Access to Justice by Design

I. THE ACCESS TO JUSTICE CRISIS

The access to justice crisis is one of the largest issues facing the legal profession today. Almost half of Canadian adults will confront at least one civil or family justice issue over any given three-year period.¹ The Supreme Court of Canada has stated that “[e]nsuring access to justice is the greatest challenge to the rule of law in Canada today.”² The access to justice gap threatens the profession’s ability to self-regulate. If the current self-regulation model is not meeting the justice needs of the public, why should lawyers continue to have this privilege? As lawyers have a monopoly on legal services, arguably they have a moral obligation to do more to increase access to justice. Technology provides opportunities to bridge the justice divide. Technological solutions can be scaled to bring legal assistance to a wide segment of the population who otherwise could not afford it. This comment will explore how justice technology solutions can be effectively developed using the design thinking methodology.

II. TECHNOLOGY AND THE LAW

Technology and the internet are changing how individuals, particularly those in younger generations, expect to access legal resources.³ The internet allows individuals to demand self-service, fast, and convenient solutions. Increasingly, the internet is the first place that people look to solve problems.⁴ However, technology does not work for everyone and not all types of technology work for legal problems. Artificial intelligence (“AI”) presents exciting opportunities to reduce many routine tasks. Nonetheless, AI is only as good as the data that it uses and functions only to the extent that it is programmed. Complex and nuanced legal issues often still require a human factor.⁵ One also cannot ignore that vulnerable segments of the population may have significant barriers to accessing legal technologies. Up to 48 per cent of Canadians lack the literacy skills to utilize online help.⁶ Further, individuals may still prefer to get legal help from a human. The Action Group on Access to Justice’s research states that “almost two-thirds (65%) of Ontario Millennials would prefer looking for legal information in person versus online.”⁷

Acknowledging the challenges that technology-focused solutions can present is critical. Technology is not a panacea for all justice issues, but it can be a tool for positive change. The question is how to design justice technologies in a way that is meaningful to the user. Solutions must be user-focused. The legal profession can achieve this by embracing an interdisciplinary approach and adopting a design thinking methodology for human-centred design.

III. WHAT IS DESIGN THINKING?

“Empathy is the centerpiece of a human-centered design process.”⁸

Design thinking is a user-centred approach to creative problem-solving. In the legal sphere, the “user” is the client. Design thinking involves five elements:

1. 1. Empathize: The objective of “empathizing” is to understand the user by engaging with them and observing their behaviours.⁹
   2. Define: Defining the problem involves drafting a meaningful and actionable problem statement.¹⁰
   3. Ideate: The “ideate” stage is all about brainstorming creative solutions. It is not about coming up with the right idea, rather it is about generating a broad range of possibilities.¹¹
   4. Prototype: The “prototype” stage involves building a pilot solution that the user can interact with or experience.¹²
   5. Test: To understand how effective a prototype is, it must be tested with the user for feedback. This feedback is then used to refine the prototype.¹³

Design thinking uses an iterative process and incorporates user feedback at every stage of development for continual improvement. The iterative feedback loop allows solution designers to gain feedback and adjust continuously along the development path, rather than waiting until the end to see if the solution works.¹⁴ The design thinking process here is articulated in a linear fashion for simplicity, but it can be approached by using the steps in various orders.¹⁵

IV. WHY THE LAW NEEDS DESIGN THINKING

Design thinking presents the opportunity for lawyers to re-imagine how legal services are delivered while focusing on the user, a key to making improvements in access to justice. This methodology lends itself well to the legal profession as it focuses on problem-solving, exactly what lawyers are trained to do. Design thinking can promote this strength while pushing lawyers away from innovation-hampering tendencies. Lawyers are frequently risk avoiders. This tendency is helpful when giving legal advice, but it can stifle innovation in how legal advice is delivered. Lawyers are also naturally solution-focused, but this can distract from why we need solutions in the first place, for our clients. Design thinking shifts solution development from “lawyer-focused” to “client-focused”. Design thinking can also help reduce inclinations towards perfectionism as it emphasizes that there are no “right” answers.

Design thinking can create meaningful impacts in the access to justice arena. By focusing on the true needs of the user, legal services can be delivered in the most effective way possible. Design thinking can help answer questions like: What is the most useful way to deliver documents, forms, and information? How can solutions be designed to meet the needs of those with language barriers? What will users need if the court implements an online dispute resolution system? A simple example articulates the power of design thinking: a court is developing a solution to help deliver information about court processes to those with literacy issues. Potential “ideate” outcomes could include video explanations, visual flow charts, or text-to-speech buttons¹⁶ on a webpage. By prototyping these potential solutions and testing them with the user, one can truly understand if this is the right solution for this segment of the population.

Design thinking has grown in popularity in the global legal community. For example, Stanford Law School has created a “Legal Design Lab” which is aimed at building the next generation of legal services.¹⁷ Lawyers should embrace the opportunity to use design thinking to help enhance access to justice in a human-centred way and ensure that the legal profession remains relevant.

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^* J.D. Candidate (University of Saskatchewan).

¹ Trevor C W Farrow et al, “Everyday Legal Problems and the Cost of Justice in Canada: Overview Report” (2016) at 2, online (pdf): Canadian Forum on Civil Justice <http://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>, archived: <https://perma.cc/4YA5-D78W>.

² Hryniak v Mauldin, 2014 SCC 7 at para 1, [2014] 1 SCR 87.

³ The Action Group on Access to Justice, “Millennials, Technology and Access to Justice in Ontario” (2017) at 5, online (pdf): <https://theactiongroup.ca/wp-content/uploads/2015/08/TAG_Millennials_Technology_and_Access_to_Justice_in_Ontario.pdf>, archived: <https://perma.cc/NPC8-GRK8>.

⁴ PricewaterhouseCoopers LLP, “Paving the way for the next generation of eservices: How the public sector can meet Canadians’ expectations” (2013) at 2, online (pdf): <https://www.pwc.com/gx/en/psrc/pdf/pwc-paving-the-way-to-next-generation-of-eservices-canada.pdf>, archived <https://perma.cc/35BJ-CVQB>.

⁵ Frank A Pasquale, “A Rule of Persons, Not Machines: The Limits of Legal Automation” (2018) 87:1 Geo Wash L Rev 1 at 3-5.

⁶ The Canadian Bar Association, “Reaching Equal Justice: An Invitation to Envision and Act, Report of the CBA Access to Justice Committee” (2013) at 47, online (pdf): <https://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/EqualJusticeFinalReport-eng.pdf>, archived <https://perma.cc/R3WT-Y3JZ>.

⁷ The Action Group on Access to Justice, supra note 3 at 4.

⁸ Hasso Plattner Institute of Design at Stanford, “An Introduction to Design Thinking” (2010) at 2, online (pdf): <https://dschool-old.stanford.edu/sandbox/groups/designresources/wiki/36873/attachments/74b3d/ModeGuideBOOTCAMP2010L.pdf?fbclid=IwAR2QfPwJd9-IN-zbk_GIy7SgbqGriYNlKKC7CwDa7rd-O9FY3fo82qaNvm4>, archived <https://perma.cc/GBJ4-85CS>.

⁹ Ibid.

¹⁰ Ibid at 3.

¹¹ Ibid at 4.

¹² Ibid at 5.

¹³ Ibid at 2-6.

¹⁴ Peter Prud'homme van Reine, “The culture of design thinking for innovation” (2017) 5:2 J Innovation Management 56 at 66-67.

¹⁵ Hasso Plattner Institute of Design at Stanford, supra note 8 at 6.

¹⁶ Text-to-speech technology assists users by reading digital text aloud (The Understood Team, “Text-to-Speech Technology: What It Is and How It Works” (last visited 16 March 2019), online: Understood <https://www.understood.org/en/school-learning/assistive-technology/assistive-technologies-basics/text-to-speech-technology-what-it-is-and-how-it-works>, archived <https://perma.cc/X6E2-W7DW>).

¹⁷ Stanford Legal Design Lab, “Welcome” (last visited 16 March 2019), online: <http://www.legaltechdesign.com>, archived <https://perma.cc/QYB2-TJL7>.