Page 120 - Impact: Collected Essays on Expanding Access to Justice

118
Will technology-enabled “triage” of clients miss important legal issues?
Part of the promise of technology-enabled services is the triage function that internet and mobile interfaces can serve . Such services can help to screen cases that are appropriate for a one-size-fits-all approach and direct them to the appropriate level of service within the legal services institution . This sort of triage occurs in legal services offices and for-profit firms every day . But such services can be labor intensive, and must be managed by someone versed in the range of issues the office handles so he or she can appropriately direct the client to the right place within the organization, or make a referral outside the organization . Technology holds out the promise that this sort of triaging can be done without the intervention of a live person, through virtual interviews, questionnaires, surveys and other means . But a virtual “interview” conducted via a questionnaire or survey can be filled out wrong by the consumer, or the interface can ask the wrong questions and can miss important issues affecting the client . Whether it is a misstep of the client in navigating a triage portal, a poorly framed question, or a survey that does not anticipate every possible permutation of every possible case, it is possible that critical facts will be missed and the triage service will go awry, missing important points or directing a customer to information or services that are not helpful, or, worse, harmful . Under the lawyer’s ethical obligations to the client, the failure to flag important legal issues, or to fail to advise the client on legal issues beyond the scope of the representation about which the client should be made aware, can be cause for a finding of malpractice and/or breach of fiduciary duty .17 While it is certainly possible for a technology-enabled interface to anticipate every potential minefield and pitfall a customer may face, time will tell whether triage is an area where machines can function at least as well as, if not better than, humans .
Will disruptively innovative, yet digitized, commoditized and atomized services allow for systemic change or undercut opportunities for collective action?
Returning to the potential service delivery landscape—where clients access services along a continuum, from accessing services from a website to full representation—it is likely that many prospective customers will find themselves treated in a vacuum, so to speak, where they cannot connect to other individuals facing similar problems . This atomization may have profound effects on the ability of consumers to collaborate together to advance social change . In fact, the availability of digitized services, which can be accessed by the click of a mouse or through a swipe on a smart phone, could lead to a weakening of the possibility of collective action . If a consumer can find some degree of assistance, no matter how shallow, will it lead her to forego opportunities to work together with other consumers in collective action or to engage in broader mobilization? This is, of course, the classic tension between political organizing and the provision of direct services that has arisen in debates around the right approach to the delivery of legal services .18 Will a digitized, atomized approach to the provision of legal services tilt the balance, placing opportunities for mass mobilization beyond the reach of legal services providers?
Perhaps, but it does not have to be that way . With the possibilities unlocked by the tools of Big Data, providers of legal services—even in their digitized, atomized form—can use information gleaned from consumer complaints and the issues that arise in communications with prospective
17 See, e.g., Nichols v. Keller, 15 Cal.App.4th 1672 (5th Dist. Cal. 1993) (finding failure to advise on potential third-party claims in workers compensation representation constitutes malpractice). In the criminal context, see Padilla v. Kentucky, 559 u.S. 356 (2009) (finding failure to advise client on the immigration effects of criminal convictions constitutes ineffective assistance of counsel).
18 See marTha f. daVis, bruTal need: lawyers & The welfare righTs moVemenT, 1960-1973, at 33-34 (1993) (describing some of the early tensions over service delivery as opposed to law reform or political mobilizations).
Impact: Collected Essays on Expanding Access to Justice