access to justice

The Pandemic, Technology, and Family Law – A Reflection on the Changes.

From my time at a family law boutique firm, I learned that legal processes can cost individuals a lot of time and money.  Access to justice is a problem across all areas of law, but the issue is particularly apparent in family law. The era of the pandemic, while a horrible time for many, was helpful in terms of access to justice in the field of family law. More and more services are offered online, such as motion hearings, ‘To Be Spoken To’ court, mediations, and arbitrations. This saves the already financially struggling client from having to take a day off from work to appear in court. These technological changes also address the root issues faced by clients who need to commute long distances to arrive for their court appearance (and with these gas prices, we all need a bit of help!) More importantly, virtual appearances save the client the burden of having to pay exponential legal fees for their lawyer’s transportation costs, and idle time spent waiting to be heard by the Judge.

Also, the push for more online services has led to a decrease in cost for many services including process servers, printing, in-person filing expenses, and overall lawyer time. Both lawyers and clients no longer feel the need to have in-person meetings. Instead, most have now transitioned to phone calls and Zoom meetings. This shift has naturally made clients more aware of the time they are spending with the lawyer and thus, has pushed both parties to get straight to the point.

Another way the pandemic era has aided family law, with its rise of integrating technology in the legal field, is by equipping individuals with the tools to access the self-representation route. During my time at the boutique firm, I had the opportunity to talk to lawyers about their experience pre- and post-pandemic, but more importantly, I was able to talk to a few clients, potential clients, and people who were calling to inquire about consultations and fees. From those interactions I was able to hear about how pre-pandemic, when a client felt that the legal fees were racking up beyond the point of affordability, they felt trapped and hopeless, thinking that this meant their battle for custody, support, parenting time, or other legal issues, was over. Now, post-pandemic, with the rise of technology and online services, people who feel they can no longer afford a lawyer, while they do still feel a level of hopelessness (especially if their previous spouse/partner continues to have legal representation), are overall less intimidated by the self-representation route.

The rise of technology in the family law field has not been all sunshine and rainbows, however. A disadvantage is perhaps the plethora of online resources, guides, aids, questionnaires, etc. While the move over to using more technology has aided many elements of access to justice in the area of family law, it has also indirectly overwhelmed the field and inevitably pushed people, who were hoping to save money, back to feeling like they need to hire a lawyer. While technological advancements in family law have promised a more accessible route to justice, the best resources for a particular legal issue need to be streamlined to avoid overwhelming the self-represented litigant, or anyone who is struggling financially and hoping to enter the self-representation path.

Indigenous Digital Equity: The barriers Indigenous communities face accessing internet

I spent most of my 2L year back on my home reserve in Southern Alberta. It’s about a 45-minute drive to Lethbridge. My internet connection was a challenge when trying to listen to lectures or have a strong connection for a zoom call. Internet connectivity for Indigenous Peoples in Canada has long been difficult to implement due to many environmental and socio-economic factors such as remoteness of communities, difficulty gaining first-mile access, unreliable networks, slow speeds, expensive equipment, and high data costs.

Compared to the other infrastructure problems faced by Indigenous communities, the internet might not seem like a big problem. But COVID-19 has shown that when people don’t have equal access, they lose the same opportunities. Remote learning is now crucial to getting a quality education, but poor internet connections or a lack of a connection in the first place are holding many Indigenous children behind their peers.

A lack of internet also affects those looking for work. COVID-19 has led to many layoffs, and the internet had become one of the only reliable sources to find emplpoyment. This lack of resources is one of the reasons why unemployment is already higher in Indigenous communities than in the population at large. Even the transition to working from home means a greater need for high-speed internet, but this poses another disadvantage for rural homes that cannot access a connection to telecommute. The province says 61 percent of B.C. Indigenous communities lack access that meets the standard, although the council notes that number may count communities with just one broadband access point, meaning there is one place in town with adequate Internet, but it’s not in every home, school, or office. [1]

The geography of remote and northern Canadian communities implies transportation access problems, long cable builds, and harsh climate. Building sustainable broadband infrastructure capable of telehealth delivery in northern and remote Indigenous communities is and will continue to be costly. [2] The economic situation combined with the high cost of connectivity suggests that that many remote and northern Indigenous communities and community members may be struggling to pay the high costs of using digital technologies. At the same time, Indigenous community members and Indigenous communities have demonstrated that they are eager users of digital technologies and they will adopt them when they are affordable, reliable, and meet their needs. [3]

The UN has declared access to the internet a human right. This declaration is formed on the basis that having access to the internet means being able to exercise other fundamental human rights and freedoms (e.g. right to freedom of speech). For Indigenous people, the internet is a tool for cultural survival, acting as a hub for Indigenous languages and traditional stories. Without leaving their community, Indigenous youth and adults are able to learn skills, meet Indigenous role models, obtain a degree/diploma, access healthcare, and share their stories with the world. [4]

The inclusion of Indigenous voices on important issues can’t be accomplished if Canada doesn’t work to close the connectivity gap. The plans must be done in coordination with Indigenous governments, letting them lead any project or policy that may affect their communities or land. Without access to broadband, Indigenous peoples will continue to be left behind.

[1] Katie Hyslop, “Closing BC’s Indigenous Internet Gap” The Tyee (12 December 2019) online: https://thetyee.ca/News/2019/12/12/Closing-BC-Indigenous-Internet-Gap/

[2] O’Donnell, Susan “Digital technology adoption in remote and northern Indigenous communities in Canada.” Canadian Sociological Association 2016 Annual Conference. University of Calgary, Calgary, Canada. 2016.

[3] ibid 

[4] Emma Greenfield, “Digital Equity for Indigenous Communities” Social Connectedness (7 July 2020) online: https://www.socialconnectedness.org/digital-equity-for-indigenous-communities/

Blockchain and the Law: Opportunity comes for those who are prepared.

Blockchain and the Law: Opportunity comes for those who are prepared

by Ashwin Gupta

In 2014 I remember agonizing over investing in bitcoin or trying my luck in the stock market. I invested in the stock market because, at the time, traditional wisdom dictated that it was a “bubble” and I was unprepared to learn the mechanics.  To offer some perspective, bitcoin was valued at $770 US in 2014, and its current price is over $29 000. Over the years, I watched some of my peers enriched as bitcoin increased in value exponentially. This choice taught me the value of being prepared in an evolving digital future (and that traditional wisdom can be unreliable).

The legal profession has historically resisted digital implementation.[1][2] But as the legal system is forced to adopt a digital future by the pandemic[3] and technological advances,[4] professionals who are prepared for these changes will have the most opportunity to set the standards for this adoption. The standards set this juncture will impact countless aspects of the legal system like access to justice and legal procedure. As an incoming law school graduate, my interest is no longer merely financial. I see opportunities in improving our legal system through this adoption —assuming I’m prepared.

Preparation

In ushering in the digital future, it’s imperative that legal professionals familiarize themselves with digital tools. I foresee three tools that will drive changes in the legal system:  1. Blockchain 2. Artificial intelligence and 3. Software development. Since this blog isn’t going down anytime soon, I predict that in 20 years or less some level of familiarity will be required with each of these tools for lawyers. At least, in the same way that lawyers are expected to be familiar with the interface of E-mail, but most do not understand what an e-mail provider like Gmail does behind the scenes to keep it all running. I’ll explain why I think so with regards to Blockchain, and I’ll justify my prediction for AI and Software development in the comments to keep the post short.

Blockchain

A blockchain is a distributed database that is shared among the nodes of a computer network.[5] Nodes could refer to multiple systems across the world or a localized system depending on the structure. But essentially, it’s a digital cloud without a centralized storage. The main advantages of having a blockchain to store data is that its immutable and transparent meaning that no one can tamper with the data without leaving a trail and verifying their right to access. Since the data is stored on nodes instead of a centralized system, it’s secured from cyber-attacks. Decentralized security has become an invaluable feature due to a recent increase in cyberattacks.[6] Blockchain could have countless applications to the law, which takes advantage of these features. A few obvious applications which come to mind are: blockchain land title registration, smart contract storage, tokenization, and chain of custody tracking.

Land title registration is a fitting use for blockchain. Currently a property lawyer is tasked with sourcing and verifying all the transfers of title leading up to a novel transfer to verify the integrity of the novel property (liens, covenants, easements, fraudulent transfers etc.). A blockchain storage utilized by the Land Title Office would be able to build those requirements into the system, eliminating needs for lawyers to go through the verification entirely. Although there are significant challenges here, like labor required to digitize those documents in a manner appropriate. If done correctly, this would significantly decrease legal costs for property buyers.

Smart contracts automate the execution of an agreement when all predetermined conditions are met, so that all parties can be certain of the outcome without any intermediary’s involvement or time loss. A corollary to the utility of smart contracts is e-signing. Ethereum currently runs a e-signing feature that costs less than that of DocuSign, and the signatures are independent of the contract being signed which guarantees that all parties receive and sign the same document regardless of timeframe.[7] The smart contract feature has tremendous utility in supply chain, as orders require all parties to be on the same page and typically hinge on conditions that can be predefined for a smart contract purpose. Blockchain based contracts have baked in compliance and there’s no room for misinterpretation. Use of smart contracts reduces legal disputes with vendors, freeing up legal resources for other matters. Use of e-signing reduces costs and frees up time for lawyers and their clients. [8]

Tokenization is fascinating and has the potential to change the landscape of property rights. It allows us to take real world or digital products and place their rights in a digital token. These tokens are traded via smart contracts and are stored on the blockchain. This allows token holders to liquidate and invest in segments of assets otherwise indivisible such as artifacts, artworks, collectables like bottles of wine and many others. This includes many other real and digital world products in the investing market.[9] For perspective, the court could’ve tokenized and divided that infamous Popov v Hayashi[10] game ball instead of forcing a sale. These tokens are already being used for a wide variety of purposes and I’d suggest property lawyers should get very comfortable with how these Non-Fungible Tokens (NFTs) work. [11]

These are just some of the obvious use cases of blockchain in law, but it’s my logical inference that integration and day to day use of these utilities will require local legal professionals (judges too) with some level of blockchain based education. Osgoode hall has a certificate program intended for lawyers called “Blockchain Law”, University of Windsor & UofT offer blockchain courses, and most critically University of Ottawa has a blockchain legal lab (with a twitter account). Passionate students that make good use of these opportunities will be prepared to seize any blockchain opportunities throughout their careers and could help shape a transforming legal system.

Citations

  1. “Impeding Technology – Legal Culture and Technological Resistance” (2020), online: https://theitcountreyjustice.wordpress.com/2020/06/28/impeding-technology-legal-culture-and-technological-resistance/
  2. Ben Mears “Legal Innovation: 5 Experts Predict Future Challenges and Opportunities” (2020), online: https://www.collectivecampus.io/blog/legal-innovation-5-experts-predict-future-challenges-and-opportunities
  3. Clive Rich The Future of Law: Rise of the Digital Lawyer (2021), online: https://www.law.com/international-edition/2021/05/27/the-future-of-law-rise-of-the-digital-lawyer/?slreturn=20211019231524
  4. Vivek Wadhwa, “Laws and Ethics Can’t Keep Pace with Technology” (2014), online: https://www.technologyreview.com/2014/04/15/172377/laws-and-ethics-cant-keep-pace-with-technology/
  5. Luke Conway, “Blockchain Explained” (2021) online: https://www.investopedia.com/terms/b/blockchain.asp
  6. Mirdula Shan, “Blockchain & Healthcare: How CyberSecurity Saves Lives” (2021), online: https://harvardtechnologyreview.com/2021/08/23/blockchain-healthcare-how-cybersecurity-saves-lives/
  7. “Blockchain in the Legal Industry”, online: https://consensys.net/blockchain-use-cases/law/
  8. “What are Smart Contracts on Blockchain”, online: https://www.ibm.com/topics/smart-contracts#:~:text=Smart%20contracts%20are%20simply%20programs,intermediary’s%20involvement%20or%20time%20loss.
  9. Riddle & Cole “TOKENIZATION 101: HOW TOKENIZATION OF PHYSICAL ASSETS ENABLES THE ECONOMY OF EVERYTHING”, online https://www.riddleandcode.com/tokenization-101
  10. https://www.lexisnexis.com/community/casebrief/p/casebrief-popov-v-hayashi

12.Supra note 9.

[1] “Impeding Technology – Legal Culture and Technological Resistance” (2020), online:  https://theitcountreyjustice.wordpress.com/2020/06/28/impeding-technology-legal-culture-and-technological-resistance/

[2]Ben Mears “Legal Innovation: 5 Experts Predict Future Challenges and Opportunities” (2020), online: https://www.collectivecampus.io/blog/legal-innovation-5-experts-predict-future-challenges-and-opportunities

[3] Clive Rich The Future of Law: Rise of the Digital Lawyer (2021), online: https://www.law.com/international-edition/2021/05/27/the-future-of-law-rise-of-the-digital-lawyer/?slreturn=20211019231524

[4] Vivek Wadhwa, “Laws and Ethics Can’t Keep Pace with Technology” (2014), online: https://www.technologyreview.com/2014/04/15/172377/laws-and-ethics-cant-keep-pace-with-technology/

[5] Luke Conway, “Blockchain Explained” (2021) online: https://www.investopedia.com/terms/b/blockchain.asp

[6] Mirdula Shan, “Blockchain & Healthcare: How CyberSecurity Saves Lives” (2021), online: https://harvardtechnologyreview.com/2021/08/23/blockchain-healthcare-how-cybersecurity-saves-lives/

[7] “Blockchain in the Legal Industry”, online: https://consensys.net/blockchain-use-cases/law/

[8] “What are Smart Contracts on Blockchain”, online: https://www.ibm.com/topics/smart-contracts#:~:text=Smart%20contracts%20are%20simply%20programs,intermediary’s%20involvement%20or%20time%20loss.

[9] Riddle & Cole “TOKENIZATION 101: HOW TOKENIZATION OF PHYSICAL ASSETS ENABLES THE ECONOMY OF EVERYTHING”, online https://www.riddleandcode.com/tokenization-101

[10] https://www.lexisnexis.com/community/casebrief/p/casebrief-popov-v-hayashi

[11] Supra note 9.

Technology as a Barrier to Justice: Cautioning Legal Tech Designers

Harjote Sumbal

Technology alone is not the complete solution to Canada’s access to justice problems. Usage of technology can encounter resistance, the measures may ultimately be unsuccessful, and the approach can actually result in the creation of new barriers to access. Professors Roger Smith and Alan Paterson identify “digital exclusion” with its three “digital divides” as a good place to start in assessing challenges of technological reform: (1) physical access to the relevant technology, (2) the technical ability to use the relevant technology, and (3) the cultural inclination to use the relevant technology.[1] Designers of legal tech would do well to anticipate the barriers to justice their applications may create so that they can address them before they manifest. Addressing the second divide – technology itself as a barrier – should drive legal app design to ensure implementation of technology does not widen the access to justice gap further.

A successful application is driven by user demand, which in turn requires trust. Technology can indirectly risk undercutting the administration of justice and compromise user trust. Mistrust of the legal system is a noted barrier to access,[2] so the security of technological processes is essential to make user adoption a possibility. For example, Abedi, Zeleznikow, and Brien have identified three core “facets of security” Online Dispute Resolution (ODR) systems must ensure: (1) information security and confidentiality, (2) privacy of the parties involved, and (3) authentication of parties in transactions and communications.[3] If technological reforms are implemented without due consideration of security issues, legal tech may serve as an additional barrier for wary users rather than increasing access to justice.

Digital divides in accessing technology can serve as significant barriers to access. While cultural resistance speaks to the acceptance of technology by the existing legal industry structures, physical access and technical ability are both barriers for potential users that may actually want to engage with legal technology. While these digital divides can affect any given individual, their impact is likely to most strongly affect vulnerable groups like lower socioeconomic communities, elderly people, Indigenous peoples, and those with language barriers, whether they are refugees, immigrants, or citizens.[4]

In some cases, it is possible to address these barriers within the technological tool’s infrastructure. For example, the Civil Resolution Tribunal (CRT) attempts to address potential language barriers by providing information on the CRT, its process, limitation periods, and available help resources in multiple languages.[5] It also provides additional resources for Indigenous users and directs those without computers to ServiceBC locations or paper forms.[6] The CRT’s recognition of potential technological barriers is an important start. However, not all technology platforms are constructed in the same manner, nor are they as comprehensive as ODR platforms tend to be. Justice apps are more individualized in their scope and user design. For example, the MyLawBC website is designed, amongst other capabilities, to allow users to construct their wills, but offer none of the language, Indigenous, or general helper resources of the CRT described above.

The need for accessibility tailored to vulnerable populations is apparent. A 2008 Law Foundation of Ontario report stated those in vulnerable populations “need to receive direct services rather than rely on self-help”, as legal trouble often piles on to the barriers they already face.[7] As self-service is one of the key features of user-targeted legal technology to save paying legal fees, tools that are too daunting to use are essentially useless. Without specific consideration of vulnerable populations and their userability, technological reforms risk creating a further divide between users and access to justice.

Technological tools like ODR and justice applications have great potential. However, the design and conception of technological tools must consider the specific needs of vulnerable populations or they risk exacerbating the access to justice problem. In order to successfully facilitate greater access to justice, legal tech designers must exercise empathy with target populations when conceptualizing solutions.

[1] Smith, Roger & Paterson, Alan, “Face to Face Legal Services and their Alternatives: Global Lessons from the Digital Revolution” (2014), online (pdf): Strathprints <https://strathprints.strath.ac.uk/56496/1/Smith_Paterson_CPLS_Face_to_face_legal_services_and_their_alternatives.pdf> at 19.

[2] Tania Sourdin, et al, Digital Technology and Justice: Justice Apps, (Milton: Routledge, 2020) at 23.

[3] Fahimeh Abedi, John Zeleznikow & Chris Brien, “Developing Regulatory Standards for the Concept of Security in Online Dispute Resolution Systems” (2019) 35 Computer Law & Security Review 1.

[4] Sourdin, supra note 2 at 66.

[5] Civil Resolution Tribunal, “Resources” (2021), online: < https://civilresolutionbc.ca/resources/>.

[6] Ibid.

[7] Sourdin, supra note 2 at 68; See Karen Cohl & George Thomson, “Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services” (December 2008), online: The Law Foundation of Ontario <https://lawfoundation.on.ca/download/connecting-across-language-and-distance-2008/>.

BLDC 2020

Today I had the opportunity to participate in the 2020 Boston Legal Design Challenge (#BLDC2020). It was the first year this competition was held online, and they were therefore able to include teams from outside of Boston proper.

Throughout the day we were invited to participate in exercises with our team members. Our team, the TRU Legal Architects was the only team from Canada. We were accompanied by a facilitator from Liberty Mutual Insurance in a zoom breakout room. Our facilitator led us through a collection of exercises where we collaborated through Mural.co in order to strategize and discuss what we were going to pitch to the judges.

At the end of the day, we competed against the 9 other teams and presented our idea to a panel of 3 judges. Ultimately we pitched the idea of an automated legal consultant who would provide assistance to small firms and sole practitioners looking to digitize their practice at little to no cost. We wanted to provide a resource that would help facilitate a seamless transition online for those who do not have the same resources available to them as would be found in a larger firm. We were thrilled to come in 3rd overall.

A lot of the presentations focused on access to justice and products that would help move the legal profession into the future. It was a very valuable experience and I think the people who participated will undoubtedly do great things for the profession in the future.