The Momentum Picks Up: a summary of technology and access to justice developments in the last quarter of 2016

LEF014 Winter Update_AW

A review of developments over the last quarter of 2016 shows how the momentum of technological developments in the services of access to justice is picking up speed.  Seven themes emerge that are helpful in making sense of what is happening around the world. This is the most recent of a series of annual and quarterly reports available on the Legal Education Foundation‘s website. The next extended publication will be an annual review planned for April. Any thoughts would be welcome.

Artificial Intelligence

The potential importance of artificial intelligence (AI) to the practice of law is becoming more apparent by the day as, indeed, is its potentially transformative effect on the economy as a whole. Articles pour out on its implications. The period saw reports from a committee advising the President of the United States on the general application of AI and a commission established by the American Bar Association looking at the effect of new technology on law which also considered AI. As yet, there may be little direct application of AI in the field of legal services for those on low incomes – for all that there is increasing use of guided legal pathways as, for example, in MyLawBC or in various use of ‘chatbots’. All of these currently lack the crucial element of AI, the capacity for self-learning by the computer programme. Nevertheless, the indirect effects of the development of AI are likely to impact on legal services for those on low incomes in various indirect ways – through, for example, a potential reduction in the number of commercial lawyers and a consequent diminishment in the pro bono assistance which is obtainable from their sector of the profession. There may well be direct impacts as well, for example in relation to how AI transforms legal research – particularly in common law, precedent-based jurisdictions.

Online Dispute Resolution

ODR or online dispute resolution has advanced significantly during the months under consideration. A report on civil justice in Northern Ireland took a rather cautious view of developing an online small claims court but no such inhibition has restricted progress in England and Wales.  A final report by Lord Justice Briggs in July (Civil Courts Structure Review) was followed by the announcement of a gung-ho response from the Ministry of Justice, supported by the Lord Chief Justice and the Senior President of Tribunals, in September. England and Wales is driving forward to an online Small Claims Court. Meanwhile, the Civil Resolution Tribunal in British Columbia, a potential prototype that will expand its jurisdiction into small claims from ‘strata disputes’ next year, has heard and published its first case – albeit, and perhaps frustratingly for those concerned, one which does not really showcase its online capabilities. A major conference, Law and Courts in an Online World, was held in Melbourne with a host of international speakers in November – an indication of the widespread attraction of bringing ODR within the existing court structures.

Developmental Progress

There is considerable steady progress on innovative programmes which have developed during the year. MyLawBC is now functioning. The Rechtwijzer is establishing itself. In England and Wales, CitizensAdvice is revamping its website so that it can become a multi-channel source of information and, in the process, has added an innovative and interesting facility to watch the use of its site in real time. Below are additional examples from the US, Canada and Australia – Illinois Legal Aid Online, the use of A2J software in Ontario’s legal clinics and Robot Lawyers in Melbourne.

The standard and evaluation of new initiatives

The issue of the standard and methodology of new initiatives is difficult. On the one hand, there is one enormous amount of enthusiasm for the application of technology to increase access to justice. Hackathons to develop apps within short periods of time have been held in many of the major tech centres around the world from The Hague to Toronto. In addition, a wide range of developers, many of them students, are actively pursuing ideas and innovative approaches. Understandably, journalists wish to encourage them and there is a temptation for uncritical reporting of their achievements. Just occasionally, there are examples of agencies prepared to be brutally transparent in their assessment of a new product. A good example is provided by Victoria Legal Aid in relation to an app that it helped to develop on age requirements. It is becoming clear that we need to develop standards, where appropriate on an international basis, by which we can evaluate the success of innovative products without unduly diminishing the commitment of the thousands involved in their development to give their time, energy and expertise.

Technology and Legal Education

The application of technology to legal education is beginning to emerge as an issue. Ontario is experimenting with a legal practice training which is largely online. The high cost of legal training (and the growing uncertainty of subsequent employment) is precipitating calls for ways in which qualification might be made affordable. That is raising issues about regulation and examination (as in England and Wales where the Solicitor Regulation Authority is proposing a new Solicitors Qualifying Examination to replace expensive mandatory training requirements) and the use of technology as in the pilot at Ryerson University in Toronto.

Leadership

Finally, there is the ticklish issue of strategic leadership. Technology is collapsing previously separate fields. It used to be just about possible to discuss court reform separately from other access to justice issues such as online legal information and advice prior to issue of proceedings. This no longer really makes sense. No one agency or institution entirely fits the role. A number of jurisdictions, particularly in North America, have developed Access to Justice Commissions of one kind or another, often with judicial leadership. Independent legal aid administrators, such as Victoria Legal Aid can bring together the major players. Courts and judges can play a role – as in England and Wales where the Civil Justice Council, chaired by a judge, has sought to extend its role to access to justice more widely. In appropriate circumstances, it could be a Ministry of Justice that takes the initiative to develop holistic provision. The American Bar Association has tried to fill the gap with its newly created Centre for Innovation based in Chicago. In its opening announcement, this is clearly seeking to span the court/legal practice divide: ‘One of its first initiatives will be assisting with a court-annexed online dispute resolution pilot program in New York.’ Coherent leadership over the whole of access to justice may be practically impossible but this review is part of a process of seeking less ambitiously just to decipher and pull together what is going on at a time of breakneck speed of developments.

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