The Innovation Gap (Part 1): Why The Justice System Has Failed To Keep Pace With Technology

How is it that we can be at a time of unprecedented innovation in legal technology and yet see the justice gap grow only wider?

I hear a lot about the need for greater and greater degrees of innovation in legal technology if we are ever to close the justice gap. From my perspective, the problem is not a lack of innovative technology, it is that the legal system resists innovation. This week, I’ll address why that is. Next week, I offer suggestions for what to do about it.

When I got out of law school in 1980, one of the most innovative pieces of technology available to me was the IBM Selectric II typewriter. Until it came out, typing mistakes had to be corrected manually, rolling the paper up in the carriage, dabbing on White Out, waiting for it to dry, realigning the paper, and then continuing where you left off, your mind racing the whole time with what you want to write.

The great innovation of the Selectric II was a self-correcting ribbon. Now when you made a mistake, you hit a back button, typed over the mistake, and then typed the correct letter. That was a huge productivity boost.

Think about how far the legal profession has come since then. Now we have products such as Ross Intelligence, which promises not only to do your research for you but then also draft the research memo. When I got out of law school, the internet was not a thing. Word processors were not a thing. Online research was just becoming available through cumbersome, slow, dial-up terminals. There was certainly no talk of blockchain or bots, let alone the cloud or iPhone.

The fact of the matter is that from the time I got out of law school until now, the degree of innovation in legal technology has been enormous. On top of that, we are currently in a period when development and innovation in legal technology is exponential. I have been writing about legal technology since the early 1990s and I have never seen so much innovation happening at any one time.

Yet when I looked back recently to see which product or service my readers found most interesting last year, what do you think it was? For all the creative startups I wrote about, for all the cutting-edge technology I wrote about, my readers were most interest — by a wide, wide margin — in a keyboard designed for lawyers.

In other words, from 1980 to 2017, we’re still preoccupied with keyboard devices.

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To me, this represents the state of the legal profession: The tools have evolved, but the practice really has not. The practice of law has not changed significantly from 38 years ago and probably not much from 138 years ago. We remain mired in outmoded and inefficient ways of delivering our services.

For well-to-do clients and large corporations, this is not a problem. They can afford to pay for legal services no matter how inefficiently they are delivered and no matter at what cost they carry. Rather, impact of this falls hardest on those of low and moderate incomes.

Just look at the numbers. In the United States, 80 percent of the legal needs of low-income people and 60 percent of the legal needs of moderate-income people go unmet. Even for those who qualify for legal aid, 64 percent are turned away at the door because of agencies’ lack of bandwidth, according to a Boston Bar Association study, and the number soars to 80 percent for family matters.

Most shockingly, that same BBA study found that 47 percent of women who sought help in domestic violence cases were turned away. Can you imagine being in fear for your safety, seeking help, and being told none is available? These numbers do not include those who never asked for help.

And the situation is only getting worse, not better. In Massachusetts, where I am a past-president of the Massachusetts Bar Foundation, one of the organizations that disburses IOLTA funds in the state, IOLTA revenues fell from $31.8 million to $4.5 million from 2007 to 2015 — a $27 million drop in funding for legal services programs. The number of legal aid lawyers fell during that period from 191 to 128. At the same time, the population eligible for legal services grew from 800,000 to 974,000.

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These Massachusetts numbers reflect what is happening nationwide. Across the country, IOLTA funding fell from $371 million to $92 million. Funding for the Legal Services Corporation fell from $420 million in 2010 to $385 million in 2017.

All of this has had a devastating impact on the courts. In 76 percent of civil cases, at least one party is without a lawyer, according to a recent study by the National Center for State Courts. In certain types of cases, such as debt collection, the number nears 100 percent. This flood of self-represented litigants is overwhelming court staff, slowing court procedures, and negatively impacting courts’ ability to deliver justice.

The justice gap is huge, and technology is and must be a key to helping bridge it. As the LSC’s 2013 Report of The Summit on the Use of Technology to Expand Access to Justice put it:

Technology can and must play a vital role in transforming service delivery so that all poor people in the United States with an essential civil legal need obtain some form of effective assistance.

Then why this anomaly? How is it that we can be at a time of unprecedented innovation in legal technology and yet see the justice gap grow only wider? If technology is key, why does this situation continue?

The problem, as I said above, is not a lack of innovative technology. Innovation is great, and I am thrilled to see it continue, but the fact of the matter is that we already have the technology we need to begin to substantively address the justice gap.

No, the problem is not technology. It is that the legal system, the justice system, resists innovation. The institutions of law and the business of law are structured in ways that fight innovation and change. The legal profession, as a whole, does not want innovation. Until we have a major shift in the profession’s mindset towards technology, then all the innovation we can muster will never close the gap.

William Gibson said it best when he wrote, “The future is already here — it’s just not very evenly distributed.”

Why is this? Why is there such resistance? There are any number of reasons, but let me offer six that I think most obstruct broader adoption and acceptance of innovative technology.

1. Lawyers fear technology.

It sounds silly and simplistic to say it, but it is true. Lawyers are afraid of technology. They do not understand it. They view it as risky. They see it as a threat to their clients and to themselves.

I think of the call I received after speaking at a legal technology conference from a secretary at a 25-lawyer litigation firm. A partner wanted to set up a call with me, she said. When I asked what about, she did not know. At the appointed hour, three lawyers were on the call, confessing to me in almost hushed tones that their firm was in the dark ages regarding technology, they feared for its future if they did not modernize, but their partners opposed innovation as risky. Would I come and talk to their partners about the benefits of technology? I’d be happy to, I said.

I never heard from them again.

2. Lawyers lack competence in technology.

We resist what we do not understand. Exhibit A for lawyers who lack competence in technology is the Delaware practitioner who was called into court to account for repeated and egregious eDiscovery errors. When the judge asked him to explain himself, he offered this response:

I have to confess to this court, I am not computer literate. I have not found presence in the cybernetic revolution. I need a secretary to help me turn on the computer. This was out of my bailiwick.

I do not need to tell you how the court ruled on that.

He is not alone. Even at the U.S. Department of Justice — the elite agency that employs the cream of the crop of the legal profession — lawyers still flub simple tasks such as properly redacting highly confidential government documents, as a recent Law360 report revealed.

3. The legal profession is a protectionist guild that sees innovation as a threat.

It cannot be overstated that the legal profession sees innovation as a threat. When LegalZoom came along and started using technology to deliver legal services to individuals and small businesses more efficiently and economically, how did the organized bar respond? It sued them repeatedly — multiple lawsuits in multiple jurisdictions, trying to shut them down.

When Avvo came out with a program offering fixed-fee, affordable, limited-scope representation of individuals by lawyers — not by non-lawyers, mind you, but by lawyers — how did the organized bar respond? It issued ethics opinion after ethics opinions saying you can’t do this, lawyers, it is unethical for you to participate in this program.

When the ABA Futures Commission spent two years studying the delivery of legal services in this country and found that alternative ownership structures could be beneficial, did it recommend that such structures be allowed? No, it declined to make any recommendations about loosening ownership rules for law firms.

At every step, the organized bar is blocking innovation. Until that changes, we will never make major progress.

4. The law firm profit model favors inefficiency.

Lawyers bill by the hour. Technology reduces the number of hours it takes to get work done.

Need I say more? Upton Sinclair said it better than I can when he wrote:

It is difficult to get a man to understand something when his salary depends upon his not understanding it.

5. Courts are stuck in a vicious circle that blocks change.

I sympathize with the courts. They are overwhelmed and underfunded. The number of unrepresented litigants grows by the second, and courts are swamped trying to keep up with demand. Many are beginning to implement a variety of innovative programs and technologies to respond to this demand.

Even so, I believe that courts are, to some degree, stuck in a cycle of their own making. They continue to operate on the premise that justice has to be dispensed according to the way the system was set up centuries ago. They continue to operate a model that was designed around an exclusive club of lawyers and judges. They are not designed to serve ever-growing numbers of consumers who come into the courts without legal knowledge and without legal representation.

Until the courts start to break out of the mode in which they have operated for centuries, the crisis they face will only continue to expand.

Tech investment goes where the money is.

Not only are we in a time of unprecedented innovation in legal technology, but we are also in a time of unprecedented investment in that innovation. The problem, however, is that to the extent there is investment, it is going where the money is — or should I say where the potential payoff is.

Big investors in legal technology are putting their money into technology that is going to be sold to big corporations and big law firms. Look at the where the big investments have been over the last couple of years — in eDiscovery technology for major cases, in AI technology for mergers and acquisitions, in research and analytics platforms marketed to large firms.

We can be thankful for the LSC’s Technology Initiative Grant Program, which doles out $5 million a year to projects aimed at improving the delivery of legal services to the low-income population. That’s not exactly chump change, but in the scheme of things, more money has to be invested in building and deploying technology to serve those of low and moderate incomes.

So how do we ever overcome this resistance to technology? The short answer is that we need to reboot the legal system. Next week, in part two of this column, I’ll offer proposals for how we do that.


Robert Ambrogi Bob AmbrogiRobert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

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