This piece addresses the following question: what are the separate components of any system or structure of assistance designed to provide access to justice which might help in categorising technological innovation? Access to justice is generally a rather slippery term. Indeed, it has probably become so popular particularly because of its potential fudge between a commitment to substantive fairness and the less ambitious goal of procedural justice. However, we may be able avoid these difficulties in applying the term as the goal to the provision of legal and advice services – though we should bear them in mind.
Why might we want to take on this task?
Because if we could do it satisfactorily, we would have one axis against which we could plot emerging technology projects against the other axis defined by the different forms of technology. These might include, for example, documentation automation, chatbots, forms of AI or guided pathways. Some projects would appear more than once in the grid since they use different technology to assist at different parts of the process. For example, a project might give information and provide interactive self-help document completion or skills/assistance in resolution. No problem with that . You would just get a multiple entry.
If it proved useful, the resulting grid might allow us better to understand what is going on and facilitate bringing together developments in different jurisdictions. More dynamically, it might prompt us to look for gaps that could be filled or links that might be made. Someone has done this in relation to housing disrepair, why won’t in work for a case of racial harassment?. A project in South Africa has done this, why can’t we in England?
There are two points to note before proceeding.
First, to be useful, the number of divisions needs to be containable. The axis cannot get too unwieldy.
Second, this is an exercise that is not without its own incursion into politics: there are differences of purpose between three groups: those espousing a philosophy of legal empowerment and the consequent transfer of skills and power; those who see themselves as providing public legal education – not necessarily so challenging; and those who perceive themselves as providing a service in the way conventional to legal practice. To circumvent any difficulties (or, as the lawyers might say, ‘without prejudice’ to that), the best taxonomy would allow for all three.
This first attempt is being put out there for the specific purpose of being criticised. Its author has spent a lifetime having first drafts torn to pieces. The point is to see if there is anything in this idea. It would be surprising if it could not be improved or if there is thinking around the world which it should reflect.
So, here is an initial seven-point attempt at defining the different stages in the provision of legal services to provide access to justice.
This is clearly the first step. Someone with a problem – eg a leaking roof – has to recognise that, for them, this may not be not just a building issue but is also a legal one – eg because they are a tenant or they hired a builder who did some lousy work. They may need more than a bucket and a new roof tile. Here we have at least two approaches where technology might be relevant. First, the traditional provision of information as in sites like those run by Citizens Advice and Law for Life in England and Wales or, more interactively, MyLawBC in British Columbia. These set out the law that applies to your query. Second, we are beginning to see initiatives both in the UK and the US to translate through natural language programming ordinary language to legalese and back. These are designed to ease issues of communication so that the system can tease out legal issues from ordinary language. This approach is exemplified by the Learned Hands project of Stanford and Suffolk Universities in the US or, more generally, the work of the EU Mirel project.
After you have recognised that you have a legal problem, you have to decide what to do about it. This is where much public legal education kicks in.
In terms of taking matters forward on an individual basis, you have to make a decision based on a number of elements – the importance to you of the problem; the likely benefits of resolving it; any disadvantages of taking it further; your temperament as to the mode of resolution; the range of options and so on.
Your chances of success will depend on the law on which you may require straightforward information as to its current state or more complicated analysis of relevant cases and the vagaries of the law’s application to your understanding of the facts.
In the resolution of any dispute, the collection and presentation of evidence is likely to be crucial. Technology can play a part in its accumulation through such provision as Justfix.nyc which steers the collection of data on housing disrepair or the various programmes that allow recording of sexual harassment so that a case of persistence can be built up – like Project Callisto. In addition, there are highly sophisticated, AI assisted programmes such as those developed in high profile cases by human rights organisations such as UK-based Forensic Architecture.
4. referral and triage
Your problem having been defined and you having decided how or whether you are going to resolve it, you may want to explore what legal assistance you can get through some legal aid scheme, pro bono assistance or self-help assistance. A lot of work has gone into the consequent programmes to help you in finding out where you might qualify for assistance – particularly in the US with the Legal Services Corporation’s Legal Navigator or Illinois Legal Aid Online’s OTIS or, in Australia, with JusticeConnect’s Gateway. This is a field where claims are being made for the potential use of AI to assist the process.
You may choose self help or, alternatively, it may choose you, as the only practical way of proceeding. Organisations in almost all jurisdictions are exploring self-assembly documentation and programmes which will assist you dynamically through the necessary legal process.
6. individual resolution
You need a way in which your problem can be resolved. This may involve the provision of, or assistance with negotiation, mediation, arbitration or determination online.
7. collective resolution
Disputes are often experienced as individual. However, many – particularly those involving individuals against state agencies or commercial organisations – can also be seen as indicators of more general conflict. This can help in their resolution. Technology can assist in logging different individual cases on common issues that would benefit from collective resolution eg certain recurring problems in relation to the collection of state benefits.
If we could agree on this – or some better division of functions – we would have half completed the task. In the words of Leonard Cohen’s subversive song, we would have ‘taken Manhattan’. We could then move on to ‘Berlin’ – the different uses of technology. Hopefully, a group of us interested in this issue will be able to take it forward first of all in the UK to see if it will fly. If you have any views then do express them by email, twitter or comment.
Picture from Pixabay