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Excerpted From: Sherley E. Cruz, Coding for Cultural Competency: Expanding Access to Justice with Technology, 86 Tennessee Law Review 347 (Winter, 2019)(320 Footnotes)(Full Document)

SherleyCruzWithout legal assistance, the rights of many low-wage and immigrant individuals go unenforced. In employment discrimination cases, for example, self-represented litigants are more likely to lose their case due to insufficiencies in the pleadings and inability to present legally relevant facts than litigants represented by counsel. They are also less likely to settle matters quickly or receive settlements as large as litigants represented by counsel. In landlord-tenant cases, tenants represented by counsel are more than twice as likely to defeat an eviction case than tenants without counsel. While not a substitution for counsel, legal technological innovations can provide significant assistance to self-represented litigants and guide litigants to appropriate legal help.

Technology is expanding access to justice by helping individuals spot legal issues using mobile applications. These applications facilitate the exchange of information and documents through virtual client portals, assist self-represented individuals with the drafting of legal documents using chatbots, and allow for virtual interviews guided by artificial intelligence. Lawyers are using technology to make the practice of law more efficient, more affordable, and more accessible. In fact, over the last decade, the legal profession has turned to technology as a way to help increase access to justice for individuals who cannot afford private attorneys.

Each year, millions of federal grant dollars are dedicated to supporting technological developments that aim to increase access to justice. In 2017, Legal Services Corporation (LSC), the largest funder of civil legal aid programs for low-income Americans, funded access to justice projects in twenty-two states by awarding Technology Innovation Grants (TIGs) to twenty-five different legal aid programs. For example, Legal Aid of Hawaii received a $102, 103 TIG grant to translate the statewide website into three different languages with the goal of increasing the website's capacity to support the states' growing population of limited English speaking residents. Florida's Bay Area Legal Services also received $136, 705 in TIG funds to make its website more accessible to disabled clients, as well as more mobile-user friendly.

Despite the promise of technology and the funding available for it, there is real potential for serious pitfalls if the technology is not implemented thoughtfully. Can legal technological solutions provide access to justice if the technology does not take into consideration cultural differences such as language, literacy, communication styles, and access to technology? Without culturally competent design considerations, does technology provide all individuals with meaningful and quality user experiences?

Worse yet, what if the technology places the user's privacy at risk or promotes implicit biases because the design did not consider the diversity of end users or the stakeholders? Recent studies have shown that artificial intelligence programs may reinforce implicit biases. Innovations like chatbots--which are meant to assist, inform, and resolve issues--may unintentionally frustrate, misinform, and harm the end user if the technology does not consider the end user's cultural barriers and preferences. This Article identifies some of these risks and offers culturally competent design principles to help avoid them.

This Article examines the intersectionality of cross-cultural competence theory and access to justice theory to demonstrate that successful use of legal technology inextricably requires legal professionals to incorporate culturally competent designs. Part I provides a brief history of how technology became a tool to increase access to justice and introduces innovative ways that the legal profession is implementing technology to help close the access to justice gap. As part of the overview of how technology is expanding access to justice, this Article also identifies unexpected adverse results of innovations that are implemented without regard to the diversity of the end users. Part II briefly introduces cross-cultural competence theory and discusses why attorneys and technology developers must consider culturally competent design when developing legal technology. By way of example, Part II reviews statistics and data about how the Latinx community--the largest minority group in the United States--is using technology to gather information and seek advice. It also examines the extent to which Latinxs use technology and barriers the community faces in this use of technology. Part III then connects the concepts of culturally competent design with access to justice to identify user experience and technological design principles that will make legal technology more meaningful, while also avoiding potential pitfalls that may arise if technology is implemented without regard to cultural differences. By melding technology and cultural competency theories, this Article demonstrates that culturally competent design is not only possible, but necessary to ensure social justice and help close the access to justice gap.

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Technology is increasing access to justice throughout the legal profession and diverse communities throughout the U.S. are using technology with more frequency to access legal services. Meaningful access to justice, however, requires that legal professionals work with legal technology designers to learn the preferences, values, and barriers of the audience, in order to create technological innovations that will benefit diverse end users. Legal technology that does not take diversity into consideration will not only be ineffective, but it may also cause harm to already vulnerable communities. By applying cultural competence theories and concepts to legal technology design, the principles presented in this Article demonstrate that culturally competent designs can make legal technology more accessible, avoid negative results, and provide meaningful access to justice to a larger community of end users.

Practitioner in Residence at American University Washington College of Law.