New York Chief Judge Jonathan Lippman held a series of four hearings around the state this fall to discuss the unmet civil legal needs of low-income New Yorkers, as part of an ongoing civil legal services initiative that he has undertaken since being appointed.  Pro Bono Net co-founder Michael Hertz, now Chief Marketing Officer at White & Case and a member of Pro Bono Net's board, presented at the Oct. 3, 2011 hearing at the New York State Court of Appeals in Albany.  His testimony is reprinted below.

Thank you, Chief Justice Lippman and members of the panel, for the opportunity to speak today on the topic of technology and its important role in expanding access to justice.

My Background

My name is Michael Hertz, and in 1988 I graduated from Columbia University, School of Law and started my career in New York as an associate and then a litigation partner at Latham & Watkins. In 1998 on a leave of absence from my practice, I co-founded and then ran a new non-profit organization called Pro Bono Net which uses innovative technology and collaborations to increase access to justice. In 2005, I moved to London to join Freshfields Bruckhaus Deringer, a London headquartered global law firm and served as the firm’s global Chief Knowledge Officer. The mission of the knowledge management function at a firm like Freshfields is to ensure that the firm’s lawyers across a global network could work together efficiently and effectively and included significant work with technology that could support collaboration and knowledge sharing. I recently returned to New York City with White & Case and am responsible for all client-related initiatives and programs across the firm including client-facing technology.

How Technology Can Expand Access to Justice

In my experience in the private law firm and non-profit legal sectors, I have seen the immediate and direct impact that technology has had on the practice of law. When I started practice in 1988, there were no personal computers on the lawyers’ desks. I was given a Dictaphone. Then came voicemail, email, listservs (a type of group email that were and still are used extensively by lawyers) and in the mid-1990s the advent of the worldwide web which supported new ways of collaborating and sharing knowledge. Today we are witnessing a second wave of web-based tools – frequently referred to as social media and Web 2.0. These new tools -- which continue to lower the barriers for sharing information -- include blogs, wikis, Facebook, Twitter and YouTube among others. In addition, mobile technology is having an enormous impact with lawyers now able to access significant resources with a phone or tablet like the iPad.

These technologies have significantly changed the way law is practiced, how services are delivered and how lawyers work together. It has changed how lawyers conduct research. It has changed how lawyers access training and leverage the power of their law firm’s network or a larger network of advocates in the case of Pro Bono Net and the many active listservs within the legal services community. It has changed how lawyers work together as teams. And in the case of legal aid and access to the courts, technology now allows us to reach hundreds of thousands of people with information that can help them find a lawyer, create a form for the court and educate themselves about their rights and the process for protecting these rights.

Because of the importance of technology to the practice, significant investments are now made every year in building new tools and updating the existing tools. Technology is now seen as an essential building block of the modern law office. For example, according to industry experts like Hildebrandt-Baker Robbins, Information Technology (IT) spending as a percent of gross revenues for large law firms during 2007-2009 ranged from 3.0% to 5.7%. IT spending per lawyer for firms ranged from $16,000 to $40,000 in this same time period. According to the Legal Services Corporation (LSC), federally funded legal services programs are spending significantly less per lawyer, approximately $7,000 per lawyer. The difference raises serious questions about whether the legal aid groups can dedicate enough investment in technology under current circumstances. The level of legal aid spending on technology is worthy of further investigation, as are ways to maximize the budgets that are available.

Despite having far more limited resources than the private law firms, the legal aid sector in New York has distinguished itself in regard to the use of technology to increase access to justice and the creation of innovative collaborations among programs to build new tools that can be used to reach far more people. Below are examples of technology tools and programs that have been developed in order to increase efficiency, to ensure quality and effectiveness and to reach many more people than is possible without technology innovation and investment.

1. EFFICIENCY

There is a range of technologies that allow attorneys to do much more in much less time. These range from hardware such as personal computers and cell phones, to software such as Outlook and other office technologies, donor databases and financial software, document and case management systems, intranets and internets, broadband, phone systems, etc. These are the fundamental building blocks for a modern, well-run organization and it requires an ongoing investment in new systems and software. Legal aid groups obviously struggle to support these ongoing investments in core technologies that allow their lawyers to work as efficiently as possible.

Limited resources, however, have not stopped the legal aid community from developing applications to drive efficiencies and suit the particular needs of providing civil legal services to the poor. For example, case management and practice management software have become essential components of well run legal practices and deliver significant efficiency gains. This software helps keep track of thousands of cases from intake through resolution. Unfortunately standard commercial applications did not meet the specific needs of legal aid organizations. In response, in 1993 the Western New York Law Center (WNYLC) created and released the WNYLC TIME software, a case-management system created specifically to meet the needs of legal services organizations and the demands of its funders for specific reporting requirements. The TIME system created an integrated and comprehensive workflow from intake to matter resolution that captured client information that was essential for eligibility determination, case assessment, deadline management, and case closing information required by major funders including the Legal Services Corporation and the IOLA Fund. The TIME system is used by legal services organizations throughout the state, and has been adapted for use in other states as well.

The creation of the TIME system, which is continuously updated to meet changing needs and demands, has allowed New York’s many legal services programs to access a case management system that meets their needs without each program investing in separate research, development and implementation of such a system.
Today, organizations continue to explore the ways technology can enhance efficiency. Legal Assistance of Western New York is currently piloting efforts to implement an online intake system that will further expedite information gathering and eligibility assessment, while allowing low-income New Yorkers to initiate the intake process at any time. In addition, LawHelpNY and Pro Bono Net continue to explore using online document assembly technology to expedite the process of preparing legal forms and pleadings, allowing legal aid attorneys and other non-legal advocates to serve more clients in less time.

2. EFFECTIVENESS AND QUALITY

Internet technology has created unprecedented access to information and has created new channels of communication that enable collaboration among lawyers and other advocates. A range of technologies now exist that allow lawyers to access the collective knowledge of hundreds of advocates and essential training and best practice. These technologies are critical to maintaining the effectiveness and quality of the services delivered by legal aid staff and pro bono lawyers.

In 1999, Pro Bono Net launched websites that provide the pro bono and legal aid community with online libraries of training materials, sample documents, and practice tools created by leading experts from the civil legal services community. In 2010 Pro Bono Net New York had nearly 50,000 unique visitors, and had over 4 million page views, or an average of nearly 11,000 per day. And in 2000, the Greater Upstate Law Project (now the Empire Justice Center) created a website that provided access to in-depth research and resources for legal services staff. In 2010-11 the Empire Justice website (www.empirejutice.org) had 56,200 unique visitors and over 4.1 million “hits” on its information or an average of 11,300 per day. Annual visits to the website now top 3.6 million or an average of 9,900 per day.

The impact of these technologies on the quality of the service that is delivered is difficult to measure but it must be significant judging by the investments that private firms make in similar technology platforms. Likewise, video recording and online video streaming have allowed the creation of online repositories of recorded expertise, training and knowledge that are accessible by advocates day or night, from anywhere.

The Western New York Law Center, as the technology backup center for New York’s legal services program, currently hosts a number of substantive law “listservs” as a way of facilitating peer-to-peer networking between and among legal services staff. These well-used electronic communication systems allow new advocates to post case related questions, give experienced advocates a way of easily collaborating on more complicated cases, and offer the community as a whole a way of connecting and learning from each other in their day-to-day work.

As a way of expanding the resources available to front-line legal services staff, WNYLC and the Empire Justice Center have also created a number of on-line resources for the community, including the Fair Hearing Bank which currently makes over 2,900 searchable decisions and related information available to its 3,400 registered users. The Public Benefits database current has decisions, pleadings, briefs and related materials in over 700 cases available to 937 registered users. Given the unique nature of poverty law, these are resources needed by the legal services community that are simply not available in and created by the private market.

The Online Resource Center had 1.1 million page views in 2010-11 calendar year and 431,000 visits, an increase of 10,000 visits from the prior year. This data is separate from and in addition to the statistics for the use of the Empire Justice Center general website. Again, this is an area where targeted investments in the creation of communitywide resources have been an effective and powerful use of limited resources.

All of these tools are critical to ensure that legal aid advocates are properly trained and supported so that they can practice at the highest level possible. Likewise, providing volunteer lawyers easy access to training, experts and online libraries of practice materials and templates go a long way to lowering the hurdles to participation by private attorneys – thereby increasing volunteer contributions -- and ensure that these efforts are effective in helping low income clients.

3. INNOVATIONS TO EXPAND THE REACH OF LEGAL AID

The gaps in the unmet needs for civil legal services are enormous and require innovative solutions. One approach which has gained traction is to develop programs that use technology to extend significantly the reach of existing legal aid groups and advocates. These programs change the way services are delivered and accessed.

So whether it is bridging the hundreds of miles between a client in a rural area and a legal advocate in a city or providing access to information for non-English speakers or low literacy individuals, new programs are now coming into place that greatly expand access for these populations.

The best example of this today is LawHelp New York --www.lawhelp.org/ny -- an online resource that helps low-income New Yorkers find free legal aid programs in their communities, answers to questions about their legal rights, court information, links to social service agencies and more. Coordinated by a consortium of dedicated advocates from legal services organizations across the state, the visits to LawHelp New York are now approaching a half million every year. See the chart below.

 

Moreover, the LawHelp New York Consortium has worked hard to expand access for non-English speakers. For example, the site now has resources in 37 languages. In addition, the participating programs have developed a feature called “LiveHelp” -- a text-based chat service that integrates with LawHelp New York and allows volunteer "operators" to guide visitors around the website. LiveHelp seeks to support people who visit the LawHelp website, are eligible for legal aid, but suffer literacy and language challenges. The program also makes innovative use of non-legal volunteers -- law students and lay volunteers – who serve as LiveHelp “operators.”

Online document assembly technology also plays an important role in increasing access to the courts. The New York Courts' Access to Justice Program has created numerous Do-It-Yourself online court forms hosted on the court's website that have allowed unrepresented low-income New Yorkers to use a guided, interactive interview to learn about the legal process and generate appropriate court forms for family law, trusts and estates, consumer debt, and housing cases. In the 2nd quarter of 2011, nearly half of the total recorded petitions to vacate a default judgment in a consumer debt case filed in the New York City Civil Courts were generated using the Court’s Do-it-Yourself forms. The New York Courts also has a new initiative to make the process of petitioning for an order of protection much simpler by implementing electronic filing for these petitions in Family Court.

Technology can also be used to increase the ability of legal services and pro bono programs to deliver assistance to rural communities, by effectively bringing rural clients and attorneys based in urban centers together. One program that is being developed in partnership with the courts in California will use document assembly technology to allow advocates to assist domestic violence survivors in rural areas to prepare petitions, which will then be transmitted to and reviewed by city-based legal services or pro bono attorneys prior to filing. Another initiative in California’s Central Valley will enable law student volunteers in urban settings, supervised by a legal services attorney, to staff rural virtual law clinics using video chat.

RECOMMENDATIONS FOR FURTHER INNOVATION

The programs and tools mentioned above have been developed with funding from many different sources and through collaboration among the various parts of the access to justice network in New York State. Their reach – while significant – only scratches the surface and the potential to substantially increase access to critical information and services continue to be enormous; however, additional and reliable investments are required.

Here are a number of suggestions:

• Conducting research into the IT investments made by legal aid groups and private law firms, the technologies that the legal aid groups need to fulfill their mission and the potential creation of standards and best practice.
• Continued development of resources in efforts to improve internal efficiencies within legal services programs and to expand the external reach of programs and services to those in need. This could include expansion of efforts to bridge language gaps, continued innovations to reach hard-to-serve populations, including those in rural areas, and expanded use of technology to assist legal services staff in their work, including access to emerging technologies.
• The state courts and legal aid groups – taken together – have significant purchasing power when it comes to hardware and software. With leadership from the state courts and legal aid groups, and standards in place, courts and legal aid groups could maximize the return on their investments in the core technology and tools that each organization needs.
• Finally, in order to insure that innovation continues, the state should explore establishing a New York State version of the Technology Initiatives Grant (“TIG”) program that has been in place for a number of years through LSC. The TIG program has made grants of approximately $3.5 million a year for each of the last 12 years. Through relatively small investments, LSC has been able to provide the seed capital for an enormous amount of innovation. This program should be reviewed to see whether a similar model should be established in New York State.

Thank you again for inviting me to provide input to the Task Force.