Legal Knowledge Gardening and Civil Justice Engineering

(This originally appeared in Richard Zorza’s Access to Justice blog, in 2017, but I thought it might be of more general interest.)

At a recent Justice for All event in Massachusetts I suggested that we consider our sprawl of legal help services as an ecosystem. That is, as a complex web of interacting organisms and environments, like a biological system. I showed a high-school-ish picture of a frog pond.

My slides also included images of a spotty lawn, a wide expanse of green grass, and a verdant garden. Do any of these describe where we are or want to be?

The current civil legal assistance system here and elsewhere is clearly spotty. Barren patches and ‘advice deserts’ abound. Relatively few low-income people receive truly effective help with their essential needs. Legal aid providers and pro bono programs meet about the same small fraction of demand as they did forty years ago. And commercial solutions remain too expensive or otherwise unappealing for most people of modest means. The ‘latent’ market continues to be latent. A lot of legal work that would be useful to have done is not done because it costs more than people are able, or willing, to pay.

Unless you are well-off you are likely to have to muddle through legal problems largely on your own. Even those lucky enough to afford professional help, or to secure scarce forms of free assistance, encounter frustrating delays and inconsistent quality of service. Affluence doesn’t guarantee effective help, let alone optimal outcomes. We have deep shortages both of quantity and quality. There’s a lot of satisficing going on. And more doing without.

Lack of legal help in adversarial situations is a major disadvantage. Lack of knowledge is even more disadvantaging. If you make the right moves you may be able to make the best of tough situations. But legal strategies people aren’t aware of don’t get pursued. Rights people don’t know about don’t get exercised. Laws meant to protect people are not applied or enforced.

The failure to put a bigger dent in this problem has not been for a lack of trying. Most providers want to help everyone who needs them, but they operate in a world of puny funding and competing pressures. A blizzard of approaches have been and are being tried. If this was easy, we would have solved it long ago. Why should now be different?

If our legal help system were a spotty lawn, and money were no object, we could deploy enough fertilizer, seed, and irrigation to achieve a glorious blanket of continuous green grass. No more lifeless patches. Turf for everyone. But is that what we want? Or would that be too much of a monoculture? What about a diverse garden instead, with a wide variety of vegetables, fruits, herbs, and flowers?

In any event, it’s good to remember that we’re dealing with living systems, with all their magic and quirks. Natural systems do pretty well without organized supervision, but ones intended for human purposes tend to require proactive attention. Few today seem to have clear responsibility for the overall ecosystem.

Our justice fields need more farmers and gardeners.

Hard Stuff

An alternative conception of our legal help system is as a vast machine. A huge apparatus of reciprocating parts, institutional and technological. One with infrastructure, like a large city.

Infrastructure is more than physical manifestations like buildings, roads, wires, and computers. It includes intangibles like practices, conceptualizations, and standards.

From this perspective also the current situation here and elsewhere can appear bleak. The creaky wheels of justice turn slowly. They could use lubrication. The system is disconnected and poorly coupled. Pipes are leaky, rusty, clogged, or nonexistent.

Our delivery systems consist of complex and sparsely connected networks of providers and guiders. Big challenges include scalability and sustainability. Many efforts never scale or thrive. Hackathons yield feel-good prototypes and flash-in-the-pan pilots. There’s not enough continuity and succession planning.

Just as the justice system is dealing with more people than it can handle, it’s dealing with more suggestions for improvement than it can handle. We have a contagion of good ideas. It’s hard even for ‘experts’ to keep up with them, and people are constantly reinventing approaches without taking advantage of the successes and failures of related efforts elsewhere.

We have a knowledge distribution problem. There’s too much to know, and too little time. We’re like the apocryphal blind men around a very large elephant. Our processes for distributing knowledge and cultivating shared intentions are suboptimal.

Helping the Helpers

On the bright side, we have an abundance of organizations and efforts dedicated to helping people. Most strive for excellence, and tackle daunting problems with grit and determination. We have robust online resources and communication channels. There is a growing sense of collective responsibility to see to it that all essential needs are effectively addressed. The organized bar is stepping up with more flexible and affordable service packages. And major advances continue in applications of technology to legal service delivery. (See e.g. Practice Engineering for 21st-Century Legal Services, by Michael Mills.)

Our current infrastructure includes systems that provide legal information (like MassLegalHelp and court libraries), that help people who need legal help find help (like the Legal Resource Finder), that help provider organizations coordinate with referrers and each other (like the “Intake Update” maintained by Boston’s Volunteer Lawyers Project), and that enable lawyers to provide free legal answers online. There are shareable platforms that provide interactive interviews and customized documents (like DocAssemble.org and LawHelp Interactive.) Next generation ‘portals’ are on the drawing board at Microsoft and elsewhere.

Yet plenty of other kinds of systems and practices would make it easier for folks to avoid duplicating effort, repeating mistakes, and missing opportunities. They might include:

· Collaborative triage systems that promote mutual education and shared rules of engagement.

• A Wikipedia-like complex of articles that document the organizations, people, initiatives, experiments, studies, events, and publications that are afoot in the field.
• Collaborative tools that help people make better informed choices. (See A Decision Space for Legal Service Delivery.)
• Facilities that monitor potential sources of funding and promote early awareness of opportunities so that credible proposals and collaborations can be arranged.

· Nonprofit and public-sector analogs to the Corporate Legal Operations Consortium (“CLOC”).

Both And

Some predict that by 2030 we will have 80% fewer cars than today, thanks to autonomous vehicles that will make transportation radically more efficient. (That will liberate a lot of parking spaces!) If a comparably more efficient ‘fleet’ arose in law, we might actually be able to give effective assistance to the 80%+ of people presently deprived of it. Are autonomous legal vehicles then the answer? Or at least part of it? (The law and policy around ‘unauthorized practice’ as relates to software remains strangely unsettled. Liberty, Justice, and Legal Automata makes a freedom-of-expression case for uninhibited artificial expertise.)

The United States is pathetically far behind many other democracies in terms of access to legal help. But that means that the opportunity for radical improvement here is immense. We could usher in a Golden Age of legal assistance. Imagine if there was a surplus of help available. The coming abundance of human time and attention (as machines take over other jobs) could reverse present scarcity. We may have a lot of time on our hands, and compete for meaning-driven occupation.

Transformational change will require new alliances of the born and the built. We’ll need to mobilize both machines and people, lawyers and other legal helpers, central resources and ones distributed among communities, cognitive and emotional resources. We’ll need a rainbow of disciplines and approaches. Designers, journalists, meta-helpers. Trackers as well as hackers.

An ideal legal help system would combine world-class logistics with high quality ingredients. It would enlist business ‘ops’ experts and apply Lean methods to lawyering and court processes. Something like the proposed merger of Amazon and Whole Foods.

If today’s sparse meadows are to become bountiful gardens our legal help ecosystem will need both park rangers and city managers, both knowledge gardeners and civil engineers. These are some of the vocations we should cultivate.