The Ideas Page

The ideas page is like a sketch pad. We start with some vaguely formed ideas, exchange some views and add to it the details until we advance these ideas to action, be it policy resolutions, procedural changes or other methodologies. Those ideas that move toward policies will migrate to that page of our website.

The following ideas are designed to advance access to personal legal services. Some ideas, such as legal check-ups, would advance access directly, while others, such as the process-mapping of dispute resolution functions, would take an indirect route, with improved access as a consequence. Some ideas, such as non-profit co-pay legal clinics, have existed for decades, but deserve to be scaled, while others, such as hackathons, are newly emerging. A few of these ideas are novel, while most have been employed to some extent. Some ideas could only be implemented with substantial funding. Others require little more than policy changes and collaboration. Some of these ideas may be ultimately be awful. Hopefully, many are great. All deserve some discussion and consideration by those in positions to advance them.

The ideas are presented in a structure centered on three aspects of improved access: engagement, reallocation of resources and simplification. The first set of ideas involves an expansion of engagement. These ideas look at ways that the legal community can better involve more people in the use of legal institutions to resolve their matters and the outreach that is integral to bringing them into and successfully using the system. We have both human and financial resources to provide legal services, but they are too often misaligned. The second set of ideas focuses on a reallocation of resources to better marshal what is available in ways that improve access. Finally, some ideas address simplification. How can we structure our systems in ways that provide comparable services and outcomes that are less complex? 


Click on the "idea" below to learn more.

Engagement

Include Access to Justice on the bar exam 
Require an Access Impact statement 
MCLE for Client Development 
Practice Management Advisors 
Improved pipelines 
Create Advice Bureaus
Preventive law/legal check-ups
Teach/practice holistic law
Gamification 

Reallocation of Resources

Financial resources

Unit pricing
Expand and promote fee shifting
Amend fee-shifting statutes
Value adjustment line
Crowdfund legal costs
Scale court costs/filing fees
Expand IOLTA to include business accounts of non-lawyers
Request clients to contribute to legal aid on a matching basis

Human resources

Unbundling – limited scope representation
Amend UPL statutes to create exemptions for products
Require private sector legal service providers to inform consumers of the availability of government provided forms
Encourage the replication of non-profit, tax exempt, sliding-scale, co-pay legal clinics
Allow lay directors to serve on the boards of non-profit law firms
Advance and enable networks of lawyers who have limited affiliations or are unaffiliated
Sale of a practice with continued involvement
Succession match-making 
Rural placement projects
Create tax deductions to encourage employers to offer prepaid legal service plans
Reciprocity and special admission for selected groups of lawyers
Innovative incubator training modules
Pro hac vice rules for transactional matters
Meetups and Hackathons
Outsource Paralegals
Barter

Simplification

Automated intake
Automated document preparation
Multistate uniform forms
Process mapping
Reform service of process
Electronic reminders about tribunal appearances
Increase court conveniences
Automate court and library-based self-help centers
Conduct a consumer-centric review of laws
Outsource small claims courts to ODR


Engagement


Include Access to Justice on the bar exam
 

While access to justice is a core value of the legal profession, law schools sometimes limit the conversation about the elements of access. The Supreme Court of Massachusetts has issued a rule calling for Access to Justice to be among the topics tested on the bar exam and setting out the elements that are subject to testing, including substantive areas, specific rules of professional responsibility and limited assistance representation (unbundled legal services). Law schools would have an incentive to improve their focus on issues of access if those issues were incorporated into the subject matter of bar exams. In turn, this would make lawyers better aware of the issues of access and their responsibility to address those issues. See http://www.mass.gov/courts/docs/sjc/rule-changes/bbe-rule-301-amendment.pdf

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Require an Access Impact statement 

The Ohio Supreme Court Task Force on Access to Justice has recommended that the Court require an “access to justice impact statement” be filed with any proposed amendment to the Ohio Rules of Court. The report recommends that the impact statement indicate the number of people impacted by the rule change, whether the change will increase or decrease access to the courts by those of low incomes and the impact on minorities and those with limited English proficiency. Recommendations for access impact statements have also been advanced by the Law Society of Upper Canada and the National Legal Aid of Australia. The concept of an impact statement could be advanced for bar association policy, court rules and legislations. 

See http://www.supremecourt.ohio.gov/Publications/accessJustice/finalReport.pdf;

http://accesstojustice.net/2015/04/30/ohio-surpeme-court-task-force-recomments-access-to-justice-impact-statement-requirement/

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MCLE for Client Development 

Mandatory CLE emerged as a method for lawyers to stay current with the substantive issues of their practices. Section 7(b) of the ABA Model Rule for Continuing Legal Education states: (b) THE COURSE OR ACTIVITY MUST CONTRIBUTE DIRECTLY TO LAWYERS' PROFESSIONAL COMPETENCE OR SKILLS, OR TO THEIR EDUCATION WITH RESPECT TO THEIR PROFESSIONAL OR ETHICAL OBLIGATIONS.

In 2014, the House of Delegates passed a resolution calling for the expansion of MCLE subject matter into practice management matters. However, the resolution and report did not specifically include issues of marketing or client development. Granting MCLE credit for client development would help lawyers consider more innovative and constructive outreach methods that would advance engagement to those with problems that could effectively be addressed by legal services.

See http://www.americanbar.org/content/dam/aba/migrated/2011_build/cle/mcle/aba_model_rule_cle.authcheckdam.pdf;

http://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/resolutions/2014_hod_annual_meeting_106.authcheckdam.pdf

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Practice Management Advisors 

According to the ABA,

The practice management advisors are dedicated to helping lawyers help themselves, by providing resource materials and telephone consultations, offering educational programs and, in some states, conducting in-office management audits. The services are usually free, although many programs charge a small fee for in-office visits or management audits.

Our goal should be to assure that every practitioner has access to a PMA and the resources they provide. Perhaps this could be advanced as a policy resolution, with comments that focus on the fact that PMAs need not be within state boundaries and can operate on a regional basis when a state lacks the resources to support a program and/or staff. Alternatively, bars should consider contracting with private providers when the size and budget does not justify in-house staff. For details about PMAs, see http://apps.americanbar.org/dch/committee.cfm?com=EP024000

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Improved pipelines 

Millions of people each year turn to legal resources but are not channeled to lawyers who may be able to provide them assistance. For example, the ABA Self-Help Center Census determined that 3.7 million people turn to self-help centers a year. The survey found that 38% of those centers do not refer matters to lawyer referral services even though 10 to 20 percent of center users can afford either full or unbundled legal services. This would amount to over 200,000 fee-paying people who are not being pipelined into the legal marketplace from this one conduit. Similarly, legal aid entities often screen out potential clients because they either have a matter that the legal aid system does not address, e.g. a personal injury, or they have too much money to qualify for legal aid. See Legal Genie for one legal aid program that helps connect people to appropriate marketplace resources - http://www.legalgenie.com/partner-general-information/

Millions of people each year are proceeding through the use of online DIY forms. For some, these resources, provided by government entities as well as for-profit services, provide forms and accompanying information that are sufficient. Others could benefit from consultations or additional assistance from lawyers. Requirements that websites with legal forms provide information about how to find a lawyer would be of great value to those attempting self-help.

For an example of this being done on a voluntary basis, see http://www.uspto.gov/trademarks-getting-started/using-legal-services/do-i-need-trademark-attorney.

Often people have a problem but do not realize they have a legal solution. Millions of people call United Way’s 211 service. Call for Justice Inc. is a Minnesota non-profit that trains 211 operators to diagnose legal problems and route callers to the most appropriate legal resource. On a local basis, reaching a midlevel city, Call for Justice helped place 30,000 callers in a year. Obviously, a national expansion of this type of service would reach millions. See http://callforjustice.org/             

Similarly, efforts to create collaborative partnerships will expand engagement. The best example is the medical-legal collaboration. See http://medical-legalpartnership.org/. While this model should be expanded, the legal community can benefit even more by seeking out other strategic partners to expand on the idea of collaborative engagement.

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Create Advice Bureaus

Those with problems in the UK can turn to Citizens Advice Bureaus, either online or through storefront structures. As the United Way 211 hotline demonstrates, people in the US have problems but do not know where to turn. Those problems sometimes have legal solutions. What if the US repurposed the Postal Service to include problem-solving services in addition to its traditional role?

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Preventive law/legal check-ups

The idea of preventive law emerged in the 1950s and was styled on the medical model of periodic check-ups. While it has not caught on, technological diagnostic tools now create the opportunity for lawyers to advance more sophisticated check-ups with less labor. Engagement could be expanded by revisiting this notion, which was advocated at the 2015 Midyear Meeting.

See http://bcove.me/5om3xvlx

http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=7489&context=penn_law_review

https://www.legalhealthcheckup.ca/

http://www.cba.org/cba/equaljustice/resources/checklists.aspx

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Teach/practice holistic law 

Holistic law is related to preventive law and takes the idea of engagement a step further. Forrest Mosten, who gave shape to unbundled legal services, indicates that he never closes a file. When a matter is completed, he always asks the client when they should speak next and sets up an appointment to update the client’s legal matters, and to evaluate how those matters figure in to the client’s well-being. For an example of a non-profit organization that provides holistic services, see the Lilac Tree, at http://www.thelilactree.org/index.htm.

See also, https://www.nycourts.gov/ip/partnersinjustice/Beyond-Lawyering.pdf

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Gamification

When the US Army had a slump in recruiting, it developed an online game to advance interest in military operations, with imbedded recruiting information and subsequently stimulated enlistment. Is it possible that the legal profession can use the same techniques to help people understand when they have a problem that has a legal solution? Stephanie Kimbro has been exploring gamification as a tool to expand engagement. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2586150

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Reallocation of Financial Resources

Unit pricing

What is the fair market value of a unit of legal services? Hourly billing alienates potential clients because they lack the ability to determine if the legal service is of value. Value = outcome/cost. If the consumer cannot determine the costs, he or she cannot determine the value. Medical providers, mechanics and other service providers define the fixed unit costs of their services, instead of billing by the hour. Lawyers should be in a position to do the same. However, individual practitioners often lack the data base to breakdown the value of various functions. On the other hand, bar associations are positioned to collect data that would enable the creation of fixed unit prices.

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Expand and promote fee shifting

A Massachusetts law firm represents tenants in housing matters on a fee-shifting basis. http://www.hfmgpc.com/. A Chicago firm represents parents of children in need of individual education plans in litigation with the schools system on a fee-shifting basis. http://www.maukoconnor.com/.  The ABA book Reinventing the Practice of Law includes a chapter on fee-shifting. We can better explore the extent to which fee-shifting is taking place, the legal basis for the shifting and set a course for wider use.

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Amend fee-shifting statutes

Two problems undermine access for matters where fee-shifting may be available. First, Buckhannon holds that attorneys’ fees to a prevailing party may not be awarded if the party has not secured a judgment on the merits or a court-ordered consent decree. See http://www.acluva.org/publications/GlenbergVTLAv20n42009.pdf . Second, the Court has held that attorneys’ fees are the property of the litigant, not the lawyer, and are subject to seizure to satisfy a government lien. Policies could be advanced that remove these obstacles and create better incentives for lawyers to take on these types of cases.

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Value adjustment line

The value adjustment line has been advanced among corporate legal service providers, but is equally appropriate as a tool for some personal legal service lawyers. The lawyer determines the bill for the services on the basis that had been agreed to and then gives the client the opportunity to adjust the costs up or down based on the client’s sense of the value of the service. No action need be taken to advance this concept other than to make lawyers aware of it and encourage their experimentation with it. See http://www.valoremlaw.com/value-adjustment-line

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Crowdfund legal costs

Crowdfunding has become a viable method of raising money for everything from movie production to business startups. Sites such as Kickstarter and Indiegogo have served as platforms to raise substantial sums of money. Crowd Law has created a crowdfunding site for people to fundraise for their own cases. Is it possible for the legal profession to host a site that generates revenue for pro bono and public interest cases, appealing to lawyers and others who may be interested in providing financial support?

See http://crowdlaw.net/

https://www.fundedjustice.com/en

https://www.trialfunder.com/index.php

https://crowddefend.com/

https://www.justiceinvestor.com/

https://www.lexshares.com/

http://www.abajournal.com/news/article/new_litigation_crowdfunding_site_seeks_to

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Scale court costs/filing fees

In some courts, filing fees are viewed as an opportunity to generate revenue that is not otherwise provided as part of the public funding of the court system. While those in poverty can petition to have their fees waived, those in near poverty are sometimes obligated to spend hundreds of dollars to gain access to have their legal matters heard. If filing fees were scaled according to income, people would be better able to pursue their disputes through the courts. See http://www.ncsc.org/~/media/Files/PDF/Information%20and%20Resources/Budget%20Resource%20Center/Civil%20Filing%20Fees%20April%202012.ashx

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Expand IOLTA to include business accounts of non-lawyers

Although IOLTA accounts are currently seeing record low yields, the idea of pooling money to generate revenue for public interest law programs has great value and will result in better returns when interest rates rise. Is it possible to expand IOLTA accounts beyond the legal profession? Under what circumstance can government funds, ancillary businesses or client business accounts be used to generate revenue to fund public interest and legal aid programs?

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Request clients to contribute to legal aid on a matching basis

Everyone benefits when underserved populations have access to legal services. Can a program be structured that asks clients for a contribution to legal aid or pro bono programs, e.g. 3% for Justice? This could be part of the billing structure, showing the part of the bill the law firm contributes to legal aid and asking the client to match that.

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Reallocation of human resources

Unbundling – limited scope representation

Limited scope representation, or unbundled legal services, enables lawyers to partner with their clients to parcel the segments of work to be done in various legal matters. This lowers the unit cost of the service, making those services affordable to a broader span of the population, while at the same time enabling lawyers to receive compensation without a reduction in their cost per time. The ABA has adopted a policy encouraging the use of limited scope representation. See, http://www.americanbar.org/content/dam/aba/administrative/delivery_legal_services/ls_del_unbundling_resolution_108.authcheckdam.pdf 

It has also collected the rules that clarify the propriety of these services. See, http://www.americanbar.org/content/dam/aba/administrative/delivery_legal_services/ls_del_unbundling_white_paper_2014.authcheckdam.pdf.

Three things remain to be done to better advance unbundling. First, those jurisdictions that have not clarified the rules should do so. Second, those within the legal profession, including educators, practitioners and the judiciary, should be directed to resources that help explain the circumstances under which unbundling is beneficial. Third, efforts should be made to help the public understand the existence of the unbundling option.

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Amend UPL statutes to create exemptions for products

UPL laws are often extraordinarily broad, encompassing all that which is done by lawyers. In 1995, Texas amended its definition of the practice of law to exempt “the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney.” See http://www.txuplc.org/Home/applaw

No adverse consequences have resulted in Texas as a result of this amendment. Its adoption elsewhere would clarify the permissibility of technology-based products that could expand access to both legal services for self-represented litigants and to lawyers who provide unbundled services.

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Require private sector legal service providers to inform consumers of the availability of government provided forms

The Arkansas Access to Justice Commission estimates that the use of legal aid forms at no cost saved people in that state nearly $3.5 million compared to the costs of similar forms provided by private sector online legal service providers. Hundreds of government entities, including courts, legal service agencies and state secretaries of state are providing online legal forms without cost. Steering people to those resources may save consumers tens of millions of dollars each year.

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Encourage the replication of non-profit, tax exempt, sliding-scale, co-pay legal clinics

Non-profit, sliding-scale, co-pay legal clinics serving those of low and moderate incomes emerged in a handful of communities in the 1980s, but have not proliferated as a model. Many find it essential to seek supplemental funding and are challenged by this on-going need. Nevertheless, some programs have sustained and they are highlighted in the ABA book Reinventing the Practice of Law, including:

1. The Chicago Legal Clinic - http://www.clclaw.org/default.html

2. St. Andrews Legal Clinic - http://www.salcgroup.org/

3. Levitt Quinn Family Law Center - http://levittquinn.org/

Open Legal Services - http://openlegalservices.org/ has emerged more recently. In addition to providing affordable legal services to those with moderate incomes who do not qualify for legal aid, this model may have the advantage of expediting student debt forgiveness and should be explored and encouraged further.

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Allow lay directors to serve on the boards of non-profit law firms

ABA Model Rule 5.4(d)(2) prohibits a lawyer from practicing in a firm that includes a lay director. As a result, public interest and non-profit law firms may not have non-lawyer members on their boards. Rule 5.4(e) of the Utah Rules of Professional Conduct enables non-lawyer directors for non-profit firms, stating: A lawyer may practice in a non-profit corporation which is established to serve the public interest provided that the nonlawyer directors and officers of such corporation do not interfere with the independent professional judgment of the lawyer. See http://www.utcourts.gov/resources/rules/ucja/ch13/5_4.htm

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Advance and enable networks of lawyers who have limited affiliations or are unaffiliated.

The 2013 recipient of the ABA Louis M Brown Award for Legal Access went to a young lawyer who created Access Legal Care, https://www.accesslegalcare.com. This model is the creation of a network of lawyers who serve as of counsel for the firm. When the firm obtains a client outside of the lawyer’s geographic area, it subcontracts to a lawyer where the client is for court appearances. That subcontractor is “of counsel” to the firm. State and local bar associations could facilitate the coordination of of counsel groups.

Solo and small firm practitioners with high volume practices frequently have conflicting obligations for court appearances. They often will call in an unaffiliated lawyer to cover routine matters. The mobile app StandIn enables these lawyers to contact one another on short notice. See http://www.standin.is/. Use of technology to facilitate management should be encouraged.  

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Sale of a practice with continued involvement

ABA Model Rule 1.17 permits the sale of a law practice as long as the selling lawyer ceases to practice or to practice in the area of law or geography. However, many lawyers are reluctant to sell their practices because they want to stay in the game at least part-time. North Carolina has examined a change to Rule 1.17 that would enable a lawyer to sell his or her practice and continue with the firm on an “of counsel” basis.

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Succession match-making 

The legal profession is aging at the same time a large number of newly-admitted lawyers are not being absorbed into the marketplace. The professional liability company ALPS has created an online matching mechanism at http://www.alpsattorneymatch.com/. Efforts should be made to advance this tool and to otherwise match lawyers who are at or near retirement with those who are coming into the profession.

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Rural placement projects

After the retirement of an aging lawyer, the nearest lawyer to those in a South Dakota community was 129 miles away. Some state bars are creating programs to address these lawyer deserts. Nebraska has created a summer internship program where students going into their third year intern with lawyers in rural areas who are interested in advancing their succession plans. South Dakota has marshaled legislation that leads to student debt forgiveness for lawyers who set up practice in certain rural areas. See http://www.americanbar.org/groups/leadership/office_of_the_president/legal_access_jobs_corps/lajc_resource_center/rural_support_programs.html

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Create tax deductions to encourage employers to offer prepaid legal service plans

Employers who contributed to the costs of prepaid legal service plans had been eligible for a tax deduction. However, IRS Section 120 expired in 1992. The organized bar should explore the opportunity for tax credits for the costs of prepaid plans, including at the state and local levels.

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Reciprocity and special admission for selected groups of lawyers

Access to legal services can be enhanced by an expansion of lawyers positioned to provide those services. Rules should be advanced that provide reciprocity and special admission to law faculty, lawyers who volunteer to provide disaster relief, lawyers who volunteer to serve non-profits, and retired lawyers providing pro bono legal services. While states have student practice rules, rules should be examined to determine the circumstances under which lawyers can provide services between the time they graduate from law school and are sworn for admission. To the extent rules do not exist, states should advance provisions governing this timeframe.

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Innovative incubator training modules

The ABA has identified 43 law firm incubators, most of which are operated by law schools and most all of which have emerged since 2009. Approximately 300 lawyers are participating as solo and small firm practitioners or non-profit lawyers. The incubator administrators are connected through an ABA-sponsored listserv but are limited in their ability to share innovative developments. Stakeholders should collaborate to create and advance innovative training models that can be shared among incubator programs.

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Pro hac vice rules for transactional matters

Are there circumstances where access to justice can be better served by allowing lawyers admitted in one state to provide transactional services in another state? If so, seemingly the justification and the restraints on pro hac vice that serve litigation could be applied to transactional matters.

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Meetups and Hackathons

Lawyers are coming together to discuss and explore ways that technology can improve the delivery of legal services. In particular, hackathons create small teams of lawyers who come together for a short time, sometimes as part of a competition, to create apps that better facilitate access to legal services. Hackathons are sponsored by bar associations, law schools and legal publications. Should there be efforts to expand, formalize or institutionalize what so far have been pop-up events? 

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Outsource Paralegals

Solo and small firms may not have the client-base to justify a paralegal but have peaks and valleys for their services resulting in occasional needs for assistance. This problem can be confronted through the encouragement of paralegal temps and outsourcing strategies. If a bar association were to maintain a network of vetted paralegals, they could be outsourced with an overhead lower than that available in the private market, resulting in greater usage.

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Barter

Some of those who are unable to pay for legal services have goods or skills that may be exchanged. An online system of barter and exchange for legal services would enable this concept to go beyond a one-to-one exchange and facilitate a system of credits where those in need could obtain some portion of their legal services outside of a monetary exchange. 

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Simplification

Automated intake

The use of technology to provide high volume practices with automated intake creates an efficiency that outsources the time of intake personnel. See the work done by Tiana Rostein, teaming with Neota Logic, at http://www.youtube.com/watch?v=ipVpjtOEyA8. Simple automation can be advanced through QnAmarkup, an open-source model that is easy to design and can be implemented by any lawyer. How do we advance the use of automated intake?

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Automated document preparation

Direct law (http://www.directlaw.com/) and A2J (http://www.kentlaw.iit.edu/institutes-centers/center-for-access-to-justice-and-technology/a2j-author) are examples of automated document preparation systems that use technology to create efficiencies that should result in lower costs. The challenge at this point is to connect the service providers with the lawyers who can implement the systems with their clients. Is it possible for bar associations to be conduits like they are for Fast Case and Law Pay?

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Multistate uniform forms

Uniform forms are important for the efficient advancement of technological development. There is a trend among states to adopt uniform forms that are acceptable to the courts in that state. Is it possible to advance uniform forms on a multistate basis, as the Uniform Law Commission does with legislation and rules?

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Process mapping

Law firms are mapping the process of various functions that are offered to clients in order to identify areas of potential efficiencies, and to guide and improve the processes. If courts were to undertake similar processes, they could determine how to create a consumer-centric model that would expand access and create a more efficient court experience. For example, courts may find the use of staggered docket calls and technological interfaces to be beneficial from all perspectives.

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Reform service of process

Due process requires effective notice, yet when litigants do not know the whereabouts of opposing parties, courts have permitted process through publication, which seemingly is ineffective and costly to the publishing litigant. At least one court has permitted process through posting to a party’s social media site. Rules should be advanced that revisit notice by publication and permit notice in ways that are more likely to be effective and can be done at less cost. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2413157  

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Electronic reminders about tribunal appearances

When people make an appointment for medical services, a haircut or car service, they get a message, via email and/or text, reminding them of the time and location of their appointment. Would courts benefit from having more people keep their court dates?

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Increase court conveniences

In addition to the consumer-centric changes that may result from process-mapping, courts can adopt a series of measures to accommodate its users. These include after-hour services that enable those working during the day to have access, decentralized locations, child care, dedicated space for negotiations and mediation, free or subsidized parking, and online access.

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Automate court and library-based self-help centers

Self-help services first became available in Maricopa County, Arizona in the early 1990s. Since then, they have expanded to over 500 centers that are being used by nearly 3.7 million people per year. The majority of self-help centers are only in court houses and have no online component. Their reach would be expanded if users had online access to their services. 

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Conduct a consumer-centric review of laws 

Laws sometimes set defaults that are inconsistent with the way the majority of those impacted would determine. For example, the model intestacy statute provides for an estate to be divided between a spouse and children, when most people with wills direct their estate to first go to a surviving spouse. See, http://www.uniformlaws.org/shared/docs/probate%20code/upc%202010.pdf. A project should determine other laws and establish models that are consistent with the wants of those the laws affect.

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Outsource small claims courts to ODR

Small claims courts are often inconvenient, complex and overused, while online dispute resolution is convenient, less complex and underused in at least many venues. A recommendation in the UK encourages courts to create online access for small claims. Taking the idea one step further, courts could simply outsource the small claims function to those who are now providing ODR. Seemingly, the model would have economic advantages to the courts and the ODR providers while advancing a system that is more user-friendly.

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