is to include them in the design process (see article in The Globe and Mail).This requires a comprehensive approach, that also takes into account the way disability interacts with other forms of marginalization.
The objective is not to tweak the various technological means and devices that are at least outwardly changing the legal world (electronic hearings and filings follow traditional practices, they just in some ways — but not others — make them easier for lawyers and judges). It is to think carefully about how technological advances conform to the principles of inclusive design as articulated by the Inclusive Design Research Centre (IDRC) at OCAD University: “recognize diversity and uniqueness” and that “as individuals spread out from the hypothetical average, the needs of individuals that are outliers, or at the margins, become ever more diverse”; “inclusive process and tools” that involves diverse users; and “broader beneficial impact”, meaning that users other than the targeted user may benefit (as IDRC says, the “curb-cut” effect: although providing slight inclines cut into sidewalks was designed for wheelchair users, they are beneficial for people wheeling baby carriages and others, although initially might have been startling for visually-impaired people until designers added a different material or texture).
While digital approaches in the legal world can both benefit and disadvantage persons with disabilities, depending on the nature of the disability and the resources available to the individuals, among other factors, the advantage of digital approaches is that with some effort they can be, ironically, designed as “one-size-fits-one”, as IDRC terms it:
the individual is multi-faceted and the constraints or design needs they have may arise from a number of factors or characteristics, and they all need to be taken into account (e.g., I may be blind, but I don’t read Braille, I have some residual vision so the pictures help me navigate, also French is my second language and I’m currently juggling my kids and my job and haven’t slept all night so I’m stressed and a little bit distracted).
Thus in the context of law, digital education (I’m not assuming remote learning here, but the use of digital tools, whether in-person or remote) can be designed to increase the number of differently-abled persons preparing to enter the legal profession; digital tools can be designed to make participation in hearings and trials easier for judges, lawyers, self-represented litigants and witnesses who live with disabilities; digital information can respond to the different needs of users, particularly self-represented litigants. And so on.
A great deal of “modernization fever” has attached itself to what have actually been necessary measures if the legal system in all its facets is to continue functioning, at least to the extent possible, during the coronavirus pandemic. Some of these steps are now being touted as the way of the future, the new legal world post-pandemic, whether education, legal practice and hearings, for example, joining the initiatives that have been underway for some time in information and dispute resolution. Yet without consideration of how the technology affects marginalized groups, including many differently-abled persons, or, put another way, without deliberate inclusive design, the legal world will no more achieve full access to justice than it does now.