The Case for AI-Powered Legal Aid.

• Author: Dahan, Samuel
• Position: Artificial intelligence - Special Issue: COVID-19 and the Law

Introduction I. The COVID-19 Justice Transformation II. AI Legal Help III. Opportunities and Challenges Conclusion Introduction

According to a recent Organization for Economic Co-operation and Development (OECD) study, half of the human beings on the planet are deprived of the "protections, entitlements, and benefits that the law can and should afford". (1) Canada is not a special case. (2) In fact, Canada lags behind other "developed" nations in ensuring that all citizens can effectively access our justice system, including finding legal help. (3) The number of people forced to represent themselves has ballooned over the last twenty years, and the COVID-19 pandemic has only exacerbated the access to justice problem. Chief among the causes of this phenomenon are the high cost of litigation and the complexification of legal issues and court processes. This does not affect only low-income Canadians--many people with average incomes are also priced out of the justice system. Hiring a lawyer for low-cost disputes makes little financial sense in most cases, as the legal fees are often higher than the value of the disputes.

While litigation costs and the complexity of court processes represent serious hurdles for litigants, effective access to justice requires more than simple access to courts and lawyers. (4) We believe technology may constitute one avenue for improving effective access to justice and especially legal help. As argued by the Right Honourable Beverley McLachlin CJ, the legal profession needs to "accept the idea of change", including the reality that some tasks that have traditionally been performed by lawyers can now be more effectively executed through technological means. (5) As the coronavirus has spread and courts around the world have closed in response to the pandemic, a radical technological transformation has taken place. New methods of communication have been adopted with remarkable speed; however, in the legal context, "dropping hearings into Zoom has not been a shift in paradigm". (6) Grafting technology onto processes that date as far back as 900 years is a misguided strategy insofar as the root cause of the digital transformation is unrelated to COVID-19. Court systems around the world have been broken for a long time. The challenge is to develop customized solutions that change how the justice system operates, not to computerize broken practices. (7)

While there are many possible solutions that deserve separate articles (or books) of their own, this piece focuses on accessible legal aid technology especially artificial intelligence (AI) and data science technology. A new generation of direct-to-public (DTP) AI tools can improve access to justice by providing the minimal level of legal help for meeting basic legal needs. Open AI technology has the potential to determine whether someone has a legitimate legal claim, help lawyers increase the efficiency of their service delivery, and help litigants for whom litigation is otherwise out of reach.

In this paper, we first discuss the problem of access to justice and the technological transformation triggered by the COVID-19 pandemic. Second, we discuss how open access technology, especially data science and AI research, can promote effective access to justice by providing accessible and individualized legal help and dispute resolution solutions. In particular, we examine a recent initiative launched at the Queen's University, Faculty of Law in 2020: MyOpenCourt, (8) an Al-powered legal aid system designed to help self-represented litigants and small to medium sized enterprises (SMEs). Finally, we approach legal aid technology from a legal perspective. We explore whether there is a legal argument to be made in favour of the development of technological legal aid mechanisms, including open access legal information and legal aid systems. We also discuss the legality of DTP technology and the risks associated with its use.

1. The COVID-19 Justice Transformation

   In March 2020, in response to the rapid spread of a newly identified coronavirus, SARS-CoV-2, court buildings around the world began to close. Within a fortnight, there was a technological upheaval as the justice system moved from a world in which almost all court hearings were held in person to one in which where almost none were. (9) To ensure ongoing access to justice, governments and judiciaries rapidly introduced various forms of "remote court": audio hearings (largely by telephone), video hearings (for example, via Skype and Zoom), and paper hearings (decisions delivered on the basis of written submissions only). (10) Remote Courts Worldwide notes that participants from fifty-six countries have adopted new digital processes in response to the pandemic, whether they are video, phone, or email. (11) While many judges and lawyers may have initially had visceral negative reactions to the prospect of virtual hearings, they quickly adapted. Two important questions remain: First, what is the underlying cause of this transformation in the justice system? Second, does the digitalisation or "Zoomification" of court operations constitute a radical paradigm shift?

   COVID-19 may have triggered or accelerated the digital transformation in the justice system, but the root cause is found elsewhere. The reality is that the access to justice crisis is a long-standing problem, and the pandemic has only exacerbated this crisis. According to a 2016 OECD report, more than four billion people live beyond the protection of lawyers, courts, and the law. (12) In some countries, the backlog is staggering: some eighty million cases in Brazil, for instance, and thirty million in India. Even in advanced legal systems the process is often understandable only to lawyers, is too expensive for most people, and civil cases take far too long. (13)

   According to Julie Macfarlane, Canada is no exception. (14) Canadians are losing confidence in the legal profession. This is the result of a myriad of financial, psychological, informational, and physical barriers faced by Canadians in accessing lawyers, legal processes, and legal information, leading many Canadians to consider representing themselves. (15)

   Emerging evidence suggests that the COVID-19 crisis is only exacerbating the vulnerabilities of individuals that were already at higher risk. Disadvantaged groups are likely to experience increased legal needs. (16) As a result, the COVID-19 pandemic has substantially increased the importance and magnitude of the access to justice demand. It is anticipated that individuals will face risks at the intersection of legal issues and benefits, employment, housing, family, health, and debt, which could increase the complexity of the needs experienced by citizens, and in turn the complexity of cases confronting justice systems. For SMEs, these increased concerns are likely to relate to taxes, regulation, employment, debt, payment of invoices, enterprise restructuring, and bankruptcy procedures. (17)

   In light of these findings, it can hardly be argued that the court shutdown is the sole precipitant of the digital transformation. COVID-19 has exacerbated the access to justice crisis, but it is the myriad of hurdles described earlier that have laid the ground for a genuine transformation. As Richard Susskind observes, the COVID-19 shutdown constitutes a huge unscheduled pilot--a great experiment in the use of a variety of technologies in our courts. (18) It is clear that "dropping our current court system into Zoom" does not constitute a transformation, let alone a paradigm shift. (19) While these recent developments should be applauded, we are at the foothills of the transformation. (20) The COVID-19 virus intervened and generated the sense of urgency that triggered superficial innovation under constraints. We quickly moved from a world in which almost all court hearings took place in person to one in which almost all hearings took place online, thus creating an opportunity--whether welcome or not--to embrace technology.

   However, there is a much more significant role that technology can play. The idea is not to support the old ways and digitalize processes that are suboptimal. Regrettably, most of the recent developments do not constitute a transformation. Rather, they have been designed in response to the pandemic and essentially constitute a digital version of traditional courts. Although recent data suggest that the level of satisfaction with video hearings among legal users is high, there have been clear difficulties, including for the elderly those requiring translation, and those with a poor internet connection. (21) Thus, policy-makers and legal technologists must seize the opportunity to accelerate the development of new judicial...