The future of legal services in the United States

by Judy Perry Martinez
Past-chair of the ABA’s Commission on the Future of the Legal Profession

(This essay originally appeared in the book “Innovation and Future of the Legal Profession in Europe / L’innovation et l’avenir de la profession d’avocat en Europe” edited by Michel Bénichou.  A copy may be purchased here.)

Regardless of industry, change occurs for two reasons: necessity and opportunity. Both are in large supply in the legal sector.  The American Bar Association already has made its mark as an innovation leader with the creation of the Commission on the Future of Legal Services in 2014 and the establishment of the ABA Center for Innovation in August 2016. The ABA is now well positioned to lead through the period of profound transformation in legal services presently unfolding in the United States and beyond.

Before discussing the future of legal services, it is instructive to look at the environment of necessity and opportunity in which the ABA’s efforts were conceived.

The United States requires attorney representation for criminal matters, but no such guarantee exists for civil issues. Traditionally, the bar has relied upon pro bono and government and privately funded legal aid attorneys to meet the civil legal needs of the American public. However, in recent years, those efforts have been shown to be woefully insufficient. In 2016, the World Justice Project’s Rule of Law Index ranked the United States as tied for 94th out of 113 countries on “accessibility and affordability of civil justice.”

The statistics are staggering. It has been estimated that eighty percent of the poor and the majority of people of moderate means don’t have access to legal services. As many as 100 million Americans are living with civil justice problems, many of which are rooted in a lack of what the ABA terms “basic human needs”, i.e. Food, Shelter, Safety and Health. Even if an individual meets the strict income and subject matter requirements necessary for legal aid representation, there simply are not enough legal aid attorneys to meet the need. The recent “The Landscape of Civil Litigation in State Courts” report by the National Center for State Courts found that in 76 % of civil cases, at least one litigant is self-represented.

It is estimated that less than a quarter of all civil legal issues are taken to an attorney. This is not due solely to the cost of legal services; many people don’t realize that their issues have a legal component or legal resolution available to them with which the courts or an attorney can assist. They see the challenge they face as a moral failing, a challenge presented for which there is no legal solution, or even just the way life is. The justice consumer’s lack of awareness regarding where to turn to solve what ultimately are legal issues, in part, represents a failure of the bar to educate the public on how the bar can assist them to assert their legal rights or how they can otherwise address the challenges which they face.

However, as a direct result of advancements in technology, opportunities exist to communicate with the public regarding how the problems they face have legal solutions and to deliver legal services to those in need in ways that are faster, smarter, and more efficient. Legal services can now be delivered on a variety of platforms, not just in a traditional one lawyer to one client as they sit in a physical office. The new surge of technology should not be viewed as a force that is going to supplant lawyers, but rather as tools and enhancements that lawyers can harness to benefit a broader segment of the public they have been sworn to serve. That same technology and innovations in delivery models also can bring legal services to those whom lawyers have not reached historically.

It was into this ecosystem that the American Bar Association created the Commission on the Future of Legal Services in 2014. This Commission was made up of practicing lawyers, in-house counsels, judges, innovators, academics, and futurists. The Commission sought to determine how they could harness technology and innovation to increase access to justice in the United States.

Over the course of two years, the Commission held eighty-five grassroots meetings and hearings. It produced five white papers on topics of major concern in the legal innovation space and solicited hundreds of comments on the papers. Additionally, the Commission presented a compendium of fifteen scholarly works by leading academics on legal innovation which was published in the University of South Carolina Law Review. The final work product of the Commission, “The Report of the Future of Legal Services in the United States”, laid out findings and recommendations of the Commission. Some of the findings of the Commission included:

  • many recent law graduates are un- or under employed, despite the great need for legal services by the public;
  • the traditional law practice business model constrains innovations that would provide greater access to, and enhance the delivery of, legal services;
  • there is an inherent resistance to change in the legal profession;
  • there is a limited amount of data available to inform public policy recommendations regarding innovations.

The Commission published twelve recommendations for the legal services industry to undertake to improve the efficiency of the delivery of legal services as well as increase access to justice. One recommendation was that courts should examine judicially authorized and regulated legal service providers and, if the courts deem it appropriate, adopt rules and procedures to govern them. The guiding principle in determining whether to authorize the legal service provider should be if it is beneficial to the public. The Commission determined that online legal services by entities that employ new technologies and internet- based platforms should also be examined. One note of caution was extended to the courts: the absence of regulation in these areas may be what is sparking innovation and courts should take care to not inadvertently stifle innovation through regulations.

It should be noted that the rules and regulations regarding the practice of law in the United States are promulgated at state level. The ABA can only offer guidance regarding regulations that should be considered by the fifty state supreme courts. To assist in this endeavor, the Commission created the “Model Regulatory Objectives for the Provision of Legal Services.” These objectives will serve as a guide to state supreme courts as they navigate the rapidly changing landscape of legal service providers. The objectives can also be used as a guidepost in interpreting existing regulations. The “Model Regulatory Objectives for the Provision of Legal Services” was submitted as a resolution to the ABA House of Delegates at the 2016 midyear meeting and was approved. The ABA Model Regulatory Objectives are now policy of the ABA.

One recommendation of the Commission on the Future of Legal Services that already has come to fruition is the creation of a Center for Innovation housed within the ABA. The Center started operations in September 2016. The Center will be at the forefront of the role of the ABA as the leader in legal innovation. A special feature of the Center is that its operations and activities will be guided by all interested in legal innovation – not only lawyers, but those involved in other industries such as design and engineering, and academe. Through the Center, all are invited to participate in the shaping of the future of legal services.

The Center for Innovation will facilitate the creation of tools and services to be used by lawyers and the public in the furtherance of access to justice. First, the Center will host fellows who will be involved in the creation of tools and resources that will assist either the public or the practicing bar. NextGen Fellows will be recent law graduates who will spend a funded year with the ABA working on their ideas to improve legal services. Innovation Fellows will be individuals more established in their career (and not necessarily lawyers) who will spend 90-120 days at the ABA Center focused on accelerating an innovative project, app, or idea.

Another way that the Center will improve legal services is through in-house creation of tools that will increase Access to Justice. Two of these are already in production and they are both mobile applications for smart phones. The first was developed in the wake of devastating floods in Louisiana this year. Due to cultural norms around unofficial transfers of property ownership, it was very difficult for residents to prove the ownership of their houses necessary to be eligible for government disaster relief funding. The app created by Stanford Law School in collaboration with the ABA Center of Innovation will guide people through the process of collecting information and documents necessary to prove ownership which will in turn allow them to more easily collect federal and state disaster funding. The other smart phone application is being created in response to the rise of hate crimes seen in late 2016. It will allow people to report these crimes to the appropriate agencies and organizations and aid individuals who are victims of hate crimes.

In addition to the tools created in-house by fellows and Center members, the Center will act as an accelerator and champion of innovation in the legal services industry. It will look for projects that will benefit from collaboration with the tools and resources that the Center for Innovation and American Bar Association can provide. It also will seek out innovative tools and practices and shine a spotlight on them.

The Center of Innovation will be a hub where all those interested and involved in legal innovation can connect and learn from each other. The Center will sponsor and produce educational content for the ABA membership and public at large so that they can learn the best practices in legal innovation as well as the latest cutting-edge trends.

The Center will also maintain an inventory of innovations currently taking place in the legal industry. Many of the people working in the legal futures space are operating in isolation. One goal of the innovation inventory is to connect those working in legal innovation. It is hoped that this effort will allow innovators to find collaborators, prevent duplication of effort, and afford a way for innovators to learn from each other’s mistakes. This inventory also will serve as a valuable resource for legal educators who are trying to design their curricula to keep pace with a rapidly changing legal landscape.

With the benefit of new tools and new service models, there is opportunity to redefine how not only lawyers but, more importantly, how the public sees legal services. The American Bar Association Center for innovation is embracing the possibilities presented by change and will lead the legal profession and the public to greater access to justice.

(This essay originally appeared in the book “Innovation and Future of the Legal Profession in Europe / L’innovation et l’avenir de la profession d’avocat en Europe” edited by Michel Bénichou.  A copy may be purchased here.)

You Be the Judge

Judge (insert your last name here), John Doe pleaded guilty last week to breaking into his neighbor’s car and is ready for sentencing.  Judge, what is your sentence?  If you decided to place Mr. Doe on probation or sentenced him to anything less than life imprisonment, then your community is now faced with the same challenges that every community faces on a daily basis.

Regardless of what you believe about sentencing, most individuals who commit crimes will either be placed on probation or released at some point after their imprisonment.  So Judge, how do you best protect the community?  How do you hold Mr. Doe accountable and give him a second chance?  How do you ensure that he has a real opportunity to succeed so that there are no more victims?  How do you wisely spend the limited tax dollars available?  Before we try to answer these extremely complicated, nuanced questions, let’s take a step back and look at the problem from a bird’s eye view.

According to the Bureau of Justice Statistics, there were 4,650,900 adults, or 1 in 53 adults, under community supervision at the end of 2015.1  Additionally, 67.8% of released prisoners in 2005 from 30 states were arrested for a new crime within 3 years and 76.6% were arrested within 5 years.2  If you are like me, then you think that these figures are unacceptable and that it is our responsibility to do everything within our power to prepare those under community supervision for the challenges ahead.  If we do nothing and keep the status quo, there will be new victims, the ugly cycle of recidivism will continue, our budgets will soar out of control, and the rehabilitation of those under community supervision likely will not occur.

While I do not have all of the answers, I suggest that we reimagine the criminal justice system and consider operating like other social service industries.  Take for example the health care industry.  Why not look there for possible solutions and consider using the technologies doctors and dentists use on a daily basis to run their practices in the criminal justice system?

Assume for a moment that you have a cold and that you schedule an appointment with the doctor next Wednesday.  What are the chances that you are going to show up for that appointment?  Very high, because shortly after you hung up the phone, you probably received a calendaring notification from the doctor’s office that you placed on your smartphone.  You also probably received a text and/or email the day before to remind you of the appointment.  Now assume that after your visit with the doctor, you were referred to a specialist.  Your information would likely be transmitted electronically to the specialist so that your arrival the next week would be expected and documented.  The use of technology in the healthcare model has drastically improved the coordination of services necessary for all of us to get healthy.  And your health is a benefit to you, your family and our community as a whole.  So what would the criminal justice system look like if we followed this health care model and utilized similar technologies?  I hope to answer this question soon.

Over the past few years, we have been working with our criminal justice partners and various technology companies to develop a fully integrated case management system with a complimentary communications platform to improve the likelihood of success.  When I place a probationer under one of our Smart Supervision programs, his/her personal information is electronically transferred from the Clerk of Court into a case management system. The Smart Probationer is then assessed by a licensed professional to determine his/her individual needs.  The Smart Probationer is then required to place an “app” on his/her smartphone, which provides the probationer with easy access to important information, including a calendar, phone numbers, group class schedules, and a geomap that plots services available throughout the community.  All of this information is web-based so that the Smart Probationer can access this critical information even if something goes wrong with his/her smartphone.

We also built a website, which contains a careers page for potential employers and a legal aid page for lawyers willing to volunteer to handle any of the collateral consequences a Smart Probationer may face.  Further, we have implemented a communications platform that allows the Smart Supervision Team, which includes the Judge, Prosecutor, Defense Attorney, Probation Officer(s), Social Workers(s), Counselor(s), Minute Clerk and other law enforcement, to communicate with one another in real time so that we can be more responsive to the needs of the individual, hopefully before it is too late.  This Smart Supervision model promotes efficiency and helps eliminate error.  We also hope to soon place the Smart Probationers within this smartphone ecosystem (with the proper permissions, of course) and implement a videoconferencing platform.

While the proposition of eliminating crime in its totality is impossible, the Smart Supervision Programs aim to change the existing model and use technology to improve public safety and drastically reduce recidivism.

Hon. Scott U. Schlegel
District Court Judge, Division “D”
24th Judicial District Court
200 Derbigny Street, Suite 5400
Gretna, Louisiana  70053
Phone:  504-364-3876
Fax:  504-364-3418