Technology and the Future of Legal Services by John A. Tull - Center for Professional Responsibility

Technology and the Future of Legal Services

by John A. Tull
November, 1999

We are in the early stages of a revolution brought about by information technology. It is a revolution in the most literal sense of the word as information technology changes how the world functions in the most fundamental ways. This paper considers the rapid course of that change and some aspects of its potential impact on legal services for low income persons.

In a few short years, nearly every level of human experience has been affected and, in some cases, transformed by information technology. Although still only in its early stages, the information revolution has already brought about profound changes in how governments and their citizens interact, how business and commerce are conducted, how international communities interact and how families and individuals relate. The changes are transformative, on a par with change brought on by the industrial and the agrarian revolutions. This revolution, however, is happening at a blinding pace that will continue to accelerate.

There is no intent here to judge the impact of the changes. Some protest that the result is dehumanizing in a fundamental way. Whether the result bodes good or ill, however, legal services leaders have a responsibility to understand the changes, as well as the risks and opportunities they pose for client communities and the work done on their behalf. The world will be transformed by what is transpiring and legal services organizations can either be at the cutting edge, taking the fullest advantage of it, or rushing to catch up, wondering at the degree to which we and our clients have become victims rather than beneficiaries of the change.

IMPLICATIONS FOR THE FUTURE DELIVERY OF
LEGAL SERVICES FOR THE POOR

Implications for clients

One significant change for clients will be the increase in the amount, quality, usability and accessibility of legal information aimed specifically at low income communities. To envision what is possible, it is helpful to note four broad areas of expected technological change that are described in greater detail later in this paper:

_ ultra-high band-width technology, which will allow the immediate transfer of large amounts of data and make possible such things as streaming video;

_ vastly easier interface features, including widespread use of voice recognition technology allowing the client to "talk" to the computer;

_ artificial intelligence allowing the computer at a basic level to analyze the facts and issues that are presented;

_ near universal connectivity, increasing the likelihood that the client will take advantage of what is offered.

These technological changes may remake entirely the role of client education, elevating it to a much more direct and pervasive part of service delivery. Information will be provided directly to members of the client community through web-based media that will assist them without the involvement of a lawyer or other staff. Such information may be aimed directly at clients or may be designed for other advocates helping the client, such as social service agencies and other community-based organizations.

At present, community legal education is largely a supplement to the principal means of serving clients through direct representation. In most programs, community legal education, or client education, features one-way communication in which the client is a relatively passive recipient of written or oral information. The usefulness of materials is strongly correlated with the language capacity and literacy level of the readers, the range of which may vary considerably among members of the intended audience.

Technology will make the interchange less dependent on the literacy level of its audience and will allow it to be both interactive and tailored to the specific circumstances of the client. Imagine a client accessing a web site featuring an interactive video that is keyed to respond to specific inquiries from the client and to the specific facts that the client confronts. The client will only need to speak to the computer to have it understand and respond. The response will be video, not words on a screen, so that the user will not have to type or read large amounts of text. The response may also have multilingual capacity, capable of detecting the language in which the user is communicating and responding accordingly. And clients may be able to access the information from anywhere with a small, portable computer that is part of a telephone, allowing inquiries to be directed to the web site while in the midst of transactions.

Preventative legal assistance . The fact that access to information about legal issues and questions will be able to happen quickly and can be available "on demand" may result in a significant increase in preventative assistance. It is not hard to imagine, for example, that a low income person could have instant access through the web to guidance, while buying a used car. Immediate advice could be universally available regarding how to proceed, including information regarding whether the price of the car is appropriate. Or, a client could seek advice while in the midst of entering into a lease for an apartment or while applying for social security benefits.

Self-help . Another change that emerging technologies may bring is a significantly increased capacity for client self-help. Web sites are likely to be a major source of assistance with pro se representation. There already are web sites where members of the public can get assistance in the preparation of pleadings with instructions regarding how to proceed. As technology makes such sites more effective and easy to use, they are likely to expand the substantive areas in which they operate and the range of assistance they offer. As artificial intelligence increases in sophistication, the capacity of such help to be directly tailored to the client's specific circumstances will increase commensurately.

A client scenario . In preparation for the Conference on Technology and the Future of Legal Services, one of its participants, Michael Genz of the Legal Services Corporation, prepared a provocative paper on what the experience of a client might be like in the technological future envisioned here. It is available on the Project for the Future of Equal Justice web site at http://www.equaljustice.org/visions/TechConf/12-Client.htm .

Implications for advocates

The impact of new technologies on advocacy will also be dramatic. The tools will increase the efficiency of how legal work is accomplished, and in some areas may lead in radically new directions how the work is done.

Virtual law firms . One change that has already begun is to join together advocates with a common set of issues in an electronic network. At a minimum, such networks allow mutual support through the sharing of research and development of broad strategies. Such connections are now largely accomplished through text based bulletin boards and listservs.

Through private extranet connections, such groupings can develop more formal relationships, organizing participants into "virtual law firms" with the capacity to counsel jointly on a single case or group of cases. Inexpensive videoconferencing will allow advocates to work from very long distances, meeting, discussing cases and jointly interviewing the client and witnesses. A case file common to the work of the firm will be made available in a secure location on the web, allowing access to the file in order to comment on pleadings and briefs, post the results of research, add correspondence or just review the case's current status. Some private law firms are already experimenting with giving their large corporate clients on-line access to their case files.

Other possibilities, which are technologically available now, include use of videoconferencing for training and task force meetings without requiring participants to travel to a common site. Indeed, the same technological approach that will make it possible to teach clients on-line may be used to support on-demand, on-line, interactive training.

Reaching clients in remote locations . Technology dissolves the boundaries of time and space. This fact is most significant for legal services programs that have struggled for years to represent clients in large, sparsely populated rural areas where it is difficult to establish and maintain a physical presence, except for occasional circuit-riding visits. Many rural communities never see a legal services lawyer or paralegal. Videoconferencing technology will allow the representation of clients in remote locations. At least one legal services program has already established remote client intake and representation using currently available internet videoconferencing capability along with a scanner and a printer. Videoconferencing already is being used for criminal court appearances and social security administrative hearings in some part of the United States and may soon be used for many more court proceedings.

Legal and factual research . As discussed later in this document, a main feature of the web is the enormous amount of data that it makes available at the touch of a button. Legal services programs need to add the significant store of information that is accumulated each year by individual programs about their own client communities and the legal work done on their behalf. Non-confidential information should be accessible through a portal available to all legal services programs. The creation of a nationwide brief bank is already well within the reach of current technology, and intelligent search mechanisms will offer the capacity to mine such a large database for research that is exactly on point B and to pass over briefs that are poorly researched and reasoned.

Intelligent search and "push" technologies will have a broad impact on how factual databases are utilized in advocacy on behalf of clients. An example will make the capability clearer. A legal services program will be able to cut an intelligent search engine loose on the web where it will search for meaningful correlations among data. Thus, for example, a lawsuit challenging the failure of banks to lend money or otherwise invest in poor neighborhoods in possible violation of federal and state laws might be supported by facts elicited from the web. Search technologies might seek out correlations among data related to housing starts, foreclosures, bank loans, sales and transfers of property, construction applications and loans, unemployment rates and demographic data, including ethnicity in various portions of a program's service area. In short, a web search overnight will be able to produce a compelling factual presentation that would cost tens of thousands of dollars to produce with a manual search and analysis of the available data. It is hard to overstate the potential of such capability for advocacy on behalf of poor communities.

Intelligent search engines may also be instructed to monitor the web continuously to bring unusual patterns and connections among data to the attention of a legal services program as an early indication of patterns or behaviors particularly affecting its clients. As just one example, a sudden sharp rise in denials of Supplemental Social Security (SSI) benefits related to a particular condition might be noted almost immediately, rather than after a noticeable number of clients have had to show up at a legal services program office. Or as another example, an intelligent search might uncover a large percentage of administrative denials of health benefits in a non-English-speaking community. If the community were one, say, which traditionally has not used the services of the program in its area, the program could, having identified the issue, undertake an outreach effort to address the problem. Absent the search, such an issue might never come to its attention.

It is possible that many programs' overall approach to advocacy will change as a result of the increased factual research capabilities contemplated here. At present, the course of litigation often involves the filing of a case in order to undertake discovery to get access to the facts necessary to support the claim. That will continue to be the case where the information is exclusively in the possession of the defendant. But increasingly, facts to sustain a claim may be more readily available and susceptible to sophisticated computer analysis without formal discovery. Pre-litigation settlement negotiations may begin to resolve many more issues without the necessity of filing litigation because of the capacity to present a potential defendant with a convincing set of facts establishing the claim.

Uses of artificial intelligence . Artificial intelligence may also bring dramatic changes for how legal services advocates practice law. The repetitive cases common to many areas of legal services practice might very well lend themselves to initial analysis by artificial intelligence. Intake of common case types could be reviewed by smart software to determine which are appropriate for more in-depth treatment, or which present a set of facts that the program has been seeking in order to mount a legal challenge to a particular practice or policy. Cases referred to contract or pro bono attorneys could be accompanied by an analysis of the likely issues and preliminary research regarding possible courses of action.

A determination of whether to take a matter to trial or to seek an appeal could be informed by an analysis of the matter, assessing, for example, the likelihood of success or the potential for damages.

An advocate's scenario . A paper prepared by Julia Gordon of the Project for the Future of Equal Justice for the Conference on Technology and the Future of Legal Services explored the potential for advocates of new and emerging information technology. It is available to the public on the Project for the Future of Equal Justice's web site at http://www.equaljustice.org/visions/TechConf/13-adv.htm . See also, A Model for Integrated High Tech Litigation by Richard Zorza, also located at the Project's web site at http://www.equaljustice.org/visions/TechConf/11-integ.htm ; and another paper prepared by the author of this article for the same conference addressing the possible impact of future technology on the management of legal services programs at http://www.equaljustice.org/visions/TechConf/14-dir.htm .

FORTHCOMING TECHNOLOGICAL CHANGES

Those who have been closely tuned into the technological developments of the past few years will not be surprised by any of the ideas suggested in this paper. But many legal services leaders and practitioners are understandably focused elsewhere than the blur of such developments, and many of the ideas may seem outlandish. It may be useful, therefore, to describe briefly some of the expected developments that will bring about the changes described above.

The Presence Revolution

One change that is well underway is the expected increase in bandwidth and other "instant access" features. Bandwidth determines the amount of information that a computer can access from the internet in a given period of time. It is like a pipeline, the diameter of which determines the amount of flow within it. Currently, bandwidth is relatively narrow and, therefore, the speed with which most computers access information from the internet is relatively slow. This is particularly true in isolated and rural areas, where the only access is by telephone lines, the bandwidth of which is quite limited.

Wider bandwidth B i.e., larger electronic "pipelines" B will allow for the immediate transfer of significantly larger amounts of electronic data. In conjunction with ever-faster computer processors, most computers will be able to access extremely large data bases from the web for analysis almost instantly. The most dramatic shift, however, may be the capacity for transfer of live action pictures, or streaming video, which currently requires far more bandwidth than most computers have access too. The experience of waiting while a collection of still pictures or graphics fills spaces scattered throughout the text will be replaced by the near instantaneous presentation of videotapes or live feeds.

Increased bandwidth will, among other things, facilitate high-quality videoconferencing, in which advocates and clients across great distances will be able interact as if meeting "in the flesh." The prospect of providing advice and pro se assistance directly to clients through the web will depend on this development. The full range of such possibilities, however, will only be feasible in the context of the next aspect of the revolution.

The Interface Revolution.

In the coming years, connecting to the internet and using other information technology will become ever easier. Now, there are a number of barriers. The necessity of typing on a keyboard or using a mouse to interact with a computer creates a barrier for many. More subtly, computers now intimidate many people. Some worry that a wrong move will permanently disable their equipment. Others are certain that computers, like dogs, can smell their fear and await the chance to freeze up and destroy their work. Unfortunately, current technology's idiosyncrasies often lend credence to the anxieties and increase resistance to its use. Software incompatibility, the legendary petulance of Windows with its frequent "fatal-error" messages, and the challenge of configuring communications software all limit the accessibility of information technology for individuals and organizations that do not have sophisticated support.

The interface revolution will address these issues and make interaction with information technology a much easier and more seamless experience. A number of technologies are already available and being improved. Voice recognition software will allow interaction without the necessity of a keyboard and will significantly overcome persons who are hampered in their use of computers because of lack of education or typing skills. The mouse will be replaced by touch screens and optically activated pointing devices. Touch screens allow the user simply to touch or tap the screen to select an option, eliminating the frustration that some find locating and positioning the pointer. Optically activated pointing devices, which have been developed for disabled persons, are being tested for general use and may open up radically different possibilities for interacting with information technology.

The Data Access Revolution.

The boon and the bane of the new information technologies are merged in the same characteristic, which is their remarkable capacity to make vast amounts of data available at the touch of a button. The boon is obvious, simply in the stating of the characteristic. Anyone with a computer has immediate access to storehouses of information previously only have been available to a diligent researcher locked in a library. Information that might have taken weeks or months to locate now can be found literally in minutes.

The bane is equally obvious to anyone who has sifted through the piles of useless web sites and dubious sources of information that a broadly stated search of the web can yield. In seconds, a search may identify thousands of sites with possible information on a given topic. Many of them, however, including those cited as being of likely interest, will turn out to be of marginal use. But without tediously scrolling through the list and following many blind leads, the user has almost no way of knowing whether pertinent information is buried in the list.

The very nature of the web is that it houses a vast database to which anyone can add data. Each addition of data adds incrementally to the web's value. And data is being added at a blistering pace. Under the Freedom of Information Act (FOIA), every government agency is required to post to its web site information that is deemed to be of public interest. Public reading material includes anything that the agency itself considers to be of public interest or for which it receives numerous requests under FOIA. The result is the immediate public availability of large amounts of information that previously was locked away in agency files, often available only to those who knew both precisely where to look for it and how to frame a FOIA request.

This policy creates only one source of new data; there are many others as private and public entities create new web sites and post to them information that only they possess. One challenge for the legal services community and other advocacy groups across the country is to develop its own database of the non-confidential information that each program has regarding its community, its clients and its legal work. That data should be made accessible to all programs through private portals on the web.

The problem created by such a wealth of data is that it can become impossible to digest and its very richness becomes a potential weakness. Enter intelligent search engines and push technologies. These new technologies will provide one solution to the problem created by technology's access to such vast amounts of data. Push technologies and intelligent searches engines are able to "mine" the web, reviewing data that is posted there and searching for useful information. New search engines not only will identify data appropriate for the user's needs, but will do far more. The technology is referred to as "intelligent" because it will have the capacity to monitor all of the data available on the web and to identify possibly meaningful patterns that it then can report to the user.

The implications for legal services practice are noteworthy. First, these technologies significantly increase the potential for advocates to produce compelling factual presentations in support of advocacy. Second, the technology will enable advocates to identify issues that are affecting clients by noting correlations among disparate facts that otherwise might go unnoticed.

The Artificial Intelligence Revolution

Of emerging technologies, artificial intelligence is the furthest from being practicable and widely available. Even it, however, is already in use in many expert systems in the private sector. Artificial intelligence (and its cousin, the neural network) is what its name implies: Machines that are capable of analyzing data to reach a conclusion regarding their significance and determining the next steps that should be taken in response. Perhaps no other change feels quite so threatening to many lawyers. After all, such analysis is what lawyers do.

On the other hand, artificial intelligence may significantly streamline the practice of law. It may conduct a preliminary evaluation of a client's problem and guide the lawyer -- or the client -- through steps to respond. For the lawyer in practice, it may mean information technology produces a preliminary analysis of a case, identifying issues that might need further consideration. Or it might review the analysis of a lawyer or intake specialist to check for missed issues. Artificial intelligence is already being used in "smart" document building, preparing necessary papers for an attorney B or directly for a client.

For courts, it could present the possibility of requiring the parties to litigation to subject their claim to a computer analysis on the question of liability and possible damages, as a nudge to responsible settlement. For a client, it may mean accessing a web site to obtain a preliminary analysis of a specific legal problem or information about rights and responsibilities in specific circumstances.

The Availability Revolution

One factor that will significantly affect the role that technology plays in the future of legal services will be the degree to which it is available both among legal services providers and their clients. Its availability among providers will be a function of planning and preparation that is discussed in this paper. Its availability among clients will affected by many factors generally out of the control of legal services providers and advocates. At present, studies show that the so-called digital divide is real and is profound. Poor communities have significantly less access to the internet than others.

Efforts are being made to address the digital divide. The Department of Commerce, public interest organizations, and private foundations are attempting to ensure that low income people and rural and other isolated communities have access to affordable information technologies. Community technology centers, schools and libraries can help provide access to the web for individuals who do not have a computer. At present, however, lack of access for many members of the client community poses a significant impediment.

Notwithstanding the current limitations on , this paper assumes that information technology will eventually be ubiquitous, even in poor communities. There are reasons for this optimistic assumption. There are two factors that may lead to a different outcome. First, is the precipitous drop in prices for basic computer capacity. That drop is has already well underway as anyone who recently has priced a computer has seen. The trend seems likely to continue in the foreseeable future.

The second, and perhaps more significant development for the poor community may be the development of Web TV, limited-use appliances to access the internet, and other products of the merger of communications technology, entertainment technology and computer technology. The recent integration of these industries through mergers and other acquisitions portend significant changes in the way that information technology is presented and marketed. While many low income families might not purchase a computer, even a very low price, most low income families do purchase a television and will be able to purchase low-end internet appliances. Powerful market forces already at work encourage the proliferation of cheap web access as it increasingly becomes a "location" for the sale of goods and services.

SOME CLOSING OBSERVATIONS ABOUT
THE INFORMATION REVOLUTION

The world within which legal services operates is going to change regardless of what legal services leaders do to respond to the technology revolution. For a local, state, or national legal services system to keep up with the global changes and to implement the transformation that is contemplated here will take a significant planning effort. Such profound change will call for expertise and vision at the top. It also calls for a long-term financial strategy for the purchase of hardware and software and for the training and human resource costs to bring people into the system.

The key is leadership. Technology presents a unique leadership and management challenge. It is a challenge that is not limited to legal services or even to the non-profit world. Commonly, the executive leaders of our institutions are not familiar with the potentialities of technology. This situation is certainly not surprising. The pace of change in information technology has been so great that differences between generations separated by only a decade can be enormous. The generation "in charge" has simply not grown up in the same world as that which is exploding around us. Many members of the leadership generation, therefore, are unfamiliar with technology. Some are afraid of it, and a few overtly hostile.

There are two features of the technology revolution that make this a significant fact. One is that technology's use is integral to the actual work it supports to a much greater degree than other technological changes have been. It is not just another tool like a better typewriter. Information technology becomes a part of the analysis and the thought process in which its user engages and actually changes the way the work is done. Lack of familiarity with technology and occasional hostility toward it is, therefore, disempowering for many leaders.

Moreover, technology is peculiarly characterized by the fact that until it is used it is difficult to imagine its potentialities. Leadership is principally about creating vision and enlisting others to embrace and implement that vision. The fact that many leaders cannot easily envision the possibilities that emerging technologies offer makes it exceedingly difficult for them to build technology into their vision. The leadership of many programs, therefore, find it difficult to take the proper initiative.

Leadership requires having well informed knowledge at the top of the possibilities that technology offers and the capacity to create a vision of what those possibilities mean for the system. It is important, therefore, that legal services recruit top level talent to support technology planning and implementation. Technology managers need to be persons who both understand the potential that technology offers and are able to grasp the essence of what needs to be done to serve clients effectively. They need, in other words, to be able to bridge the gap between the substantive work and the opportunities offered by technology. Equally, importantly, they need to be able to work directly with the leadership of the legal services community, both in local programs and at a state and national level to help incorporate technology into the future's vision.

The technology and information revolution is here. The legal services community is poised to take advantage of it to transform how low income people access legal information, legal assistance, and institutions of justice. The client community deserves nothing less than an all-out effort by the leadership of the legal services community to understand technology and use it to its fullest potential.

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