legal tech

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.

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.