It is Tuesday morning and the Small Claims Court of Marion County, Indiana—virtual edition—is in session. A judge presides via Zoom as landlords and tenants, lenders and borrowers, small business owners and customers make their appearances by smartphone, tablet, or computer.
The proceedings, which are being replicated every day in courts across the country, are a concession to the COVID-19 pandemic, which for the last year has shuttered the physical spaces courts usually occupy. But it is also one of several new ways in which the doors of the civil justice system may be opening a crack for millions of Americans who have long been on the outside looking in.
“Even before the COVID-19 pandemic, the American legal system was on the cusp of some really significant change,” says David Freeman Engstrom, JD ’02, professor of law, Bernard D. Bergreen Faculty Scholar, associate dean for strategic initiatives, and co-director of the Stanford Center on the Legal Profession. “We are at a pivotal moment—and the pandemic, as with so many other aspects of American life, has only added to the disruptive potential.”
Virtual courts, such as in central Indiana, eliminate some of the principal barriers that prevent poor and working-class people from accessing the system—taking time off work, finding child care, and arranging transportation.
Court-connected “online dispute resolution” (ODR) systems are cropping up where people can work out their legal differences online without waiting months or years for a court date. Advances in digital tools and legal design are making the justice system more user-friendly. One state has gone so far as to let nonlawyers offer legal services otherwise prohibited by its professional rules.
“There is broad acceptance the profession is changing and that there needs to be new methods and roles for lawyers and nonlawyers to tackle clients’ problems,” says Margaret Hagan, JD ’13, director of the Stanford Legal Design Lab, which has been taking a novel tack to many facets related to access, including helping to assess “Zoom court” issues through its Online Court Observations study in Indiana’s Marion County.
Tackling the Justice Gap
Before the pandemic, some 30 million Americans each year faced civil legal matters without a lawyer. The justice gap has worsened in recent decades as the sector of the legal profession that serves individuals rather than corporations—so-called People Law—has steadily shrunk. Politically vulnerable legal aid groups, and lawyers’ volunteerism, have not come close to filling the void.
Now, expiring eviction moratoria and other pandemic-related consumer protections portend more bad news for tenants and debtors, who already are some of the most frequently sued people in state court and who—in the vast majority of cases—represent themselves without the help of a lawyer, according to the National Center for State Courts.
By leveraging legal tech and shifting regulatory attitudes, Engstrom sees a chance to move that playing field closer to the national ideal of “equal justice under law.” He convened a conference on the promise—and peril—of legal tech at Stanford Law in February that drew some 2,000 participants across four sessions.
Such progress owes much to the work of the late Deborah Rhode, the Ernest W. McFarland Professor of Law and founder and director of the Stanford Center on the Legal Profession, who trenchantly analyzed the access-to-justice crisis for four decades, starting with an article she wrote as a law student after a legal aid organization she worked for developed a DIY divorce kit for poor people that was subsequently challenged by the bar.
“Deborah without a doubt was the pioneer of the regulatory reform we are seeing, finally, today,” says Gillian Hadfield, JD/MA ’88 (PhD ’90), the Schwartz Reisman Chair in Technology and Society, professor of law, and professor of strategic management, at the University of Toronto. “It’s a straight line from her 1976 article, and her life’s work that followed, to the reform we see now.”
One major reform is an unprecedented program of legal services experimentation in the state of Utah that had its genesis in the Stanford Legal Design Lab, and a 2018 conference Hagan convened to explore new ways of regulating legal services. Among the ideas to emerge was a “regulatory sandbox,” which had become popular in the financial field and allowed innovators to try out new approaches in a controlled environment with regulatory supervision. The model seemed ideal for legal services where there was a crisis of access and nonlawyer entrepreneurs eager to fill the gap.
Gillian Hadfield, JD/MA ’88 (PhD ’90), the University of Toronto
Judicial and state bar leaders in Utah took note, and last August, they established a sandbox under the state supreme court that allows lawyers and nonlawyers to offer services and business models that would otherwise violate professional rules. The entities are still regulated but through periodic reports and audits that are tailored to the risks they pose to consumers; the court’s Office of Legal Services Innovation oversees the process. By contrast, lawyers have historically been subject to extensive upfront rules, such as passing the bar exam, but not much regulation once they are licensed.
“This is the first use of this kind of approach to the regulation of legal services in the United States, and really this model is the first of its kind in the world,” says Lucy Ricca, a current fellow and former executive director of the Center on the Legal Profession. “The sandbox is a mechanism to help people’s minds get wrapped around having a space for new technology and services to be brought to market and overseen in a way that is safe,” adds Ricca, who now heads the Utah innovation office.
Utah officials have approved more than two dozen new businesses, including a software company that helps ex-cons determine whether they are eligible for a state criminal expungement program and a nonlawyer-owned firm that connects Utah lawyers with consumers fighting traffic infractions. A company called Hello Divorce offers affordable marriage dissolution services through a tech platform staffed by lawyers.
“I am more optimistic about change now than I have ever been,” says Hadfield, who collaborated with Rhode on a 2016 article that previewed how a new system for regulating lawyers might look. “The tide seems to be turning.”
Alternative Legal Providers
Last year, Arizona repealed an ethics rule that barred nonlawyers from having an economic interest in a law firm, and instituted a new licensure process that will allow nonlawyer “legal paraprofessionals” to begin providing limited legal services, including going to court with clients. A “Closing the Justice Gap” working group of the State Bar of California is also exploring the development of a regulatory sandbox to welcome new service providers—both human and nonhuman (software)—into the legal system. Engstrom was appointed to the group and is helping drive the design proposal.
Court-sponsored ODR systems are modeled after technology developed by eBay and Amazon that resolves differences between e-commerce buyers and sellers without the need for humans to get involved.
Private companies are now selling versions designed for addressing legal matters. The systems were first used to resolve traffic citations and arrest warrants. Now they are being advertised as ways to resolve low-dollar, legally straightforward personal injury cases and landlord-tenant disputes, as well as consumer and medical debts.
One company—Court Innovations, in Ann Arbor, Michigan—sells a program called Matterhorn that it says is used by more than 150 courts, mediation centers, and municipalities across 20 states. Such self-guided software offers features like built-in bidding systems intended to usher the parties to a settlement, as well as an option to bring in a mediator for free.
Consumers almost unanimously prefer going to a website over a courthouse to resolve a dispute, although the online experience can be frustrating, according to a 2020 study of ODR in Utah by the University of Arizona law school. “Users are ready for online courts,” the authors said. “The challenge—and opportunity—now is to integrate human-centered design into the expansion of ODR so the technologies employed are useful and intuitive.”
The most robust versions of ODR use AI techniques that could provide disputants with a prediction of sorts as to how they would fare in court—in effect acting as a kind of stand-in for legal advice for someone who cannot afford a lawyer. Some observers say such systems—especially where human adjudicators are replaced—are fraught with problems.
“Algorithms would control the entire process—an enormous reallocation of power from parties, lawyers, and judges to software engineers,” says Norm Spaulding, JD ’97, Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law. “The evidence we have from other AI systems reveals that these systems do not reduce racial, gender, and other biases in decisionmaking; profound invasions of privacy occur; and because the systems are not transparent in how they reach decisions, they are difficult to assess and challenge. The lack of transparency raises profound questions about how courts could effectively supervise these systems.”
Read SLS Professor Norman W. Spaulding’s article “Online Dispute Resolution and the End of Adversarial Justice?”
But dispute-resolution experts believe ODR platforms could offer important options for consumers who suffer civil justice wrongdoing but fail to take action. They see the value in ODR and attendant diagnostic tools in helping determine whether someone might have a valid legal claim, and if so, where and how they can seek redress.
“Over time, the data collected on user experience of time, cost, opportunity to be heard, and personal satisfaction with process and outcome, will reveal the range of outcomes and levels of satisfaction on measures relevant to users,” says Janet Martinez, senior lecturer, director of the Gould Negotiation and Mediation Program, and author of Dispute System Design, published last year by Stanford University Press.
“One person with a money issue might value a day in court and be willing to wait for a hearing; another might be more sensitive to time and be willing to accept a predictive outcome using AI,” explains Martinez. “User choice would be fundamental to meaningful access to justice.” Juxtaposed with user interests are those of affected stakeholders—judges, court staff, attorneys, the public—and the integrity of the civil justice system overall.
Detecting Errors with AI
AI is showing promise in other adjudicatory settings too. A report last year on the use of AI in the federal government found that the Social Security Administration’s disability benefits program, which processes more claims each year than all federal courts combined, was using a suite of natural language processing tools to address a history of delays and errors.
One of the tools identifies inconsistencies in legal opinions using “quality flags” that highlight such things as an erroneous legal citation or a claim of physical capacity that is inconsistent with a job requirement. The authors—including Engstrom and Daniel Ho, the William Benjamin Scott and Luna M. Scott Professor of Law—say such techniques could be exportable to large-scale, factually similar cases in civil court.
Adjudication by agencies such as the Social Security Administration involves cases that are both high-volume and even repetitive, “where we see similar fact patterns occurring over and over again,” says Ho, who is also director of the Regulation, Evaluation, and Governance Lab (Reg Lab) and associate director for the Stanford Institute for Human-Centered Artificial Intelligence. “That is the most likely area where we will see some important gains to AI-assisted decision making in adjudication.”
The Reg Lab has been prototyping ways to reduce the cost of legal research, including a “context-aware legal citation recommendation” program that can suggest relevant legal citations during the drafting process. Another paper describes an AI system that replicates the canonical task assigned to 1L law students who must identify the legal holding from a given piece of text.
“The goal is to augment the ability of attorneys and judges to serve clients and the public,” says Neel Guha, a PhD candidate who worked on some of the research. “It is not to supplant human beings.” Guha, JD ’23 (PhD ’27, BS ’18), saw the potential of combining computer science and the law while taking a civil rights course as an undergraduate and observing how legal analysis and mathematical proofs were similar in structure and rigor.
Tapping Online’s Potential
The Legal Design Lab has been at the tip of the spear of SLS efforts to attack the access-to-justice crisis. A key focus has been making online legal help more accessible, navigable, and engaging. With a few notable exceptions, legal aid on the internet consists of lawyer ads and general information on broad topics, despite the proliferation of legal websites in recent years.
The Lab has been working to improve what’s available with “human-centered” content that people can actually use, such as a website it built last year with legal aid groups and housing law experts for the growing number of renters around the country buffeted by the economic fallout from the pandemic. The site is so helpful that the Consumer Financial Protection Board links to it from its website. The Lab has also partnered with the National League of Cities to identify and share best practices to help tenants facing evictions, and it is working with the NAACP to expand a program of community volunteers who help people of color navigate the eviction process.
Read about the steep challenges those in the criminal justice system have faced adapting to new COVID-19 safety protocols in Pandemic’s Virtual Courts
In addition, Hagan discovered that people seeking legal help online were having trouble finding free services offered by nonprofit and public interest organizations. As a result, the Legal Design Lab is now helping state courts and nonprofits redesign their websites to make them more accessible—while researching and developing digital tools that connect people in need to free services.
The Lab created a mobile app called “Learned Hands” that crowd-labels stories and scenarios found on the internet with a standardized list of legal issue codes. The objective is to have applications that can proactively connect those people to high-quality legal help even if they are unaware of the rights and remedies the law affords them.
R.J. Vogt’s interest in access to justice was piqued by an email from the Legal Design Lab last year when it convened a workshop with representatives from the Harvard Graduate School of Design and the creative director of fashion house Louis Vuitton to explore ways to reimagine court infrastructure in the digital age. One idea that emerged was a care package for unrepresented litigants that includes a foldable privacy screen they could use while testifying at home and toys to entertain their kids.
Vogt, JD ’23, is among a group of SLS students who are observing small claims court proceedings online in Marion County as part of an SLS collaboration with Indiana University’s law school and the state’s courts. Using a structured survey, the students assess self-represented consumer defendants based on such factors as appearance and demeanor and the strength of their Wi-Fi connection—areas where plaintiffs, without exception represented by lawyers, often have a distinct edge.
“The lawyers almost always have their camera on and they are sitting in an office,” says Vogt. “The defendants almost never do, and if they do, there is a good chance they are in their car or walking around.” Vogt logged on one morning to find a defendant making breakfast, apparently unaware he was on camera. Another day, a woman being sued by a credit union appeared via smartphone only to be disconnected. The project’s goal is to propose new interventions and policies that will make for more equitable and accessible hybrid courts offering both physical and virtual spaces in which to litigate.
“There’s a growing recognition that lawyers shouldn’t be so hard to access,” says Vogt. “I’ve definitely heard classmates advocate for a world where people can solve legal problems without needing to spend an exorbitant amount of money and time—and that’s with the full knowledge that such a world would not need lawyers as much as lawyers might prefer.” SL
Rick Schmitt is an attorney and a former staff writer for the Wall Street Journal and Los Angeles Times.