Marvel’s The Defenders two superheroes pictured above, Luke Cage (Left) and Danny Rand (Right)

Seeing the same faces and hearing recycled taking points on “how technology will ensure greater access to justice for the poor” is really getting old. Sorry for the wait peeps.

This post is part 2 of a three part series sharing some of my thoughts about legal innovation and technology’s shortcomings in closing the access to justice gap.

When we last spoke in Part 1, I briefly mentioned my work on developing a statewide action plan and social network analysis for Alaska’s Justice For All project. Since then, we have completed the plan and we’re on to implementation phase. You can check out our published findings here.

Ok, before I speak my peace. Let me nerd out for a quick minute. For those reading this post who are unfamiliar with the headline image. It helms from an iconic scene from Marvel’s “The Defenders” series where Luke Cage checks Danny Rand, or better known as Iron Fist privilege at the door.

In what raises the bar of culturally conscious tropes in a Marvel script. (Prior to Black Panther). Being ‘that even a superhero, tasked to save the world, can even be oblivious to how their privilege affects or shapes their perspective’ within the context of structural inequities that allow systems of oppression to operate efficiently. I thought this was an fitting headline image for the topic at hand.

Ok, lets begin. Below, I dive deeper into some of the issues I raised in my last piece.

  • Lack of Diversity in Tech & Legal Community (Legal Profession: majority heteronormative white male / Technology Sector: majority heteronormative white male – Legal Profession + Technology Sector = even larger majority of heteronormative white males, Communities A2J  technologies intended to serve = Mainly Poor Communities of Color)

There is no secret that both the legal and technology sectors get a failing scorecard when it comes to diversity and inclusion. Both heralded at times as being the least diverse fields. When paired together, its not a hard leap to imagine that this space churns out more of the same.

Non-diverse teams designing A2J tech solutions for communities comprised overwhelmingly of poor people of color will inevitably be highly susceptible to a myriad of design bias throughout the development and launch phase. The ancillary effect has the potential to do more harm than good to the communities these solutions intend to serve. Or at the very least, exacerbate the status quo much more efficiently.

Some will claim these issues can cured through the “design thinking” and the legal design process. However, I would argue that even the most well-intentioned non-POC designers can be simply unaware of their own narrow perspective and how that may unconsciously affect the solutions they create.

  • Many problems in conflating legal tech and A2J tech

Dan Lear made a great point at a recent meeting during the ABA Techshow. Stating “There is a difference between the improving the delivery of legal services and access to justice” I believe the later seeks to serve those most marginalized by our civil justice system. While, there is little secret that legal tech companies serve a paying customer base. The collateral effects of some legal tech solutions will undoubtably make “justice” more accessible for those who can afford to pay something. However, these solutions will do little to expand legal access to those most marginalized without intentional efforts to form private/public partnerships or collaborations with legal organizations whose mission is to serve the poor.

  • Group Think Mentality

From leading or collaborating on various national A2J tech initiatives, cultivating relationships with leaders in the space, participating and attending in many conferences, keeping up on articles and scholarship, podcasts, legal hacker events, and the list goes on.

The common legal tech or A2J conference will usually kick off something like to this – speaker one regurgitates a quote from Richard Susskind, speaker two states that 80% of poor people have unmet legal needs, speaker three blames the bar association or law school for being resistant to change. While these assertions may be true true. Overall, there seems to be little to no critique or inflection within the mainstream conversations in the legal tech/A2J tech space.

While it is fair to say that most people by now can distinguish between the hype and reality of AI in the legal field. The same is not true for many other discussions floating around this space. There seems to be a large consensus in agreement that tech and innovation will waltz in and cure the wicked ills of structural and systemic failures that deny marginalized communities from our civil justice system. Let’s revisit this.

  • Lack of Understanding of the Communities Intended to Serve | Lack of Understanding of How Poor Peoples Legal Problem Fit into a Much Larger Narrative of Institutionalized Poverty.

Speaking from my own personal experiences of growing up in a poor single parent household. When faced with circumstances such as avoiding eviction, disruptions in utilities, or maintaining employment. There was rarely a time when my mother experienced these issues and thought “if only I just had a lawyer, all of my problems will be solved.” While there very well were legal implications interwoven within these events. Ensuring the basic necessities of keeping a roof over our heads, the lights on, and food on the table were of her greatest concerns. This narrative is backed by much research in the field.

While my intentions are in not to minimize the role of lawyers and legal technology in addressing these problems. I attempt to shed light on a commonly held assumption built into many A2J technologies. That is ‘when faced with a circumstance that raises an inherently obvious legal issues to individuals with at least a college level education.’ Poor people seeking legal help do or should have the same ability to frame their problem within the context of a legal issue. This is flat out wrong.

  • Legal Education with the Exception of Hand Full of Law Schools have not adopted tech within curriculum. 

I applaud the various efforts of law schools adopting legal tech and new law within their curriculum, programming and clinics. However, If this adoption does not occur top down. i.e. the (ABA Standard and Rules), then the legal profession runs the risk of creating a future caste system of law grads that have tech and interdisciplinary skills and those that don’t. While there are some exceptions to the case, 3rd and 4th tier law schools would likely be disproportionally affected. These same law schools have a higher majority of students of color and underrepresented groups. You can do the math.

  • Model for Creation of A2J technologies, interventions is too Rigid

One of the main model for the creation of A2J tech solutions is the Legal Services Corporation’s TIG grant program. Through the grant program, legal aid organizations from different states bid on tech projects that hold the promise to improve the delivery of legal services. Among several critiques of this funding model, there is little to no incentive and infrastructure for a legal aid organization to scale a well designed solution so that other states can adopt the solution or tool. In addition, many forms and solutions run on legacy systems that may not bring the disruptive change we’re seeking.

Alternatively, hackathons are another form of creating A2J solutions. Now that the dusk has cleared from the Global Legal Hackathon, it is safe to say that legal hackathons are mainstream within the profession. However, the verdict is still left out to determine if this approach is a viable model for the sustainability of new A2J solutions. Hackathons work great in the corporate context because companies that host these events `directly benefit from the solutions created.

From my experience organizing several hackathons, we still have a long way to go before this model becomes a sustainable approach for the creation of new A2J technologies. Due in part to the visibly apparent lack of infrastructure for many projects’ continuation and/or sustainability. Other than hackathons, there are several new innovation hubs launched to serve this purpose. Yet, it is too early to determine their impact.

  • Much of the work is still done in silos

While most folks would agree that this is the case, few are doing any substantive work to change this structure. On top of the fragmentation within legal tech and the A2J community, there is little intersectionality in this space connecting to broader social justice and grass roots movements that are inherently related.

  • Race/Class/Genger is rarely in the conversation

“Maybe if we don’t talk about these issues, they will forgot about it eventually.” I get it – it’s uncomfortable to have an open frank discussion about race, class, and gender issues if you come from a position of power and privilege. I doubt it’s not as uncomfortable as getting kicked out of your house and not knowing where to turn or get legal help.There is no monolithic poor person who has a legal program. The communities and people we serve are real.

  • Tokenism is Real 

I am a black body. As well-intentioned as it may seem. Respectfully, I do not want to be put on anyones list. I do not want to sit on a panel if your conference is not truly inclusive. I would rather just create a conference that is. Incremental diversity and inclusion efforts are an subtle form of tokenism. As Cathy Cohen well articulated in Punks, Dulldaggers, and Welfare Queens “Strategies built upon the possibility of incorporation and assimilation are exposed as simply expanding and making accessible the status quo for more privileged members of marginal groups, while the most vulnerable in our communities continue to he stigmatized and oppressed.”

While this is not an exhaustive treatment of the varied complex issues affecting A2J tech. This series aims to interrogate and assess the underlying critique of the legal tech and access to justice narrative. Part three of this series will attempt to offer actionable solutions to some of the problems raised above. Please feel free to chime in with feedback and comments. You can find me at @miguelelcapiton on twitter.