Posted by: Ray Brescia | October 27, 2014

The Innovator’s Opportunity: Disruptive Technology and Access to Justice

If we are to believe the hype about companies like LegalZoom and Nolo, entities that are providing low-cost services that look a lot like lawyering, the legal profession is in the midst of a disruption: a monumental, transformative shift in shape and focus that will change the practice of law forever.  Harvard’s Clayton Christensen has coined the term the “Innovator’s Dilemma” for the phenomenon of business disruption through which high-end producers of goods and services are “disrupted” by those entering the market on the lower end.  At first, incumbent companies ignore the new entrants until it is too late: when those insurgents slowly develop market share from the bottom up and displace the incumbents.  One example of this is the downfall of Blockbuster at the hands of Netflix.

Much of the focus of the impact of these disruptive companies is on their potential ramifications for Big Law: the large firms that serve the high end of the market for legal services.  But if Christensen’s theory of business disruption is to be believed, true disruption of the legal services industry is likely to come from those serving the “lower end” of the market: the solo practitioners, legal services lawyers, and “low bono” providers of legal services.  It is innovation in these corners of the market where path breaking disruption will take place, mostly out of necessity.  What’s more, it is the low end of the market that is actually quite robust: i.e., there is a desperate need for legal services, just an inability to pay for them.

In a recent article I co-authored with several of my students, Embracing Disruption: How Technological Change in the Delivery of Legal Services Can Improve Access to Justice, which is forthcoming in the Albany Law Review, we look at the ways that disruptive innovation in the legal market can expand the reach of legal assistance to the many who presently do not have access to a lawyer: the eighty percent of low-income consumers and fifty percent of middle-income consumers who face their legal problem without legal assistance.  Given the need in low- and moderate-income communities for affordable legal services, perhaps disruption in this market has its benefits: at a minimum, it offers a way to improve access to justice for communities and individuals under served by the present—and expensive—modes of delivering legal services in the United States.  This article explores those benefits, but also highlights some of the concerns that arise when technology is used to improve access to justice.

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