Introduction 1364 I. The Legal Technology Ecosystem and Access to Justice 1369 II. The Apps for Justice Project at Maine Law 1374 III. Employment of Design Thinking 1376 A. Discovery 1376 B. Synthesizing the Results of Discovery: Defining the Mission and Mapping the User's Problems 1379 1. Diagnosis 1380 2. Inference and Treatment 1381 3. Human-Centered Tools for Confronting Complex and Emotional Topics 1382 C. The Development of Prototype Apps 1385 1. Rights of Tenants in Maine 1385 2. Maine Family Law Helper 1389 D. User Experience Testing 1392 1. Rights of Tenants in Maine 1392 2. Maine Family Law Helper User Testing 1397 E. Revising and Improving the Evolving Product Prototype 1399 IV. The Unauthorized Practice of Law? 1400 Concllusion 1403 INTRODUCTION
Lawyers cost money. Typically, a lot of money. As of 2012, the average billing rate for attorneys nationwide was $295 per hour. (1) That number stands in contrast to the recent statistic that almost fourteen percent of United States citizens live at or below the poverty line. (2) While a small minority of the poor can engage an attorney to help them with their law-related problems and navigate the justice system, a significant segment of people facing income constraints do not have access to professional legal assistance for civil law matters. (3) Even for middle-income Americans, a legal problem requiring more than a few hours of a lawyer's time can quickly destroy a household budget, devour savings, and lead to over-indebtedness and financial distress. (4) The Legal Services Corporation, the independent nonprofit established by Congress to provide financial support to legal services organizations, has observed that nearly one million low-income people who seek help for civil legal problems are turned away because of the lack of adequate resources. (5) A 2007 study of U.S. legal aid programs revealed that, in aggregate, there was one attorney available for every 6415 low-income clients. (6) The United States is in the midst of an access-to-civil-justice crisis, and ranks fiftieth out of sixty-six developed nations in providing affordable access. (7)
A consequence of the dearth of legal aid and other pro bono resources is that many individuals end up representing themselves, (8) a process known as pro se representation. (9) In Maine, a Supreme Court Justice estimated that between seventy-five and eighty percent of people who appear before a judge on non-criminal matters represent themselves. (10) Pro se representation can have wide-ranging consequences, for both the unrepresented individual and the legal system. An individual unfamiliar with the legal system in the United States is likely to find it bewilderingly complex. Moreover, when surveyed, sixty-two percent of judges report that outcomes for pro se litigants were less likely to be successful. (11) Pro se litigants also slow down an already clogged civil court system, putting a greater burden on judicial resources, because of their lack of familiarity with both procedural and substantive law. (12) Without the benefit of professional legal advice or other helpful resources, individuals may not know when they can do something to prevent a small legal problem from escalating.
This is particularly important because much of the emphasis on the delivery of legal services that have been historically available for low-income individuals and families are ex post and litigation-focused. (13) Even if a low-income person is able to access professional assistance, that person will likely contact a lawyer after the problem arises, when it is too late to take preventative measures. At that point, resolution of the problem typically involves adjudication, which is adversarial by nature.
Many legal needs are ex ante and transactional, such as credit repair, tenant rights, and public benefits, to name a few. A failure to address a legal need ex ante can cause collateral consequences ex post. An improperly completed form requesting reasonable accommodations can result in summary eviction litigation when a disabled individual cannot pay rent, for example. (14) This failure disproportionally affects the most disadvantaged and vulnerable communities, including women, children, minorities, and immigrant populations. (15) This systemic issue implicates an urgent need to develop new strategies and tools to address both exigent legal problems, as well as law-related concerns, before they rise to the crisis level.
In addition to developing new means to address ex ante legal issues, strategies and tools designed to increase access to justice must also reflect the fact that poor individuals and families approach legal problems differently from the non-poor, as a direct result of their poverty. (16) Poverty captures and monopolizes an individual's attention, resulting in reduced productivity and a diminished ability to process new information. (17) People living in poverty direct a tunnel-like focus on the scarcity they experience and its immediate consequences, which alters the way they perceive the world. (18) This tunneling (as it is called) on the scarcity is involuntary; one's attention is diverted to what is lacking. (19) Preoccupation with the scarcity is consuming and often overwhelming, leaving less mental bandwidth to attend to other matters. (20) It is not that the poor do not have less mental bandwidth to begin with, but rather that the "experience of poverty" reduces the available bandwidth, and in so doing imposes additional barriers to effective self-help. (21)
Moreover, when a person is facing a legal problem or crisis, it is often accompanied by feelings of anxiety and uncertainty. (22) These feelings may trigger performance-minimizing mental states that curb the person's effective deployment of information that may otherwise be helpful. (23) As the poor spend more time managing their scarcity and navigating the public programs with which they must interact, they also suffer from a pure time deficit. (24) This deficit, coupled with an understandable preoccupation with compelling short-term problems, leaves little cognitive bandwidth to engage in long-term planning, thus compromising good decision-making. (25) Therefore, in order to be able to effectively deploy available helpful information, such as information about legal rights or self-help guides, the organization deploying the information must help the affected person to overcome their negative crippling emotions. (26)
The lack of available resources to make civil justice available to all, coupled with the fact that existing strategies fail to account for the research on cognitive capacity and other deployment challenges faced by the poor, explains in large part why a high percentage of low-income individuals facing legal problems fail to take action to respond to them. (27) Such a failure to respond in a timely fashion to a nascent legal problem can lead to an escalation of the initial problem and the emergence of new ones. (28)
The access-to-justice community has begun to respond to this intensifying crisis in ever-more creative and innovative ways. Recent years have seen an expanding array of both technology and non-technology-based tools designed with the purpose of helping people who cannot afford market-rate lawyers. (29) Such innovations have recently led to adjustments in funding for legal aid programs (30) and in advancements in self-help and assisted-self-help tools. (31) These advancements include online client intake systems, (32) self-help triage programs, (33) legal diagnostic tools, (34) robot lawyer chat systems, (35) and legal expert system applications. (36) These tools have the potential to be scaled to serve millions more people and make possible a system that provides effective legal help to everyone who needs it, when they need it, and in a form they can use.
The Apps for Justice Project ("Apps for Justice" or the "Project") has focused on the development of one such solution to the access-to-justice crisis. Launched in 2016 and funded with a grant from the Maine Economic Improvement Fund, Apps for Justice has developed practical, technology-based tools (applications, or "apps") that enable low- and moderate-income residents to address their legal and law-related problems. The apps, written at a fourth-grade reading level to best serve the widest audience, use plain language rather than legal jargon. (37) Additionally, drawing on the literature from distance education, public health, behavioral economics, experimental psychology, cognitive psychology, and sociology, each app includes links to positive self-affirmation exercises and employs psychologically affirming language.
This Article describes both the evolution and development process of the project and proceeds in four parts. Part I discusses the legal technology ecosystem, including the emerging prominence of legal expert systems. Part II describes the origin of, and motivation for, the Apps for Justice Project at Maine Law School. Part III describes the human-centered design thinking process used to develop the Rights of Tenants in Maine app ("RTM") and the Maine Family Law Helper app ("MFLH"). Part IV assesses the legal and ethical questions surrounding the use of algorithms to supplant the role traditionally reserved for legal service providers. Finally, this Article concludes with a discussion of how the Apps for Justice Project will continue in its efforts to provide legal help for low-income individuals and makes some predictions for the future of technology's role in bridging the access-to-justice gap.
THE LEGAL TECHNOLOGY ECOSYSTEM AND ACCESS TO JUSTICE
The universe of consumer-facing legal technology is in a period of exponential growth. While legal research databases have been around for many years, in recent years there has been a fundamental shift in the types of legal technologies brought to market. (38) Legal expert systems are one of the tools that...