The Forward March of Digital Halted: or only checked?

The failure of the Rechtwijzer, the symbol of what was to be the brave new world of mass digital legal services aimed at those on low incomes, raises a question about the future. Were the digital  naysayers right? A recent post from veteran commentator and tireless compiler Delia Venables in her Internet Newsletter for Lawyers widens the concern. She notes that a decade ago ‘there was a strong feeling in the legal profession that selling services and documents online was going to be one of the big features of the future’ … However, far from growing steadily, this sect[or] has struggled to add new firms and, indeed, many of the firms originally doing this have now stopped … There are now fewer than 20 firms … doing this and, in many of these cases, the services offered are very limited in scope.’ So, were the naysayers right and the digital enthusiasts wrong?

Let’s marshall the case for the opposition. The failure of digital will be no surprise to those who say that those involved in most legal disputes need personal assistance. Computers do little to redress the imbalance the power between the weak and the strong beyond giving information. Their second argument would be the impact of digital exclusion – even if computers evened things up that is no help if significant numbers of the population cannot use them. Third, they might point to the fact that governments find it much easier to cut digital provision rather than physical services – observe how the Australian budget cuts mangled LawAccess in New South Wales; our very own Coalition Government shafted the popular NHS Online; and the Dutch Legal Aid Board closed down funding for the Rechtwijzer. Fourth, they might say that computers are not yet anywhere good enough even to raise the kind of arguments that lead to serious litigation. And, finally, they could pray in aid Delia Venables and the fate of the Rechtwijzer to say that people will not pay for digital services – even in routine cases – in enough numbers to make them viable in the absence of government subsidy.

All of which arguments are true. And all of which arguments show the value of a national individualised advice and assistance legal aid scheme of the kind that England and Wales has had for the last thirty years. But which ain’t coming back. So, like it or not, we are forced to explore how access to justice may be protected or advanced by digital delivery of legal services. And, actually, let us admit that it is worse than that. Digital legal services are just part of the overall technological revolution which has the potential to be profoundly unfair on those with lower skills and already lower incomes. Technological advance will widen access to justice by making the poor poorer and the rich richer both within and between countries. Without some intervention, attempts to provide access to justice will be swept backwards.

But the lessons from the Rechtwijzer and the retreat from comprehensive web-based legal services may not be as absolute as they can be portrayed. The Rechtwijzer’s failure does not affect its greatest achievement – showing that web-based information can be given added force by being interactive and, therefore, more individualised. Information providers like the Citizens Advice Service here and CLEO in Ontario are improving their online offering by increasing the accessibility and quality of their information but they are still linear rather than interactive – inert rather than targeted to the individual user. However, the excitement around advice chatbots – and, yes, most of them are pretty basic at the moment – shows that the interactivity encouraged by developments in technology has potential. MyLawBC and the BC’s Civil Resolution Tribunal’s Solution Explorer are still standing as surviving – now leading – attempts to demonstrate the value of an interactive approach to web-based advice. And, of course, we await New South Wales launch of its AI-fuelled Cate Blanchett video advice provision as another approach to interactivity..

We need to follow the fortunes of these innovations with care. After all, there would be nothing unexpected in recognising that:

  1. the failure of the Rechtwijzer may reflect individual rather than general circumstances (it was a potentially unwieldy three way partnership between a technology company, a research centre and a legal aid board) and the paucity of large volume online providers in the legal profession the failure, as yet, to find a workable commercial business model that can be grafted onto that of an existing legal business (it might be different if starting from scratch);
  2. creating effective assistance on the net – through websites, bots or other interactive mechanisms – actually takes the manipulation of very practical, specialised and detailed knowledge which is not easily spread by one organisation throughout a whole number of different topics. Specialist providers may move to the front line of developments. It is notable that the Rechtwijzer successor is to be focused completely on divorce whereas the original aspiration had been to widen coverage out over a number of areas; and
  3. the best way of seeing digital may be not as an alternative to physical services but as a way of leveraging and extending their value.  Advice agencies might, for example, profitably start to ask how they can increase their effectiveness by supplementing their face to face statistics with those to whom they were able to give digital assistance. That is effectively the direction in which the Citizens Advice Service is going. The Dutch may well also fall back on more use of their physical law counters and less on technology.

So, it seems likely that what we learnt from the Rechtwijzer’s stumble and Delia Venables’ observation is that deploying services digitally ain’t easy rather than doesn’t work. The way forward may be to look at incrementally developing specific services in specific situations for specific cases as a decentralised series of advances which are integrally linked to physical provision. No harm in that. There is a role here for targeted and strategic funding by grant-giving bodies. And this is good moment for some technologically orientated agency or business to pick up the ball and show us what can be done. There is no doubt that the loss of the Rechtwijzer as a standard bearer – and, very concretely, the loss of the enthusiastic and tireless ambassador/salesmen that its sponsoring institutions sent out throughout the world – will slow the adoption of interactive web-based assistance. And that is a real loss. But, its demise is nowhere near the last word on technological developments in the field.

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