Regulatory reform has come for the U.S. legal services market. In “Enter the Sandbox,” we profile one prominent example—Utah—which has established a “regulatory sandbox” to test the possibilities of loosening restrictions on the types of entities that can provide legal services as well as who may own and invest in them. There are, of course, other examples. On the heels of the Utah Supreme Court greenlighting its regulatory sandbox, the Arizona Supreme Court approved similar reforms to take effect at the beginning of 2021. A number of other states, such as California, look poised to follow in their footsteps in the near future as well.
Now, the American Bar Association (ABA) wants to lay the groundwork for developing consistent quality metrics to better understand which reforms are more effective and why. The ABA Center for Innovation recently launched a new subcommittee to establish “uniform metrics that states could use to measure the effectiveness of new approaches they are taking to regulating the legal industry.” The Practice recently reached out to the ABA Center for Innovation—including Don Bivens, chair of the ABA Center for Innovation; Robert Taylor, head of the Center for Innovation’s subcommittee on regulatory reform and legal innovation metrics; and subcommittee members Zack DeMeola, Amanda L. Brown, and Joey Gartner—with three big questions about their new regulatory reform and quality metrics effort. These questions and the subcommittee’s responses, both combined and individual, may be found below.
The Practice: What is the ABA Center for Innovation’s new subcommittee all about?
ABA Center for Innovation: The Center for Innovation wants to enable legal innovators, to act as a catalyst for necessary legal innovation and reforms, and is not focused on any one reform or concept. There are many areas that can benefit from understanding how to effectively measure the impact of legal innovations. For example, the justice gap in America remains cavernous despite long efforts of many good people and organizations, such as the Legal Services Corporation. In February 2020 The ABA House of Delegates resolved to encourage states to experiment with regulatory innovations aimed at closing the justice gap, and many states are doing just that.
As ABA president Patricia Lee Refo says, “Nothing can be more important to these innovation experiments than carefully measuring their outcomes to see what works best. Once actual data are available, the profession can make reasoned, evidence-based decisions about how to move forward.” As more states begin experimenting, they’re developing their own programs and plans. The ABA Center for Innovation hopes to use its convening power to jumpstart consensus building on standardized data collection across jurisdictions.
Center for Innovation chairman Don Bivens states, “Five years from now, how will we know whether any of these innovations worked to expand legal services to people who need help? The only way to do that is to measure. The best way to make meaningful comparisons of success among different innovations will be to use a common approach to metrics and measurements. That is where the ABA Center for Innovation has taken the lead. We will continue to convene the innovators and talk about how best to measure success.”
The Practice: How are you conceptualizing these metrics? What are they and how might they be used?
Zack DeMeola: “Our goal is to offer states jurisdiction-agnostic metrics that help regulators and innovators understand and compare impacts along the same set of standards—comparing apples to apples. We are still in the process of exploring which metrics can and should be used, but our process involves learning, revising, iterating, and reviewing with the help of experts already doing this work—groups like the Institute for the Advancement of the American Legal System, the National Center for State Courts, and other industry leaders.”
Amanda Brown: “We liken this effort to identifying the vital signs of a legal system, looking for indicators of a healthy or unhealthy system. So, our intent is not to endorse or promote any one innovation or jurisdiction’s approach but rather to offer the tools needed to understand the relative effects of a variety of different innovations, which would in turn allow states to better understand which innovations might be best for their needs.”
Joey Gartner and Bob Taylor: “The efforts should be led through convening and collaboration of experts in the field—a bottom up approach, rather than a decree from the top. We have been learning all we can from a diverse and wide variety of perspectives—from experts in legal ethics, academics, and data researchers, to innovative legal practices and lawyers, access to justice experts, and organizations like the National Center for State Courts and the Institute for the Advancement of the American Legal System. We are still in the process of exploring which metrics can and should be used, but we our process involves learning, revising, iterating, and reviewing with the help of these experts.”
The Practice: What do you expect to see in the coming years in terms of regulatory change across the country? What is the hope for how this committee helps shape that future?
DeMeola and Brown: “The pandemic has exposed the true depth of the access-to-justice gap and many of the industry’s inefficiencies as a whole. Innovation is a matter of when, not if (and for many, it’s now). While we’re not in the business of predicting the future, we’re seeing the profession turn to innovation and data in a way that hasn’t really been done at this scale before. We hope that by convening experts and providing guidance on measuring the real impact of reform, states can compare, contrast, and collaborate to make strides in revitalizing the industry.”
Don Bivens and Taylor: “There is no silver bullet that will close this gap, but we are seeing the profession turn to innovation and data to drive solutions in a way that hasn’t really been done before. There is no better time than now for the ABA to convene experts and provide guidance to ensure that states are no longer in the dark when it comes to whether and how these new ideas can improve the situation and make lasting impact for the better.”
Don Bivens is a partner at Snell & Wilmer, LLP, and chair of the ABA Center for Innovation.
Robert Taylor is vice president and senior corporate counsel for legal ideation & transformation at Liberty Mutual, a governing council member, and head of the Center for Innovation’s subcommittee on regulatory reform and legal innovation metrics.
Zack DeMeola is director of legal education and the legal profession the Institute for the Advancement of the American Legal System, a governing council member, and a member of the Center for Innovation’s subcommittee on regulatory reform and legal innovation metrics.
Amanda L. Brown is founder and executive director of Lagniappe Law Lab, a governing council member, and a member of the Center for Innovation’s subcommittee on regulatory reform and legal innovation metrics.
Joey Gartner is deputy director & counsel for the Center and a member of the Center for Innovation’s subcommittee on regulatory reform and legal innovation metrics.