Covid 19, technology and access to justice – Part 2 – changes to the service model

The first response of access to justice organisations to Covid 19 was to accommodate to the immediate closure of offices and the internal demands of the remote working of staff. That was covered in a previous post. This one covers the potential long-term effect of Covid 19 if it creates a ‘new normal’ where organisations begin to change their relationship with their users. Both of these responses are not unique to access to justice – they mirror changes that are happening in the economy as a whole. Both of these contributions are an attempt to bring together individual developments detailed elsewhere into greater coherence.

The surrounding environment

Let’s look first at the environment in which we are all going to have to live. A reasonable guess of minimum duration of the pandemic seems to be at least two years. No vaccine is going to ride into town to save us like Clint Eastwood in so many a movie any time soon. Around the world, the detail will be different depending on demography, the variable competence of governments (God help those of us in Brazil, the US and the UK), and the vagaries of science and the virus. 

But, there is likely to be a common experience of disruption – probably even in global governance winner New Zealand. Everywhere, there will be spikes of infection; the reimposition of restrictions, like that currently in England’s Leicester or Australia’s Melbourne; continuing fear among staff and users alike of face to face contact in enclosed spaces; and a widespread shift to using the net as already manifest in shopping (Forbes reported in May that, prefiguring a global future, more than half of all South Koreans, aware both of Covid and the legacy of MERS, used their smart phones to order food and drink in March of this year) and, soon to be equally visible, education. 

Unemployment – and consequent poverty showing up as problems with matters like welfare benefits, debt and housing – is likely to be ferocious over the same period. For the UK, the Bank of England has said that ‘the “plausible illustrative economic scenario” for UK growth and jobs … could [mean that] unemployment more than double[s] to around 9% [and] Britain is likely to be living with a legacy of high unemployment for some years to come.’ The Bank has made some political assumptions: the ‘latest assessment of the economic outlook also included an orderly transition to a comprehensive EU free trade deal next year.’ Good luck with that. But, whatever you think about Brexit or the Bank of England’s unemployment estimates and whatever country you are in, unemployment is going to rise dramatically. More people are going to want help with the problems that unemployment brings in its wake – benefit disputes, mortgage arrears and rent arrears, evictions, debt and so on.

Much provision of legal advice for people on low incomes – both in the private and public sector – has traditionally been based on face to face services and community networks of human beings in person. The first response of agencies has been to transfer communication as much as possible to telephone and video. Most agencies are continuing simply  through phones. For those still using – or beginning to return to – an office, thought will have to be given to protection measures such as see-through grills; the wearing of masks and the decontamination of documents; the elimination or diminution of the use of internal waiting rooms. Use of drop in services is likely to be constrained. You need an appointment even to return books to my library in London.

Changes in service delivery

All the above is going to accelerate a shift to information and assistance provided on the net to which people can be directed or find by themselves. For all the problems of digital exclusion, this move has already begun. For example, the Citizens Advice Service in the UK has been in the process of shifting information online to relieve the pressure on its traditional advice bureaux. Other jurisdictions have similar digital offerings. For example, there is the Steps to Justice programme of CLEO in Ontario or Illinois Legal Aid Online in the US. The latter has a Question and Answer front page which allows a degree of dialogue in identifying your problem. 

Guided Pathways and Chatbots

A site like MyLawBC takes the provision of online information one step further in terms of using guided pathways to take the user through information with a Q and A approach. This makes an interesting comparison with a ‘flat’ two dimensional approach. This curated approach to information seems likely to grow because it begins, at least with the user and then fits the relevant information to their individual need. Agencies are likely to explore how better they can tailor information to users in a more interactive way.

There are likely to be opportunities here for agencies that wish to deflect queries for  users sufficiently adept at using the net to a website that can answer their query. A final report of the recent Legal Access Challenge in the UK recorded that half of the proposals which had received ‘involved an element of tailored guidance, for example supporting users to understand their rights and the options available to them.’

Guided pathways lead on to the rather more vexed issue of chatbots. We clearly need to explore their potential role in expanding services. It is worth looking at Chicago’s Rentervention as an example of how a chatbot can be portrayed as ‘a Chicago tenant’s best friend’. And, if your taste is more commercial, you can check out the phenomenon that is Joshua Browder and his ever-widening Do Not Pay suite of apps. This makes a number of claims summarised on its app page: ‘How does it work? FIGHT CORPORATIONS: let us know your problem and we will contact the corporation for you. Never have to waste hours on the phone again! BEAT BUREAUCRACY: appeal your parking and traffic tickets and have government paperwork (DMV, SSA, TSA etc) completed automatically. FIND HIDDEN MONEY: even if you don’t have a problem, DoNotPay can analyze your accounts to find hidden money. For example, bank fee refunds. SUE ANYONE: owed more than $500? DoNotPay allows you to generate demand letters, court filings and even a script to read in court to get your money back.’ 

Some of the DoNotPay claims can be subjected to a degree of nitpicking. But Joshua Browder poses a real question for access to justice. Will his development of a guided pathway into an interactive chatbot approach become attractive to users? He is certainly getting serious funding and last month announced the raising of a further $12m funding from experienced Silicon Valley investors. They think he has got something. And his ‘start-up is now worth an estimated $80 million (£63.6 million).’ It is true that the most sophisticated advice chatbot in the world, Nadia, with all her apparent emotional interactivity and the soothing voice of Cate Blanchett, did not make it. Australia’s National Disability Insurance Scheme called time on its project. She was hailed as a ‘gamechanger’: she wasn’t. But Mr Browder’s brash and less ambitious bots well ultimately show a way forward for the automation and transformation of digitally provided information. Someone, somewhere should certainly be exploring the possibilities. Mencap’s chatbot was, after all, one of the winners of the Nesta challenge.

Self-assembly documentation

Less ambitious –  but still in the field of the interactive provision – is an increase in the development of self-assembly documentation. Here, the US is way ahead of the field – particularly the UK. Yet there are signs even in the UK of interest. The second largest grouping of proposals (a quarter) in the Nesta challenge related to document automation. Somebody in the UK needs to do a deal with A2J author which dominates the US public legal services market for self-assembly documentation. This is ‘is a cloud based software tool that delivers greater access to justice for self-represented litigants by enabling non-technical authors from the courts, clerk’s offices, legal services organizations, and law schools to rapidly build and implement user friendly web-based document assembly projects.’  It is produced by CALI, the Center for Computer Assisted Legal Instruction— there are multiple youtube videos showing you how this works. Basically, the user is asked around half a dozen questions in a visual sequence as they move towards a court house. The programme then produces a document in the appropriate form. The idea is infinitely customisable. 

In the UK, we have had limited experiment with document self-assembly. We have nothing so impressive. But there are now a number of British versions of self-assembly appeal, claim or review letters for a problematic but important benefit known as a Personal Independence Payment.  These are published by CPAG, a small south of England organisation known as SeAp and AdviceNow. In addition, legal publishing behemoth Lexis Nexis has  announced on July 13 the availability of a ‘Simplified Personal Independence Payment (PIP) form, a digitised version of the Department of Works and Pensions’ (DWP) paper-based, handwritten and highly complex PIP form for disability claims in the UK’. 

There will be other developments that are worth exploring over the forthcoming months as agencies are inspired to use their creativity to overcome the restrictions imposed on them by the virus. One step beyond self-assembly documentation is the development of platforms and programmes that assist litigants through the process of resolving their claim. This is the approach taken by Citizenship Works in relation to immigration cases in the US.

Legal Empowerment

Integrally linked with any of the particular experiments with innovation is a philosophy which deserves more exploration in jurisdictions which have hitherto paid little attention to  it. Traditionally, you could see the legal provision for those on low incomes as provided within two different philosophical or political frameworks. The dominant model, followed in the jurisdictions of the UK, is to see such assistance as a public service in which public payment replaces private. That was explicitly the idea behind legal aid. It is precisely why it was advanced by the Law Society after the Second World War. But there is a contrasting – or, at least, complimentary – approach which may be needed to meet increased need with reduced (at least relatively) resources. There is centred entered around the notion of legal empowerment and often associated with developing countries and paralegal provision – as represented by bodies like Namati, the Open Society Justice Initiative or HiiL.  Jurisdictions that never had legal aid in anything like adequate levels, like the US, are much more familiar with positive assertions of the value of doing it yourself and opened up the process of developing hybrid forms of approach like unbundling by which expensive legal services can be eked out with a degree of free empowered self-assistance.

Concepts of legal empowerment are a powerful element of the ideas of public legal education that are so much better implanted in the US and Canada than the UK. An example in the UK of an organisation with the same philosophy would be law for life. And, whether produced by them or others, one might predict a range of initiatives using legal empowerment as an overall concept. 

Strategy, co-ordination and  networking

There is going to be unprecedented incentive for agencies to collaborate, network and develop common strategies and learnings. What are the successful ways of increasing a digital presence while preserving physical assistance for those who will need it? If someone develops a good self-assembly documentation programme, how can others learn about it? Before Covid 19, the transmission of such information was somewhat  hit and miss. It was dependent on largely national networks like those of the Self-Represented Litigants Network or Legal Services Corporation in the US or the Litigants in Person or Law Centres Networks in the UK. 

Covid has actually given a boost to national and international liaison through zoom or other similar products. Legal Geek’s annual conference in October, traditionally held in London, is going online. The ABA has just announced that its popular annual Techshow, usually held in Chicago in March, will ‘reboot’ as a virtual conference. The International Legal Aid Group, which usually meets biannually and was due to convene in Australia next June, is about to announce that it too will go virtual. Recently, agencies operating in the South West of England met virtually with others from all over the country. In the US, the Self Represented Litigants Network holds regular video gatherings. We have a proven way in which people can come together nationally and internationally (technology abolishes the difference). That might just be the way in which agencies both national and international can feel their way to swapping experience and building up a shared understanding of what works and what should be explored. That might mean that we could begin to explore, at the very least, a shared analysis; a set of priorities; and likely candidates for exploration (in much the same way as is happening in the more co-operative areas of research into a Covid vaccine. 

And overall?

So, overall what can we say? Well, to be honest, the future is pretty bleak. People we know will be taken sick and some may die. Poor people and those of colour  will suffer worse. The economies of all countries will be battered. The world will be a less attractive and more scary place for us all. People will struggle to get help in resolving their increasing legal problems.

But there are positives. We should not gild the lily too much. But you can see ways in which technology could maximise the power of people to deal with their legal problems. Our task in the next few months will be – both at a national level and and international one – to explore, document and share what can be done.

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