The civil justice system in the U.S. was already staggering when Covid-19 hit. Even before the novel coronavirus reached our shores, 86% of low-income Americans did not receive adequate legal assistance in navigating disputes about housing, employment, health-care, immigration, welfare, child custody, and other non-criminal matters.
Over the past two months, as the pestilence has spread, we have seen increased unemployment, domestic violence, evictions, wage garnishments, and other problems. The pandemic and its effects are having a disproportionate effect on communities of color, and the recent protests remind us of the much longer history of racism that remains a source of pain and injustice in our society. Millions in the U.S. will face their troubles without access to the legal help they need, and the access-to-justice gap will only widen as the economy weakens.
Unfortunately, this is not just a pandemic problem. This is a long-term design problem. Our civil justice system was designed by lawyers for lawyers, with rules layered on rules, all motivated by reasonable concerns about fairness and each justified by experience, but the cumulative effect is a system that can be navigated only by experts. Most of those who need the court system, however, cannot afford to hire an attorney.
For Use by Everyday People
We need a civil justice system that is designed for use by ordinary humans. In “The Design of Everyday Things,” Don Norman describes human-centered design as “an approach that puts human needs, capabilities, and behavior first.” The results of good design, Norman says, are “brilliant, pleasurable products,” while poor design results in “unusable” products that lead to “great frustration and irritation.” The verdict in this instance is unambiguous: our civil justice system is badly designed to close the access-to-justice gap.
Examples of poor design in the law abound. Many states, for instance, have established electronic filing systems that allow the submission of court documents at any hour, but most states have made those systems available only to licensed attorneys. Individuals without a bar license are often required to submit documents by hand, during work hours.
Fixing this type of low-hanging fruit would be a start, but we need more ambitious ideas. In February, the American Bar Association passed a resolution encouraging states “to consider innovative approaches to the access to justice crisis,” and several states are already experimenting with the re-regulation of legal services.
An easy first step is to expand the definition of who can practice law. The state of Washington was the first to allow licensed technicians to help with legal matters such as divorce, child custody, and other family law issues. Utah quickly followed suit, allowing licensed paralegals to help people with a wider variety of cases, including debt collection and evictions.
The next step is to reform the way the law is practiced. One of the rules that is literally from another century requires lawyers to practice law only in lawyer-owned firms. In a book published in 2019, U.S. Supreme Court Justice Neil Gorsuch criticized this rule for limiting the amount of legal help available in the market. Gorsuch observed, “while consumers may obtain basic medical and accounting services cheaply and conveniently in and thanks to (say) Walmart, they can’t secure similar assistance with a will or a landlord-tenant problem.”
To address the shortage of legal service providers, the Utah Supreme Court has proposed a pilot program through which individuals and entities may be approved to offer nontraditional legal services to the public.
In this so-called “regulatory sandbox,” lawyers may collaborate with allied professionals to offer legal services, and nonlawyers are encouraged to practice law through technology platforms. The overarching goal of this proposal, according to the court, “is to improve access to justice [by] ensur[ing] consumers have access to a well-developed, high-quality, innovative, affordable, and competitive market for legal services.”
The California Bar is currently wrestling with a proposal to develop a regulatory sandbox, and the Arizona Supreme Court is expected to vote in August on a recommendation to “remove the explicit barrier to lawyers and nonlawyers co-owning businesses that engage in the practice of law.”
All these reforms focus on increasing the amount of legal services available, but we need more fundamental systemic change. And this is where the most difficult design work lies. Can we create a system that a person without an attorney can navigate and achieve justice? Can we do for debt collection and asylum and evictions what TurboTax® did for tax preparation?
Utah has taken another step in that direction by introducing an alternative dispute resolution system that allows individuals to resolve small disagreements without ever stepping into a courtroom. Many law schools, including BYU Law, now offer courses in legal design, which teach our students to think in a more rigorous way about problems with the civil justice system. We should not just be concerned about navigating the current rules, but about changing the rules to make them work for ordinary people.
Some of these changes will feel threatening to lawyers, but a vibrant, functional legal system is beneficial for the legal profession. Creating that system will require a multidisciplinary effort, including the talents of entrepreneurs, engineers, programmers, social workers, and other professionals.
We should not need a pandemic to confront a social problem of this magnitude, but the opportunity and need for change has never been more clear. Our goal should be to make our civil justice system accessible to its most important users: ordinary humans.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
D. Gordon Smith has served as dean of BYU Law since May 2016. He is a leading figure in the field of law and entrepreneurship focusing on innovation in the law
Kimball Dean Parker is CEO of SixFifty, the technology subsidiary of Wilson Sonsini Goodrich & Rosati, and director of LawX, the BYU Law Design Lab.