In my last Slaw post, I reviewed the concept of “universal design”, which was initiated about 25 years ago to respond to the increased participation of persons with disabilities; at the time, it tended to be limited to the built environment, although it has since expanded to other contexts. In this post, I begin considering how universal design might provide a feasible framework for the legal system. My post of May 5, 2020 also provides background.
INTRODUCTION AND REVIEW
The significance of universal (or inclusive) design is the creation of systems that contain within them the capacity to be used by everyone rather than to “add on” accommodations, although adjustments within the design to accord with individual needs are expected. One of the advantages of universal design is recognizing that changes for some people may be beneficial for many other people.
An early example is the cut in the sidewalk curb; although developed for people in wheelchairs, it obviously also benefits people pushing baby carriages and anyone for whom stepping off or onto the sidewalk might be even a little bit difficult. So-called accommodations in education to allow English as a second language students or students with certain learning disabilities greater flexibility to work at their own pace (such as posting materials on line or take-home exams) also benefit other students who are temporarily “distracted” by personal problems, for example.
In my earlier post, I emphasized the importance of the user-centred approach as an element of universal design, recognizing that “primary users” have a wide variety of legal needs (such as obtaining information, preparing for a hearing, negotiating a settlement) and often opposing legal needs (for example, landlords and tenants are both “users”). Put simply, the process takes the viewpoint of the person who will use the system to achieve particular ends through the legal system; for some purposes, other “users” will be those who help the first group (lawyers, paralegals, trusted intermediaries may all assist primary users in achieving their objectives or, in the case of adjudicators, may determine which of the outcomes sought by different users will be successful).
Another concept to which I referred last time is “usability”, involving how easily users are able to learn how to use elements of the system and to remember how to use them should they need them again (learnability); consistency in naming; and not asking too much of a user to be successful (“efficiency and effectiveness”).
As I previously mentioned, universal design originated as an alternative to accommodation for persons with disabilities, but Article 2 of the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) defines universal design more broadly:
“Universal design” means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. “Universal design” shall not exclude assistive devices for particular groups of persons with disabilities where this is needed. (CRPD, Article 2)
The crucial part of this definition for our purposes, applying to all users of the legal system, is that the components of the system should be “usable by all people, to the greatest extent possible, without the need for adaptation or specialized design”. Note “to the greatest extent possible”, which recognizes that it may not (and likely will not) be possible to design the system, even if we could start from scratch, to permit use by everyone without at least some degree of adaptation. This is why the Center for Excellence in Universal Design (“CEUD”) recognizes the micro and macro levels of universal design: “a single design feature or a simple product” and “combin[ing] accessible and usable design features, with customisable or adaptable features, alongside more specialised design solutions that deal with the most extreme usability issues” (CEUD). To the extent possible, the capacity for a more individualized or specialized response will exist within the more general feature, described by the paper prepared for the Council of Europe (to which I referred in my previous post) as “develop[ing] mainstream solutions with built-in adaptability and compatibility”.
The principles of universal design (see below) reflect the nature of universal design as a process: how in this particular context, the legal system, do we achieve a result that allows access to the system by everyone, with the inbred capacity to adapt to specialized needs, such as disabilities, language, family circumstance, racialized and Indigenous experiences, economic status and age, among others?. The starting point is to remember that the “norm” is actually comprised of different abilities, family circumstances, experiences and ages, among other characteristics. As Jennifer Jolly-Ryan frames it in “Bridging the Law School Learning Gap through Universal Design“,
Universal design of instruction for learning assumes that diversity is the norm, rather than the exception. Students learn in diverse ways and have a variety of abilities and disabilities. The key to universal design is creating instruction that makes the most of all students‘ diverse ways of learning and abilities. (Jolly-Ryan, 1421)
The same can be said of the legal system: universal design of the legal system assumes that diversity is the norm, rather than the exception. Users access and benefit from the legal system in diverse ways and have a variety of abilities and disabilities. The key to universal design is creating a system that makes the most of all users’ diverse ways of accessing and benefitting from the legal system.
For my purpose, I’m proceeding on the assumption that applying universal design to the legal system is a good thing to do, but of course that may be open to debate. My focus, instead, is on the extent to which it is feasible to apply universal design to the legal system or, perhaps a preferable goal, the justice system. Except as illustrations, it is not realistic to identify all the ways universal design might actually be applied. Rather, I ask questions or indicate some areas where universal design might be advantageous.
It is not possible to describe all the ways people access or use the legal system, to explain how hard it is for some people to access it or to consider all the ways people do or do not benefit from it or are harmed by it. One way to describe the legal system is to identify the different steps that a person might have to take in pursuing a case through the system. However, it quickly becomes clear (or it did to me when I sat down to do it) that unless one keeps it very simple and therefore not very meaningful, it rapidly becomes quite complicated, going off in myriad directions depending on the nature and complexity of the case (civil, criminal, family, corporate-commercial, environmental…./two or multiple parties, experienced/inexperienced users), how far into the system the parties take it (resolving it quickly or taking it through to the appeal process, including by being obstructionist), the characteristics of the parties (represented/unrepresented, hostile, collegial), the forum (tribunal or court, algorithm, arbitration) and approach to resolving the dispute (negotiation, mediation, trial).
EXAMPLES OF LEGAL MATTERS
A few examples indicate how quickly an apparently straightforward legal matter might become complicated from the perspective of those involved, from the areas of family, workplace discrimination and criminal.
Example 1: Assume A decides that problems in the relationship with their partner, B, leads them to want to end the relationship. A might assume that they should initiate a family case, but the first question A really needs to ask is whether the problems are really legal questions or whether they can be resolved through other means. Assume further that A decides (whether they have asked that question or not) they want a separation and eventually a divorce. Assume A and B, who have no children, come to an amicable agreement on their own about how to proceed, are both able to afford separate legal representation who will explain and lead them through the requirements under the recently amended provincial family law legislation (to accord with changes to the Divorce Act) and the newly amended Divorce Act to come to an agreement about division of property and support. After a year’s separation, they file their joint application for divorce under section 8 of the Divorce Act, having addressed whether there is an opportunity of reconciliation to satisfy the judge that there is no chance of same (Divorce Act, ss.8 and 10.
The legal system works well enough for these people, providing them with expert assistance; but their case is relatively straightforward, probably not quite as smooth as I’ve presented here, but close. However, this requires both parties to be economically well-off, more or less equally satisfied that ending their relationship is the right course and with no complicating factors such as children or complications over property. This does not mean people in other circumstances cannot resolve their family disputes without too much difficulty; neither children nor property necessarily result in ongoing conflict, but unfortunately one or both parties’ approach means they too often do.
Now, let’s make a few changes to the facts:
• One of the couple has a lawyer, but the other cannot afford a lawyer and is representing herself.
• The couple have two children, one 7 years old, one 12 years old. Each of the children wants to live with a different parent and one of the children questions the gender they were assigned at birth. One parent is supportive of this child, the other is not. The parents of one of the couple wants to see their grandchildren regularly. (Think of this when both parents have lawyers and when one doesn’t.)
• The wife has been subject to domestic abuse and is frightened of her husband. She might or might not have assistance available from a clinic dedicated to assisting abused women.
• One party is an essential worker and has difficulty being able to meet with the lawyer during the regular hours or getting to court on time (some urgent cases are being heard in person during the pandemic).
• The “proceedings” in the case, including meetings with lawyers, mediation and hearing, are all carried out remotely.
All of these different facts can make resolving the case more difficult and might lead to inequitable results or ongoing conflicts between the parties. Although there are many ways in which the family legal system has been changed, the most recent being the amendments to the Divorce Act and the corresponding changes to provincial family law legislation, designed to encourage out of court resolution and smoother parental-child relations, it can still be difficult for unrepresented parties, for example.
Example 2: Now assume a non-unionized employee believes they have been passed over for promotion because of discrimination on the basis of disability; they file a complaint under the human rights legislation, and are able to obtain assistance in being represented in the process (perhaps in Ontario through the Ontario Human Rights Legal Support Centre). In this example, what appears to be straightforward may be complicated by the resources available to the human right dispute resolution system.
However, here are some other possible complications.
The employee, who is racialized, works in a unionized workplace and wants to file a complaint based on disability discrimination under the human rights legislation, but discovers the proper procedure is to file a grievance against the employer. However, the union does not believe there is a case to be made and refuses to act for the employee who thinks it is because of their racial background and now has to decide whether to bring a complaint against the union for not representing them. If so, the employee will have to decide whether to retain a lawyer. The employer is a small business owner who asks his brother-in-law to represent him in the human rights process (his sister-in-law is a corporate lawyer who has from time to time given assistance to the employer in business matters). Assume further that the employee’s (or the employer’s) first language is not English and they have not really become comfortable with using a computer, preferring in the case of the employee to avoid them (using a computer isn’t necessary at work and they manage without one at home, but pre-pandemic sometimes used one in the library, raising privacy concerns) and the employer prefers to keep records by hand and use other non-digital tools. The proceedings are being held remotely.
Example 3: A is a white man charged with a serious white collar criminal offence; he immediately calls his lawyer (who has represented him in previous minor criminal matters), gets bail, makes a plea deal and receives a reduced sentence.
Example 3, like the initial descriptions in examples 2 and 3, runs relatively smoothly. But would this always be the case.
Assume B, an Indigenous man, is charged with a serious criminal offence; B cannot afford a lawyer, and is refused bail, but is subsequently able to obtain legal aid. His legal aid lawyer requests bail and wants to enter a Gladue report in support, but the wait time is considerable, and B remains in jail until his hearing. Assume that B lives in a remote community that does not have broadband access. Assume C, a 15 year old, goes joyriding with friends. The driver of the car, also a youth, accidently knocks down someone crossing the street or crashes through the ornate fence around a property. The driver and the other kids, including C, run away, but C is caught by a nearby pedestrian and held for the police, but scared of the police, knocks down the pedestrian and runs off. Eventually C is caught; C can get a deal, but she refuses to snitch on her friends and is afraid about her parents finding out.
In the initial scenarios in each of these examples, while all interactions with the legal system have some bumps (delays, for example) once the individual protagonist has contacted their lawyer, they will have a source of guidance as they navigate through the system. Their lawyers may be more or less competent, they may have non-legal issues that complicate their legal problem, they may not necessarily make good decisions, but as far as the legal system itself is concerned, they are probably in the best situation they can be in. The other protagonists, in contrast, for many different reasons will struggle as they wend their way through the system. If they are lucky, they might come across someone who is helpful to them, they may have a compassionate judge, for example, or they may benefit from a Crown who is too busy to spend too much time on the case. In short, their experience with the legal system is dependent in large measure on chance, not on the design of the system. And the experiences of the different protagonists in these scenarios are affected by their age, their Indigeneity, their economic status, their family status and other family complications, their level of representation and their familiarity with English or with computers.
Let me make a brief detour here. There have been many efforts to improve people’s interactions with the system. Several websites offer information about different areas of law in a way that allows the user to ask questions or follow the stages their dispute would go through. Steps to Justice provides information about Ontario law (see, for example, its Guided Pathways in Family Law that help people fill out the required forms and allows for a live chat within prescribed times [but also makes clear, “This guided pathway does not give you legal advice. For advice about your situation, talk to a lawyer.”]). In British Columbia, People’s Law School provides information and steps to take in several legal areas (for example, the employee who believes they’ve been discriminated against can find help there). The Human Rights Legal Support Centre in Ontario offers legal services in relation to human rights complaints, which “may include legal assistance in filing applications at the Human Rights Tribunal of Ontario (HRTO), and legal representation at mediations and hearings”.
Some of our protagonists had easy access to a lawyer. In the family case, the partners could pay for lawyers. In the criminal case, the individual called on a lawyer with whom they had dealt previously (although the lawyer may not have been the most qualified for the purpose in the example, but if not, she might have recommended other lawyers; it also seems this person could afford a lawyer). The Indigenous accused is able to get help through the community legal system in Ontario or another source elsewhere, but needs to track that source down. There’s no suggestion the non-unionized employee knew any lawyers, but hopes to rely on the lawyer provided by the human rights clinic; the unionized employee expects to be represented by the union, but that does not occur and the employee must find other options to pursue the unfair representation complaint. The employer is this case hopes to get help from a lawyer just because of a family relationship. The young person is dependent on the arresting officer fulfilling their duty of advising her that she has the right to counsel under section 25 of the Youth Criminal Justice Act (“YCJA”), but given the relationship with her family, may not be able to retain counsel.
If people interacting with the law need a lawyer and can’t just retain one, either because they do not know any or cannot afford one, there are ways they can find names, lawyers or other assistance. Law societies and other organizations have referral services (see, for example, Legal Info of Nova Scotia, which like many similar organizations and law societies, has a referral service and also includes a list of other ways to find a lawyer [for instance, the Indigenous man in example 3 might be able to find some assistance at the Mi’kmaq Legal Support Network]). In the case of the youth in example 3, the judge hearing her case will ensure she is represented under section 25 of the YCJA.
In the family law example, a woman in Ontario who has been abused can find help through Legal Aid Ontario or clinics established specifically to assist abused women, such as Luke’s Place, which provides access to free legal advice and court worker support (attending meetings with a lawyer, for instance). Calgary Legal Guidance in Alberta provides services to people who have been abused, including lawyers’ assistance. The Ministry of the Attorney General in Ontario provides information about organizations where people can obtain legal help. Legal clinics in Ontario also are staffed by lawyers who can help people in various areas of law; student legal clinics can provide assistance in certain areas, supervised by lawyers.
The unrepresented litigant in the family law example may be able to obtain some information about how to deal with the various issues arising in her particular case; the NSRLP (National Self-Represented Litigants Project) website, for example, includes a list of professionals who have indicated they are prepared to assist litigants who do not have a lawyer by coaching, for instance (see here). A number of organizations provide pro bono services, although not always in family law (Pro Bono Ontario, for example, provides assistance in several areas, but not in family law, through a hotline as a result of Covid-19). Or the unrepresented litigant may obtain partial legal advice through unbundled legal services, receiving as Ontario’s Family Law Limited Services website says, a lawyer’s “help” with “some parts of your case or from time to time”.
In British Columbia, Justice Access Centres may be able to assist the non-unionized employee with their employment problem. In British Columbia, the Human Rights Tribunal lists organizations that might be able to help the non-unionized employee, if they are able to fit into the subject matter or specialized client parameters of the services offered by many of these organizations.
Youth may find assistance through some of the same sites as I’ve already referred to, but the youth in example 2 may need particular help. For example, Justice for Children and Youth in Ontario, which is part of the community legal clinic system, includes information about the legal rights of young people across a wide range of contexts, including criminal law (see here) and including limited legal assistance (see here); it also explains how a young person might find a lawyer, as well as very detailed and helpful information about issues relating to hiring a lawyer or having a judge appoint a lawyer under section 25(4) to (6) of the federal Youth Criminal Justice Act (see here).
Ways in which people are able to find assistance to navigate the legal system are myriad and diverse, and they vary from province to province. The sources of help I’ve given above related to the three examples of legal matters, each of which may be relatively straightforward or easily more complicated, do not, of course, exhaust the help that the subjects of those examples might be able to find. And those sources barely scratch the surface of the many sources of help related to different stages of the legal process, some of which are relevant to specific types of disputes and others of which may be available for many different types of disputes. Despite what may seem to be the plethora of helpful sources (an abundance in some areas, with some overlap in kinds of assistance they provide), there may be a dearth of assistance in other areas. It may be difficult for someone to find their way through the maze of sources: they need to be able to identify their problem, they must be able to wade through information and figure out what is most useful for them, need to know how comfortable they might be in handling some of the tasks themselves — and being able to answer those questions is just the beginning of their journey. Some of the sources will be able to help them answer those questions, others are actually more helpful further along.
QUESTIONS ONE MIGHT ASK
• What is needed for the user to know how to obtain information they require to determine if they have a legal case?
• Is the user able to understand the information they find? Is there a way to get help?
• Can the user afford a lawyer or know how to get legal help? Alternatives to a lawyer?
• What is needed for the user to fill out necessary forms (see e.g., Steps to Justice)
• What help might the user need if they are primarily an ESL speaker?
• Does the user have the technological tools or skills to obtain information, fill out forms, communicate with a lawyer or other advisor?
• How well can the user navigate the rest of the legal process? How well can they determine when they need help and how well can they follow instructions when an advisor gives them tasks to carry out on their own?
• What other responsibilities does the user have that must be juggled with legal matter?
Looked at from the perspective of the legal system, we might shift the phrasing somewhat:
• To what extent does the legal system provide explanations in plain language?
• In increasing the use of technology, to what extent have different users’ needs been taken into account and provided for? And has it ensured that bias and other problems have not been incorporated into the system (see the recent Law Commission of Ontario summary of a conference on AI in the American criminal system, specifically pretrial risk assessments here)?
• How well does it provide cues for navigating the system, especially if there are new developments or a need to change course?
• What tools or assistance does the system provide for determining when negotiation/mediation/settlement efforts are appropriate, whether users have the necessary skills to participate, what the hazards are and when they aren’t working?
These questions and others give a sense of the objectives universal design must meet. What is the potential for universal design to affect the provision of services? Many of the services already provided might well be consistent with the principles universal design, others may not be and some may simply require some adjustment. And a universal design analysis might well reveal or suggest other services that would be helpful.
Two points to recall:
using universal design is a process, not the end result;
the idea is to provide services that address the needs of as many people as possible with inbuilt capacity for specialized adaptation when required.
PRINCIPLES OF UNIVERSAL DESIGN AND THEIR APPLICATION
The seven principles of universal design, developed by the Center for Universal Design at the University of North Carolina (perhaps it does not bode well that the Center is currently out of commission because of funding challenges [see here]) provide guidance for seeing how universal design might apply to the legal system; they have been adopted by other organizations, such as the Centre for Excellence in Universal Design (“CEUT”) on which I rely for their articulation. The principles are as follows:
1. Equitable Use;
2. Flexibility in Use;
3. Simple and Intuitive Use;
4. Perceptible Information;
5. Tolerance for Error;
6. Low Physical Effort; and
7. Size and Space for Approach and Use.
Here’s a bit more explanation of the principles, relying on the description in how they were originally described and using Jolly-Ryan’s application to the law school context as ways of making them more concrete before I apply them to the legal system more generally.
Equitable Use: while described or defined in its original context as being useful and “marketable to people with diverse abilities”, Jolly-Ryan explains this principle as ensuring that educational mechanisms or instruction make “the most of all students’ diverse ways of learning and abilities” (Jolly-Ryan, p.1421, citations omitted). She relies on technology (such as websites and videos) that can be adapted by users by increasing the font, for example, and can be accessed whenever convenient; but larger font can also be employed on printed handouts (Jolly-Ryan, pp.1423-1424, citations omitted).
A critical point here: in the larger world, even though barriers to the use of technology may be decreasing, barriers do remain (lack of broadband, individual lack of access to a computer, low computer literacy, disabilities that make using a computer difficult or impossible, for example) that need to be taken into account when considering how the use of technology, in many ways very helpful to many people, complies with universal design. This is particularly true when governments and other institutions are racing to digitalize the legal system experience.
In the larger legal system we should think of “equitable use” as designing the tools of the legal system in ways that provide the greatest access to the greatest number of people, taking into account from inception users range of characteristics.
Flexibility in Use: The design incorporates the widest range of characteristics users bring to the legal system. In the educational context, Jolly-Ryan again relies on technology for flexibility in use, including the use of video with captions for the hearing impaired; students who have trouble taking notes or ESL students can slow the video down or rewind it (Jolly-Ryan, p.1424, citation omitted).
In the legal system, flexibility in use means that the elements of the legal system are amenable to access by users based on their needs/characteristics rather than developed for a standard use.
Simple and Intuitive Use: The design makes it easy for people with different characteristics to understand it and to come back to it subsequently. In the law school context, Jolly-Ryan suggests quizzes that “require answers to one question before moving on to the next question” can aid in achieving these goals in the classroom (Jolly-Ryan, p.1426).
In the legal system, simple and intuitive use requires the system to be designed to enable even those with least experience accessing the system and with characteristics least conforming to “the mainstream” to access the system; the system should “make sense” to a variety of users.
Perceptible Information: Information must be accessible to the user regardless of the user’s “sensory abilities” or “ambient conditions”. As Jolly-Ryan points out in “Bridging the Law School Learning Gap”, in the educational context, students will be unable to concentrate for a number of different reasons, as well as have access to information interrupted because of hearing impairments or learning disabilities, for example, among other reasons. Just as law students, users of the system “will go through periods when they are anxiety prone, or are unable to fully concentrate on complex material for a variety of reasons, including lack of sleep, or personal problems” (Jolly-Ryan, p.1427). The provision of information needs to take this into account by, for instance, providing verbal cues for visual materials (Jolly-Ryan, p.1428).
In the legal system, the provision of information occurs not only once at the beginning of the legal process and then throughout, but before the user initiates the legal process when the user is trying to decide whether they have a legal problem or where to go for help.
Tolerance for Error: The design not only seeks to minimize problems, but also to minimize the negative consequences of inadvertent errors. In the educational context, Jolly-Ryan provides the example of “[s]oftware programs that provide guidance when the student makes an inappropriate selection….” (Jolly-Ryan, p.1428).
In the legal system, the opportunities to make an error or take the wrong path occur, especially, but not only for unrepresented litigants; opportunities to correct should be included in the system to the extent possible.
Low Physical Effort: This principle should include low mental and psychological effort. Again, Jolly-Ryan turns to technology to meet this principle, suggesting class materials “can be used efficiently, comfortably, and with minimum fatigue when placed on the computer and made available to all students” and can be adapted to the needs of the student (Jolly-Ryan, p.1429).
In the legal system, although certain processes can be physically tiring, they are more likely to be cognitively and emotionally challenging.
Size and Space for Approach and Use: Although this may be primarily related to issues related to disability, it can also be said to apply to matters such as personal space. Jolly-Ryan referred to study tables in libraries rather than individual carrels, since tables are more flexible (this could also apply to flexibility in use) (Jolly-Ryan, p.1429).
In the legal system, spaces that have been adapted for use by persons with disabilities illustrate this principle, but there may be other ways in which it can be considered.
One more introductory point: as I stated earlier, there have been over the last years many changes to the legal system intended to make it easier for users to access it. Efforts to satisfy disability requirements have meant easier physical access. Mental health courts have encouraged a better recognition of the role mental health plays in criminal cases. Structural changes have acknowledged distinct Indigenous practices. A number of information sites have sprung up to guide users through the system. And on and on. These developments would be taken into account in considering whether universal design can make the legal/justice system more accessible than it is: some of them may provide answers to the questions I ask or others might become part of the design process, perhaps in their current form, perhaps slightly modified, perhaps integrated into a broader scheme that responds to the needs of other users.
A reminder: universal design may be applied to current features of the legal system or to new features; when applied to new features, it should inform the design of the feature from inception. As I’ve said and is obvious, it is impossible to consider all aspects of the system, such as all the stages through which a lawsuit will pass, or all the options for resolution, here; I use aspects of the system as illustrations of how universal design might apply. Some of the suggestions here already exist, although not everywhere; some do not and may not always be feasible. My objective, premised on the seven principles, is to indicate some initial thoughts about how universal design might apply in practice, possibly leading to a broader conversation not only about other aspects of the legal system but also other, more creative and effective ways than suggested here, of how to apply universal design.
Example: How are all users able to access the information they need to use the system? To the extent possible, the design should be the same for all users; this means, the feature should be designed so that all users are able to access and employ it. For example, the provision of information should be written in such a way that all users are able to understand it and should be formatted to make it easy for all users to absorb. Most information is available today online: it can allow the provision of basic, easy to understand information with links to increasingly more complicated information, with opportunities for clarification included throughout through questions incorporated into the information, online chat capacity or something similar. Translation must be available.
However, not everyone will be able to access online information, although the numbers should be minimized by how the online information is designed (obviously, lack of a computer at a minimum means online information is not available, but the impact of low computer literacy, for example, can be reduced to some extent by the design’s opportunities for assistance). Information must also be provided in written form (again, in easy to understand language) and in person. Written information must provide ways the reader is able to access help in person. Providing at least basic information in pamphlets or on single sheets in places users might access in the course of their ordinary lives is one way to provide some degree of equivalency with the online information.
Example: How can all users make equitable use of dispute resolution methods and facilities? As far as hearings are concerned, I’m assuming that there will be at least some return to physical courthouses and other places where disputes are resolved, post-pandemic. Courthouses, for example, should be designed to allow people to easily identify where they need to be, through not only verbal signs, but colours and graphics, and positioning of the same. While this aspect of the design is not necessary for many people, it will assist others in feeling less of an outsider to the system and more confident of their place and perhaps help others save time they would otherwise spend finding their way through an unfamiliar building. Increasingly, there are ways other than formal trials to resolve disputes and these should be increased as appropriate, but not at the expense of fairness for any user. The system should incorporate explanations about what will happen in the dispute resolution process; preferably, this could be done by people who are available to everyone with business on any given day, allowing for (general) questions and answers. It is important that decision-makers also have sufficient information about the user. Algorithms must be free of bias.
The legal system already recognizes different customs and beliefs, and specific areas of concern, in how it is structured. Thus there are mental health courts, domestic violence courts and courts designed to recognize Indigenous customs (on the latter, see a description of courts in Nunavut here). Universal design would see a court system that did not treat these systems as accommodations, but as an integral part of a system that included the capacity for specialization.
Example: What is needed to make sure all users understand the outcome of disputes in which they have been involved? Despite complaints that decisions are often too opaque, decisions often have to be more complicated and “legal” than people who are not legally trained can always fully understand. This does not mean that the decisions cannot be translated into a more plain language version, as the Supreme Court of Canada is doing (see Cases in Brief). (I note a quick look at these suggest different people appear to have a different notion of what “plain language” means.) Most decision writers could include a brief summary of the issues and conclusions in the decision itself, helping not only the parties themselves, especially those who were not legally represented, but others understand why the case ended up as it did. While these would be online, the same problem of lack of access would arise; at least, the parties should be able to obtain a copy of the summary to provide somewhat of an equivalency.
Flexibility in Use
Example: How can all users be assisted to select the appropriate method of use for them? Returning to information as an example, users must have a choice about how they obtain information that will be understandable and helpful to them. Factors relevant to this include the method of delivery (online or in person, for example), basic or detailed (or basic with increasing detail as the user understands), among others.
Not all users will have a choice about how they will be involved in the system, of course. Someone charged with a criminal offence, as will someone against whom a lawsuit is filed, will have limited options, but may have some. However, to the extent the nature of the dispute allows choice, a precondition of making a choice is to have sufficient information. Users must be able to appreciate the different stages of the system and the ramifications of taking certain courses of action; some users will be familiar with this because they are frequent users of the system, but others must have access to the information that allows them to choose.
Example: How can users access the information provided to allow choice is provided at the pace meaningful to them to maximize their understanding the information correctly and allowing them to apply it correctly? When a user is able to access online information, they should be able to move through the information as quickly or slowly as they find helpful. It may also be useful at intervals to ask the user online questions and not allow the user to go further until they are able to answer them. If the user is in an in-person conversation, the individual providing the information may from time to time ask the user to repeat the information in their own words or answer a question related to the information. This could be the standard arrangement; for those users whose facility with the information is high, the process will take place quickly, but may still be helpful in ensuring that the users are not making assumptions about their knowledge. Alternatively, users may choose which path they prefer, one that is interactive or one that is not.
Simple and Intuitive Use
Example: How can users with different needs and backgrounds access the different elements of the system effectively? I have already referred to some of the issues arising here, such as “eliminat[ing] unnecessary complexity” or providing feedback as a user moves through the system, whether obtaining information or later stages. For example, it is now possible to complete forms online; ensuring understanding of the forms and whether the information provided is what the user intended can be accomplished by intermittent questioning. The preparation of documents, especially for users lacking representation, is improved through simple language, questioning of information provided, where possible, and similar techniques; this can also help users unfamiliar with the system understand documents prepared on their behalf by representatives.
Formatting is relevant here, as well; the most important information should be provided at the beginning and subsequent information should be linked to it. Again, as already mentioned, information, description of processes and so forth should be provided so that those who are not familiar with the system or are not English-speakers (or French-speakers) are able to understand and provide what is required — or obtain assistance, if necessary.
Example: How can users find information as easily as possible? Different users will respond to how information is presented differently; a combination of pictorial and verbal representations and where appropriate, colour differentiations, will help users with different learning skills understand the same information or direction. Information that is “essential” should be differentiated through colour, fonts, size or placement. (I’ve referred to “colours” several times; those who select colours need to be cognizant of their impact of neurodivergent users.)
Legal service providers will need to consider their clients’ characteristics: how familiar are they with the system; how easily do they understand information, advice, documents and so on (repeating information, asking the client to repeat it, helps not only inexperienced clients, but also those who have had more experience with the system); how competent are they with a computer; what other obligations make it difficult for them to meet? Do clients using unbundled services appreciate the limits of the advice? Have they been able to determine when they need help at a point that is helpful for their case?
Are there other issues, not technically part of the dispute, but having an impact, such as the experience of domestic violence, that are affecting how they make decisions or respond to advice? The changes to the Divorce Act require family lawyers to assess whether there has been domestic violence in the family in relation to parenting and Justice Canada has released a draft resource for comment: “Justice Canada’s suggested approach for legal advisers: Having an initial discussion about family violence; Exploring immediate risks and safety concerns; Learning more about the family violence to determine what to recommend to the client; and Promoting safety throughout the case.” (See Bernise Carolino, “Justice Canada to launch resource for discussing family violence later this year” (Canadian Lawyer, March 18, 2021).
Legal service providers and others in the legal system might benefit from the “core principles of instruction that would be accessible to the widest range of learners” Meredith George and Wendy Newby quote from The Center for Applied Special Technology (CAST) adapted to refer to the legal system:
• Multiple means of representation to give learners various ways of acquiring information and knowledge,
• Multiple means of action and expression to provide learners alternatives for demonstrating what they know, and
• Multiple means of engagement to tap into learners’ interests, challenge them appropriately, and motivate them to learn. (“Inclusive Instruction: Blurring Diversity and Disability in Law School Classrooms through Universal Design“, p.494)
Reframing these “core principles of instruction” as “core principles of the legal system”, they might look something as follows:
• Multiple means of access and platforms to give users various ways of acquiring information and knowledge,
• Multiple means of action and expression to provide users alternatives for demonstrating what they know, and
• Multiple means of engagement to tap into users’ needs, challenge them appropriately, and motivate them to take ownership of their case.
Tolerance for Error
Example: How can users lacking familiarity with the system or lacking skills needed for smooth movement through the system be helped? As users work online through information and try to apply it to their own situations or answer questions on a form, for example, the program can pause and check that the answer they have given (for instance) is the answer they want to give (lessons here from the messages the computer sends to check that a command is actually intended). A similar process can be used for in person exchanges. The system can also identify areas that are particularly important because they have repercussions for later questions or the results once the task is completed.
Low Physical [and Emotional] Effort
Example: How can the effort required by the user be reduced to allow them to participate? This guideline has particular resonance for persons with certain disabilities (minimizing repetitive actions, for instance). However, it can be helpful for other users, especially those for whom the system is unfamiliar or whose characteristics make participation particularly onerous. Although repeated questioning by police or others is designed to ensure that the individual being questioned is telling the truth or to catch them in a contradiction, there are situations in which users who have to keep repeating their story to different people lose faith in the system. Repeated requirements to tell the same story can be particularly difficult for victims of sexual assault or other traumatic experiences, people for whom English is a second language or whose ability to articulate their experience is low; the questioner can assist with prompts, not to replace the user’s own experience, but to provide ways for the user to explain what they have to say. In a courtroom, this may require consideration of current methods of questioning, at least to a point.
Size and Space for Approach and Use
Example: How can the system be reconfigured to make it easier for users to use space effectively and comfortably? This last guideline is also particularly relevant for persons with disabilities and much has been done already to provide space for users using wheelchairs or extra seating for personal assistants, or recognizing that some people require more frequent breaks during a hearing, for example. Again, the point here is not to “accommodate” persons with disabilities or others who may need help in finding their way, but to design the system so that these requirements are an integral part of the design, as well as ensuring that specialization can occur when necessary.
Whatever methods are used to make the legal system amenable to all users through the application of universal design should be understood as enhancing inclusivity on a wide range of grounds without diminishing the system for others. As CEUD explains,
No person operates with full capability for every activity for the duration of his or her lifetime. Accessibility or usability can be affected by, for example, a medical injury or condition (temporary, long-term or permanent), an unfamiliarity with a product or environment, a lack of understanding (e.g. In a foreign country), a physical attribute (e.g. Height [sic], size), and so on.
A Universal Design approach aims to provide a design that takes into account these physical, behavioural, and other, factors. It appreciates that at some point, during some activity, every person experiences some form of limitation in ability. However, it should be added that a hypothetical person who does not experience a disability (in the widest definition of the word) during his or her lifetime will also benefit, at the very least from the positive user experience of simple and intuitive design. (See here)
Furthermore, “The aim is to provide the same (or equivalent) experiences, activities and services to everyone. It is accepted that these may have to be provided through slightly different routes or interfaces, but designers should strive to create a design that does not exclude or segregate.”
Adapting George and Newby’s concise statement about the purpose of universal design in education provides a clear statement of where the focus of universal design of the legal system lies: The process is to find a way to deliver legal services that adapt to the differences among users rather than requiring users (“who may have limited adaptive capacities”) to adapt to standard and traditional ways of delivering justice (George and Newby, p.497). As Bradley Regehr and Vivene Salmon note in “Modernizing the justice system, sustainably“, “many people don’t have the literacy skills to use all electronic tools. Modernizing the justice system must account for age, literacy, income level, mobility and a host of other issues. One size does not fit all, but the system needs to fit everyone.” This might be contrasted with one UK commentator’s expectation about the use of technology that while there will remain a digital divide, “the numbers of those excluded [will] reduce — particularly as government services generally go ‘digital first’ and people are required to develop digital competence to obtain a whole range of circumstances” (see here, emphasis added).
Efforts to modify the existing system or to develop new approaches resulting from the application of the principles of universal design require coordination among relevant justice partners and representatives of users. As always, “[e]ffective communication among all stakeholders and jurisdictions is essential share and maximize best practices” (see No Turning Back: CBA Task Force Report on Justice Issues Arising from Covid-19 (February 17, 2021), p.7).
There are many features of the legal system that appear to meet the principles of universal design or would require adjustments to do so. However, often this apparent application of the principles has occurred by happenstance (no less useful in themselves for that). To be most useful, applying the principles requires a deliberate effort across the system or, more realistically, changes to existing features or the creation of new features should be assessed and developed in accordance with the universal design principles to the extent possible.