IEEE Technology and Society Magazine - December 2021 - 39

Chief Justice McCormack observes that the use of
technology, including online dispute resolution, can
significantly improve access to justice. While worries
persist about court technology eroding due process
rights, online proceedings can both decrease default
rates due to failures to appear and increase meaningful
participation [12]. Thus, courts' adoption of
online dispute resolution could greatly improve justice
and the exercise of due process rights.
Likewise, consumer-focused self-help products
and applications could provide basic legal help to
individuals who lack access to lawyers they can
afford. But the introduction of technology in courts
and for self-help by individuals and businesses is
met by skepticism and resistance by many lawyers.
A frequently cited, although sometimes disingenuous,
concern raised by lawyers and regulators is to
question the safety and effectiveness of AI and other
technology tools.
At the root of this problem is the lack of evidence-based
practice and empiricism in law [14].
Law practice lacks defined standards and best practices.
Individual lawyers exercise great discretion in
how they accomplish tasks. Legal-services delivery
is guided by norms, not rigorous evaluation. As a
result, when technology is used to automate or augment
tasks, the legal industry lacks frameworks for
evaluating effectiveness, including the quality of outputs
and the value produced. In this environment, if
regulators or a vocal group of attorneys assert that
the adoption of AI could harm consumers, the legal
industry lacks standards and methodologies for rigorously
evaluating these claims and weighing risks,
benefits, and other objectives.
Standards for evaluating the effectiveness of AI for
legal services would provide needed guidance for
lawyers and other legal-services delivery professionals.
AI effectiveness standards should be designed
to nudge lawyers and other professionals to make
responsible use of technology to better serve clients
and society. Standards will also help them avoid discipline
for violating rules of professional conduct
and reduce their risk of liability when they follow
these guidelines.
Widespread effectiveness evaluations will also
benefit consumers of legal services, from individuals
to corporations. Additionally, legal-services
regulators want to understand how to evaluate and
regulate technology, particularly tools that solve
specific consumer legal problems. For example,
December 2021
Utah has created a " sandbox " for the evaluation
of legal-services technology introduced by innovators.
In 2020, both Utah and Arizona relaxed regulations
that prohibited persons other than lawyers
from investing in or owning law firms, following the
path of reform in the United Kingdom, Australia,
and other jurisdictions. Thus, the governance of AI
used for legal services must consider not only lawyers,
but also other professionals and organizations
that will directly deliver legal services to consumers
in the future. While additional U.S. states are considering
similar changes, many jurisdictions resist
change and demand data, demonstrating the safety
and effectiveness of legal services delivered through
technology, or by anyone other than lawyers. Standards
for effectiveness evaluations would change the
conversation.
Courts, administrative agencies, and other quasi-judicial
organizations also need guidance to make
the best use of technology. Although this article
focuses on the development of standards for the
implementation of effectiveness testing by private
and nonprofit providers of legal services, success in
those sectors would produce benefits for the entire
legal ecosystem. We could anticipate that responsible
governmental organizations would adopt and
contribute to the development of standards, methods
for effectiveness testing, and benchmarks.
Existing legal-services regulations and
law provide a framework for " soft law "
success
The legal industry could prove to be very well
suited for the success of soft law approaches. Most
jurisdictions worldwide afford the legal profession
the privilege of self-regulation. This helps explain
the slow pace of change and makes it unlikely
that lawyers would enact regulations that accelerate
technology adoption, which some lawyers and
professional societies (e.g., U.S. bar organizations)
perceive as a threat to their livelihood. At the same
time, lawyers and other legal professionals are governed
by standards of professionalism, specific rules
of conduct, and other duties to clients and society.
Many of these standards, rules, and duties expressly
or implicitly require interpretation and enforcement
in the context of changes in law, legal practice, technology,
and society. This presents opportunities for
soft law programs to generate principles, guidelines,
standards, and methods that become integrated into
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IEEE Technology and Society Magazine - December 2021

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