future of law

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/>.

Zooming in on Legal Tech in 2020

It happened: I got old.  I don’t know exactly when it happened. Maybe it happened this semester. Maybe it happened over the summer. I suppose it could have happened last year and I just didn’t notice.

I’m not even thirty yet, and still, somehow, I have found myself at the optometrist getting fitted for bifocals so I can read the tiny print in the textbooks without giving myself a massive headache. I got a super ugly pair of orthopedic slippers. I also had set up my work station in a way that didn’t hurt my back and I had to stop using my phone so much, because oh my god, my thumbs were cramping so badly.

I have no idea how to talk to my teenage siblings anymore. They want to do all these phone-based things with me, but I spend so much time staring at a screen, that I find myself asking if we can just go play outside like we did back in the olden days.

A year and a half ago, I was working in a support role at a law firm and was running around the office helping with computer setup, database issues, software problems, whatever. But something changed.

Now, my girlfriend (who is a whopping 6 months younger) cannot understand why I don’t know how to use all the new Instagram features.

I used to be baffled by the baby boomers in my workplace who didn’t know how to edit a word document or conduct a basic document search on the firm database.

But now, I must say, I get it.

Sometimes, the font is just too small. Sometimes, the program set-up, or day to day functionality, is just so complex or so filled with bugs, that it can feel impossible to use. Sometimes, the program just isn’t intuitive, and the setup or navigation process is more complicated than the task you need the program to complete. Sometimes, the help line is closed and you’ve got a thousand other things on your plate that needed to be done yesterday.

I never thought I’d say this, but boomers, I get you.

I get you and I’m sorry for shaming you for your technological deficiencies. I now understand that in order for the field of law to step into the 21st century, we have to make legal tech more user-friendly. No senior partner is going to want to relearn their entire work system at a point in their career when they are experiencing peak success.  If I ever find myself in a web design role, I promise to make the font adjustable and organize the contents logically so that you can easily find whatever it is you need and get back to your shuffleboard game.

To my young gen z friends: you can laugh at me and my reading glasses and my misuse of snapchat filters all you like, but remember, you’re next.

Forced Change: Get With It or Get Left Behind

I first started working around real estate law and conveyancing in 2009.  At that time, the Land Title Office had been accepting electronic filing (e-filing) documents for a number of years, which had replaced the process before, physically land filing all documents at the appropriate registry.  There were a number of lawyers when I started who refused to e-file.  They were used to land filing.  I couldn’t understand it.  For a real estate office in North Vancouver to help someone buy a house in Kamloops, you could hit “submit” from your office or you could literally pay someone to go to the Kamloops registry and stand in line to file the application in person.  It seems like a pretty easy decision which one of those is more conducive to making money and not wasting time. But nevertheless, change is hard. A few years after that, around 2013, land filing became obsolete, and some lawyers never practiced real estate law again.

7 years later, I still work in a real estate firm. In March, the Land Title Office advised lawyers and notaries alike who practice real estate law that e-filing (which requires the used of Adobe Acrobat DC) is being replaced by Web Filing.   I have known about this since I returned to work after exams in April.  I knew this was coming. But I have done nothing, until today, to try and learn how to use the new system. I only tried today because I read some of these blog posts and realized I’m being part of the problem. Well that, and our e-filing applications started saying “this version of the form is being phased out” as of Thursday of last week, so I knew the end was near.

Why is it that although I know change is made for a reason, whether that’s to increase efficiency, help solve common mistakes or help make people’s lives easier, I still find it more of a hassle than a help?  I have been using the same process for 10 years and I know that process inside and out. Until that notice on my application that the end was coming, I had been feeling completely fine about not learning the new system. Of the 300 deals we have done over the past few months, only one was done through Web Filing.  So, I wasn’t alone.   The majority of firms were just like us: used to what we were used to with no desire to change until absolutely necessary.

Taking this class has made me realize how many areas of law could be helped by apps and more importantly, how much time could be saved. The number of times I’ve had to answer questions about what types of transactions GST gets paid on, it almost makes me upset thinking there could be a way for someone to find the answer themselves in a few short questions.  COVID-19 has created opportunities for delivery of legal services that were unheard of prior. The Land Title Office, during the pandemic, has allowed for videoconference signing with clients.  There are many additional requirements but it’s still possible where it was not before.

Between applications for easy access to information and lawyers being forced to embrace change and get uncomfortable more often, I think firms with staff and lawyers more able to respond quickly will have an upper hand.  Eventually, it will either be change, or get left behind.

Big Issues for Small Town Law

Bryce Gardner 

Discussions related to access to justice often discuss the unaffordability of lawyers to a regular person,  or the over-complexity of the law to the non-legal mind. These issues become irrelevant though when there simply are not any legal resources available in your area, a problem all too common in today’s small town Canada.

Nationally, only 8.7% of new lawyers (having less than five years of experience) practice in a rural setting. A survey of the Law Society of British Columbia found that most students would leave the province before considering practicing in a rural area. [1] Of those lawyers who do work in small towns, most are nearing the age of retirement. In B.C. the typical age of a lawyer is about 48, but that can skew to upwards of 52 in smaller communities. In Castlegar, B.C. it’s 65. [2] This makes sense. Most law students come from the city, and why would they ever want to leave the bars, malls and restaurants of the big city to live in a town that only has two traffic lights and the only night club is the 24/7 McDonald’s lobby?

On top the lifestyle issues, there are many obstacles that present themselves to a future small town lawyer. Small town law firms do not have nearly as many resources to recruit and hire potential successors compared to their bigger counterparts. Small town lawyers often have to provide much more general advice on a broad range of topics, something that is hard to do in a legal world where people are encouraged to specialize. The biggest obstacle is the financial aspect. Small town firms often have to start from the ground up and law schools do not teach much in terms of practical business operations. Small town lawyers often earn less than a Vancouver or Toronto lawyer but work fewer hours. As with any obstacle, however, all that is needed to overcome these issues is some creative thinking and innovation.

The Canadian Bar Association’s Rural Education and Access to Lawyers Program (REAL) has already tried to fulfill some of the demand for small town lawyers across BC. By helping find summer positions and providing funding, this program helps to give law students a taste of small town law with the hope that they will stay.  In 2010, the Law Society of Manitoba introduced a program to offer a limited number of law students the opportunity to have their student debt forgiven (up to $25,000 per year of tuition and living expenses) if they work in an underrepresented community. [3] These programs do not do enough though, as they often only entice law students who already came from small towns. Enticing those born and raised in the city is much harder.

If the Canadian Bar Association wants to get more lawyers in small towns, I recommend they should try the following:

1)  Use lessons learned from this pandemic about working remotely. So many people have been working from home and so many people will not want to return to their commute once things return to the (new) normal. Many of the small town lawyers I have met work out of home offices and never had a commute to begin with. Additionally, many lawyers have been forced to conduct research online rather than relying on a physical library. Let people know that if they like working from home it is all the more possible as a small town lawyer.

2) Establish a legal incubator within relevant communities that would provide legal and business training to articling students and new lawyers while at the same time providing affordable and accessible legal services to people in rural and remote communities. [4]

3) Better educate law students about the benefits of small town lawyer life, such as more affordable housing and lower living costs, fewer working hours (on average) and generally more meaningful work right out of law school (rural lawyers often have complete control over an entire case).

4) Provide law students with shorter programs (such as one week) to job shadow rural lawyers and see what life is like, without having to commit several months over a summer.

Perhaps I have now convinced you to give small town law a try (though statistically, probably not).  Like any access to justice problem all we can do is think about it and try to figure out solutions. If anyone wants to discuss further I’ll be at McDonald’s tonight having a drink.

Sources:

[1] Tonya Lambert, “Promoting the Practice of Law in Rural, Regional & Remote Communities” (January 7, 2020), online (blog): Law Now <https://www.lawnow.org/promoting-the-practice-of-law-in-rural-regional-remote-communities/>. 

[2] Jim Middlemiss, “Small communities struggle to pry lawyers from Canada’s big cities, despite promise of jobs”, National Post  (Oct 1, 2013) <https://nationalpost.com/news/canada/small-communities-struggle-to-pry-lawyers-from-canadas-big-cities-despite-promise-of-jobs>.

[3] Lambert, supra note 1.

[4] Ibid.

 

 

Can Law Really Catch Up To Technology?

Irene Chan

Ever since I was allowed to touch my mother’s computer (at the tender age of 7), I have been sucked into the world of security. Back when the WWW was still developing and applications were not as sophisticated as they are now, the level of information security was equally poor. Nowadays, many users take for granted encryption algorithms like AES, triple DES, RSA, etc. All of which, practically speaking, don’t allow potential intruders without prior knowledge of the keys to read the encrypted data, provided that the algorithm is properly implemented. Ask yourself these questions: do you use the same password over and over again? Have you ever used really easy passcodes like ‘1111’ or ‘1234’? Do you have a passcode for your electronics?

Cryptography and information security has evolved so much that users don’t think about breaches until after an attack. On the other hand, because security has gotten so evolved, it’s now a hassle to remember long passwords, two/three-steps verifications, and all the other features that are meant to protect our information. How do you balance accessibility and data security?

So here’s the thing. Law has always been resistant to change. As we have seen with past jurisprudence, changes only come when specific circumstances are fulfilled and society’s mindset and values have changed. It takes years, sometimes decades, to effect change in the law. Why change something that works, right? This is the complete opposite of technology. Every day, technology is trying to change, for the better or worse, it’s ever changing. If you want an example, look at the Apple iPhone. Every year a new model comes out. How about laptops? CPU chips are getting smaller and more powerful every day.

Due to COVID-19, the legal system scrambled to implement technology into its daily functions to try and keep the institution running. Even for institutions that have already integrated a sufficient level of technology for remote learning/working, we’ve see how that went down earlier this year. Our law school completely shut down on the first few days of the Fall semester despite having 5-6 months to prepare. Now that we’ve marginally solved the problem of accessibility, the next question is security. For example, it’s easy to have security when you’re locked in a windowless room with your client (let’s ignore the fact that listening devices exist for a brief moment, because then we’re getting into ‘spy stuff’). How are you supposed to ensure your video-conferencing call is secure? What happens if an intruder hacks into your private video call with a client? What of the solicitor-client privilege? What happens if someone from another jurisdiction perpetrates these attacks?

It’s true that in our Criminal Code that we have various provisions for cyber crimes, but is it really enough? One thing we know from the last 8 months is that the more reliant we become on technology, the more demand there is for legal protections to prevent harm to society and its institutions. Cyber crimes can have such devastating consequences and can be performed anywhere in the world. Perpetrators come up with new ways to perform cyber criminal activities everyday. How can the law respond to the fact that our lives are now more intertwined with technology than ever? How will the law respond to that? Is it even possible for the law, as it is now, to protect the society and individual interests?