Legal Tech Abounds, But Not The Kind People Need Most

By RJ Vogt | February 3, 2019, 8:02 PM EST

There are more than 320 digital legal tools designed for regular Americans to use, including websites that help fight parking tickets, apps that explain mortgage foreclosure and software billing itself as "like TurboTax for divorce proceedings."

But most of this legal tech for nonlawyers, about 75 percent, merely provides information about laws or attorneys, often in the form of long, text-heavy lists, according to research conducted by MacArthur Foundation fellow Rebecca Sandefur and released last week by the American Bar Foundation.

Although those resources may be helpful in some cases, Sandefur's previous research has found that people with justice problems are rarely ready to look for information about specific laws or lawyers. Their primary dilemma is often diagnosing the legal nature of an everyday problem in the first place — a service provided by just 4 percent of the tech in her Jan. 28 study.

Sandefur called the disparity between informational and diagnostic tech "a mismatch between the help these tools offer and the help people need" in her report, "Survey of U.S. Legal Technologies," which was created with funding from Open Society Foundations.

"There's actually very few of these tools that formulate the problem in the way that a normal person would experience in their lives," Sandefur, a sociologist at the University of Illinois Urbana-Champaign, told Law360. "I don't think, 'wow, my landlord is violating the implied warranty of habitability.' I think, 'why is this weird mushroom growing out of my bathroom wall and how can I make it stop?'"

The gap in diagnostic tools is hard to bridge for tech developers, who must follow bar association and court regulations on the kinds of services nonlawyers can provide. Margaret Hagan, director at Stanford Law School's Legal Design Lab, said rules on unauthorized practice of law are the main constraints for those creating access to justice tools.

"These technology and design teams look at the possibility of being sued for crossing that line from information to advice," Hagan told Law360. "They stick with the most conservative version of what might be possible ... and they don't even explore more ambitious types of services for a fear that it will all be exposing them to liability."

She added that while consumer protection is "obviously" an important concern, she's seen little evidence regarding the risks of providing more diagnostic applications.

"The current regulations inhibit a lot of innovation," Hagan said.

Another reason for the dearth of diagnostic legal tools is the way many of them are funded, according to Natalie Anne Knowlton, special projects director at the Institute for the Advancement of the American Legal System.

She said that other startup tech developers have to show venture capital investors how their product is working for consumers, creating an incentive to employ user-centric design, whereas legal aid tech developers are frequently underfunded and rarely held accountable to performance in the market.

"If you're a cash-strapped nonprofit building a tool that you hope is going to be useful once you put it out there, I think your incentives and abilities are limited," Knowlton said. "They don't have VC backing, they don't have money. So these free tools are being developed that just aren't meeting the need."

By contrast, Knowlton cited the nonprofit startup JustFix as an example of how legal tech can employ human-centered design without stepping on the toes of law practices. The New York-based company's tools include one called Who Owns What, which allows tenants to learn more about the buildings their landlord holds, as well as an app that helps users notify landlords about repair issues.

"JustFix knew what the problem was, in detail, from talking to people who would potentially use these tools," she said. "And then they designed around that."

The company's mission statement says "we are here to augment, not replace" things like pro bono legal services.

In addition to concerns about the types of tools available, Sandefur's survey revealed other accessibility gaps: only 1 in 4 tools are available in languages other than English, and only 1 in 6 are usable by people who cannot read or cannot see text.

Sandefur noted that people with disabilities or non-native English speakers are disproportionately concentrated among the population already shut out of the legal system — the groups most access to justice tool developers are targeting in the first place.

"We created things that the people we're trying to help are less likely to be able to use than the people who we're not trying to help," she said.

Hagan and Knowlton both hope developers will start to shift toward more user-centric tools, especially now that more gaps in the legal tech landscape are being identified. But ultimately, Sandefur said the rules prohibiting nonlawyers from providing even limited legal advice for common justice problems are "excessively strict."

"It's time to rethink these rules in a smart way," she said in a statement. "We need to open up spaces for innovation that put the public interest first. That means focusing on consumer protection and access to justice, not old-style professional monopolies."

Some rethinking is already underway. In 2016, the American Bar Association adopted a resolution that laid out model regulatory objectives for state courts, including guidance toward rules that provide for "meaningful access to justice" and "diversity and inclusion among legal services providers."

"The ABA encourages innovations in the delivery of legal services that expand access to justice while ensuring that legal services are provided in a responsible and ethical manner," ABA President Bob Carlson said in a statement. "The ABA recognizes the importance of thoroughly evaluating such innovations to ensure that the public is protected."

--Editing by Brian Baresch.

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