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January 01, 2015

Embracing Innovation to Expand Access to Civil Justice

By William C. Hubbard

In 1976, Chief Justice Warren Burger convened a national conference to examine how to make the justice system more responsive to the public. The Pound Conference paid tribute to legal scholar Roscoe Pound, who went on to serve as dean at Harvard Law School. Pound’s legendary 1906 speech at the American Bar Association, titled “The Causes of Popular Dissatisfaction with the Administration of Justice,” led to improvements in judicial administration and other justice system reforms, including enactment of the Federal Rules of Civil Procedure.

At the Pound Conference, Chief Justice Burger reminded his audience that it is “up to us to demonstrate whether we will be able to adapt the basically sound mechanisms of our systems of law to new conditions.” Recommendations from the Pound Conference paved the way to what were then largely unfamiliar and underutilized tools for resolving disputes, including mediation, arbitration, and other forms of alternative dispute resolution.

Today, the challenges facing our legal system are at least as great, perhaps greater, as when they were laid out by Roscoe Pound in 1906 and Chief Justice Burger in 1976. Our courts are seriously underfunded. Legal proceedings are growing more expensive, time-consuming, and complex. And in recent decades, despite our best efforts, we have barely made progress in providing access to justice for those who lack the means to hire a lawyer.

The United States ranks just 27th in the civil justice category among 99 countries in the World Justice Project’s 2014 Rule of Law Index. Eighty percent of people who are poor, and many others of moderate means, are not able to obtain the civil legal assistance they need. Half of those who apply for legal aid are turned away because of lack of resources. In up to 95 percent of cases in family courts in some states, at least one party is not represented by counsel. Almost 3.7 million people use the nation’s nearly 500 court-based legal self-help centers, but many centers have to turn people away.

Despite these conditions—and a contributing factor to them—funding to expand access to civil justice for the poor continues to be scarce. In 2014, congressional funding for the Legal Services Corporation stood at $365 million—$121 million less than requested and $35 million less than 20 years ago, when the demand for services wasn’t as great.

But lack of funding is not the only issue. According to the American Bar Foundation, less than one-quarter of civil justice problems in our country are taken to a lawyer. Many on the lower end of the socioeconomic scale do not seek legal help because they don’t recognize their problems as legal problems. They see them as personal problems, moral failings, or issues that just happen in life.

At the same time, technology, globalization, and other forces are transforming the ways legal services are accessed and delivered. Familiar practice structures are giving way in a marketplace that continues to evolve. New providers are emerging, online and offline, to offer a range of services in dramatically different ways.

In 2012, $66 million was invested in legal technology start-ups. A year later, it was $458 million. This year, the figure is expected to top $1 billion. These are not law firms. They are technology companies that offer legal services.

Such developments are in line with the times, as we bank differently, shop differently, and learn differently from years past. Our clients and those who could be our clients expect us to deliver legal services differently.

We are at an inflection point. Our challenge is to ensure that changes in how legal services are provided will help close the justice gap while broadening opportunities for lawyers, protecting the public, and preserving our professional independence.

To foster fresh thinking and develop sound strategies on these issues, the ABA created the Commission on the Future of Legal Services. Among the commission’s 30 members are representatives of the Conference of Chief Justices, National Center for State Courts, Federal Judicial Center, bar regulators, the legal academy, legal aid providers, and lawyers from a variety of practice areas and settings. For ideas and inspiration, we also are looking to other professions and innovative businesses. With the commission’s diverse membership, we can start to break down silos that have inhibited communication about possible solutions.

As part of a holistic approach to access to justice, the legal system must embrace technology and innovation. In doing so, we will draw on the recommendations of the Legal Services Corporation’s December 2013 Report of the Summit on the Use of Technology to Expand Access to Justice. One of the report’s more interesting observations is that 86 percent of adults making less than $30,000 per year own mobile phones, and nearly half own smartphones. We must figure out how to use these technologies to reach people whose legal needs are not being served, including those in isolated rural communities and other places far from courthouses, while also ensuring that clients’ interests are fully protected.

To gain ideas and insights, the ABA Commission on the Future of Legal Services is conducting a series of community-based grassroots meetings, which will culminate in a national summit in May 2015 at Stanford Law School. These events are designed to encourage judges, court personnel, bar leaders, practitioners, businesses, clients, technologists, and innovators to share their visions for more efficient and effective ways to deliver legal services.

The commission is also seeking information at public meetings and soliciting input from the legal profession and public. It will analyze and synthesize the insights and ideas gleaned from this process and propose new approaches that are not necessarily constrained by traditional models for delivering legal services. The commission’s proposals will be rooted in the essential values of protecting the public, enhancing diversity and inclusion, and pursuing justice for all.

As Chief Justice Burger and Roscoe Pound underscored with their contemporaries, our justice system must have the public’s trust and confidence. This principle was expressed eloquently by Learned Hand, judge and judicial philosopher, when he said, “Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it.”

Our nation’s courts are a crucial element in our quest to meet the public’s expectations by embracing innovation in the delivery of legal services. Judges and court administrators have led and can continue to lead the way in developing innovative structures and processes to manage and resolve cases.

I am grateful to the Judicial Division and The Judges’ Journal for calling attention to these issues. Please follow the ABA Commission on the Future of Legal Services at and contribute your ideas. With your participation, we can lead our legal system into a new, innovative era that honors our commitment to justice for all.