February 17, 2017 Dialogue

The Future Is Here

By Hon. Lora Livingston and Linda Rexer

Background:  The Legal Futurism Movement

In February 2015, the authors were part of an IOLTA workshop panel on the legal futurism movement. Two others joined us:  William Hubbard, Past ABA President who, in 2014, appointed the ABA Commission on the Future of Legal Services; and Wayne Robertson, Executive Director of the Law Foundation of British Columbia. Mr. Hubbard talked about the legal profession being at an inflection point, as the way lawyers work is changing fundamentally. In describing the goals of the ABA Commission on the Future of Legal Services, he said access to justice is paramount. Mr. Robertson discussed approaches to innovation in Canada, where a legal futures effort has also been underway.

The authors told of how our connections with legal futurism (more on that below) gave us the very strong belief that IOLTA leaders and others in the access to justice community must lend their voices and share their access to justice experiences with the bar or other groups in their states working on legal futurism.

A Leadership Role for IOLTA Programs

Now, more than a year later, we are encouraged by the increasing number of futures discussions happening across the country. IOLTA leaders are in a unique position to give insight and wisdom to inform these discussions, to assure that access to justice is a focus area, and recognize that no matter what creative innovations are considered, clients will always need a full continuum of legal help—from information to self-help to limited assistance to full representation.

IOLTA leaders should not wait to be asked to join the conversation. Find out who in your state is working on legal futurism and ask to participate. If no one is working on how to help the profession get ahead of the curve, offer to serve as a convener. We encourage you to go to, and refer leaders in your state to, the web page of the ABA Commission on the Future of Legal Services. There, you will find tools to start discussions, research compiled by the ABA, and information about what other states are doing.

Recommended Strategies for Bringing Legal Services into the Future

ABA Commission on the Future of Legal Services

In August 2016, another important resource became available:  the final report of the ABA Commission on the Future of Legal Services. It contains findings and recommendations from the Commission’s two-year effort. The following highlights are from the ABA’s press release on the report:  Most people living in poverty and moderate-income individuals do not receive the legal help they need, and many people, including those in the middle class, do not know they have legal problems; public trust in obtaining justice is compromised by bias, discrimination, complexity, and lack of resources; the proliferation of technology, such as mobile apps and artificial intelligence, continues to change how legal services can be accessed and delivered; and the traditional law practice model constrains innovations and access.

Adopting a cornerstone recommendation from the Commission, the ABA has established a new Center for Innovation to drive innovation in the legal system, serve as a resource for ABA members, maintain an inventory of the ABA’s and others’ innovation efforts, and offer innovative fellowships to work with other professionals to create models to improve the justice system. Also, the report discusses regulatory objectives, improving the criminal justice system and legal aid funding, and pro bono.

The authors have worked directly in processes examining many of these areas:  Lora Livingston served on the ABA Commission on the Future of Legal Services; Linda Rexer served on the State Bar of Michigan’s 21st Century Practice Task Force and co-chaired its access and affordability committee.

State Bar of Michigan’s 21st Century Task Force

As the State Bar of Michigan’s 21st Century Task Force Report notes, “[t]he legal system does not have an innovative orientation. In a time when technological innovations are transforming the marketplace, the absence of an innovative culture puts the legal profession and the ability to deliver quality legal services at risk.” In response, the report urges taking “advantage of the momentum for innovation already underway . . . through increased use of technology, triage, mediation, alternative dispute resolution, and the initiation of online dispute resolution.”

Another problem the Michigan Task Force recognized is the existence of a dysfunctional legal marketplace:  “Today, legal services delivered in traditional ways are becoming more unaffordable for large segments of the population,” which the report answered in part with this vision:  “transparent, accessible, and user-friendly Internet access to reliable legal information that encourages confidence in the value of legal services, and provides connection to high quality, affordable legal services, plus on-the-ground resources that help those in need, extending a continuum of legal help to all who need it.” The full report is worth reading; it describes five problems and provides five “visions” for addressing them.

Specific Recommendations Relating to Access to Justice

Selected ideas relevant to access to justice from the Michigan Task Force’s process include:  legal self-help resources in online and local centers, triage systems, advancing unbundling and linking it to self-help and referral, online pro bono, online dispute resolution, justice innovations guidelines, civil process simplification, and linking portals to help justice system users find the kind of help they need.

 In the ABA report, there are also many ideas particularly relevant to access to justice, such as:  some form of effective assistance for essential civil legal needs should be provided to all persons otherwise unable to afford a lawyer; all individuals should have legal checkups, and the ABA should create guidelines for such checkups; the legal profession should adopt policies and practices to best advance diversity and inclusion; and resources should be vastly expanded to support long-standing efforts such as legal aid and pro bono, to address unmet needs for legal services. These challenges are not new, but the future holds new and better opportunities to meet these challenges.

Finding Innovative Approaches and Leveraging New Technology

There are other states and groups also exploring these areas and other ideas. New efforts are testing the lower cost of trained professionals who are not lawyers but are allowed to give legal advice in limited circumstances; pilot projects exploring a civil right to counsel are underway; online intake processes are being implemented; and online triage is helping people identify and find the legal help they need. All this is happening while a technology revolution is changing many things, not just legal practice. The public is used to intuitive, user-friendly web systems on which they handle transactions themselves, the digital divide is narrowing with younger people at all income levels using mobile devices to manage a large range of issues, and online legal help sites are proliferating.

Such change is happening whether we try to address it in ways that best serve the public or not. Indeed, the legal services paradigm has shifted and we must keep pace or leave behind our most vulnerable citizens. As Mr. Hubbard is quoted in the ABA report, “[w]e must open our minds to innovative approaches and to leveraging technology in order to identify new models to deliver legal services. Those who seek legal assistance expect us to deliver legal services differently. It is our duty to serve the public, and it is our duty to deliver justice, not just to some, but to all."

Fostering a Culture that Embraces Change

The British legal futurist, Richard Susskind, describes access to justice as the greatest problem in western democracies because most people cannot afford to pay a lawyer to assist them with their legal problems. In his book, Tomorrow’s Lawyers, he notes that not that many years ago lawyers rejected the use of email to communicate with clients and ignored emerging technologies like video conferencing and automated document assembly. He says the pace and scope of change is much greater now and warns of the danger of meeting such challenges with resistance to change.

Conclusion

While resistance to change is real, the authors have also experienced the opposite in our futures work. With a process that includes a wide range of stakeholders, permission to think “outside the bar,” and an understanding that coordination helps the entire system, we have seen open-mindedness, excitement, and determination to explore the opportunities as well as the challenges that futurism poses. There is an increasing awareness that we must work to shape these forces or they will shape us. IOLTA leaders are important players in this process; we urge you to get involved because the future is already here.

Hon. Lora Livingston

Presiding Judge, 261st District Court in Travis County, Texas

Hon. Lora Livingston is the presiding judge of the 261st District Court in Travis County, Texas, chairs the ABA Standing Committee on Legal Aid and Indigent Defense, is a past chair of the ABA Commission on IOLTA, and served on the ABA Commission on the Future of Legal Services

Linda Rexer

Former Executive Director, Michigan State Bar Foundation

Linda Rexer is retired Executive Director of the Michigan State Bar Foundation, served on the State Bar of Michigan's 21st Century Task Force and co-chaired its Access and Affordability Committee, served on the ABA Commission on IOLTA, and is a past president of the National Association of IOLTA Programs.