This presentation attempts to set out where we are now in the application of technology to access to justice. I want to explore a framework will help us to comprehend the different currents of development. If you would like the takeaway up front: there is no ‘killer app’; there are broad and uneven developments over a wide field. And, overall, technology does not find access to justice such a fertile field as areas of commercially-applied law. Indeed, in access to justice, the use of technology – outside of adoption of business processes developed in the commercial sector – seems weaker than might have been expected a few years ago. There has been a vast improvement in the accessibility of websites but, as a whole, relatively little move into using the interactive possibilities of the net – albeit an increasing degree of exploration of possibilities and with some notable exceptions.
This is a little contrary to surrounding culture. We are in the midst of a rapid technological revolution – particularly focused on the potential of artificial intelligence – which has the potential to transform our economies, societies and politics. We approach, depending on which guru you follow, a fourth industrial age or a second machine one. Law as an area of economic activity is not, of course, exempt. Go to a LegalGeek conference in London (last
attendance 2000) or an ILTACON one in the US (with double that number) and you can see the frenzy and catch the smell of money. At stake are considerable markets. One estimate of the current US spend on legal tech is $1.5bn on software alone. A further estimate at the value of ‘the global LegalTech market is … $15.9 billion, and growing.’ The Stanford University CodeX Techindex lists well over 1000 legal start ups ‘changing the way legal is done’. Reflecting professional concern at these developments, there have been, around the world, a number of serious studies by Bar Associations of the impact of technology on their legal profession in jurisdictions including Singapore, England and Wales, the US to New South Wales.
Until recently there was a relatively concerted effort to link access to justice with commercial concerns. Many a LegalTech conference around the world began with an access-focused hackathon. Increasingly, there seems a realisation that this does not work so well. There are, after all, few access to justice problems that can be solved by a group of enthusiasts – however fuelled up with Red Bull, beer and pizza – over a weekend by technology but without context or sustainability. The business people have gone their own way – largely leaving the issue of how technology will affect access to justice to be explored by others who might be able better to adjust to inadequate levels of clean data; uneven existing provision of services; significant levels of digital exclusion and woefully thin resources. They leave, however, two legacies – the possible ‘trickle down’ effect of generally applicable technology, such as case management systems, and the inspiration of comparable levels of change.
There are difficulties in following such use of technology as there has been. Technology is global in its impact. Law is, by contrast, overwhelmingly national. Thus, it does not really make sense to consider technology other than in an international context. On the other hand, the circumstances in which technology is used – the regulatory, professional and business context – are irredeemably national. So, for example, Americans have to agonise about the impact of the unauthorised practice of law in a way that the Brits do not. There are other barriers to getting an overall picture. In some areas, like AI, hype is rife. By contrast, much of not for profit sector is rather shy of publicity so, for example, to keep track of what is happening in Australia, New Zealand or Canada can be hard If you are in the U.K.
A further complication is that organisations may get grant funding for projects which briefly flourish and then fall away as they are neither adequately sustained or promoted. There are other barriers. Poor people, by definition, have little dispensable cash: services for those on basic benefits, for example, are going to have to be resourced by third parties – predominantly government and to a lesser extent foundations and pro bono legal- orientated legal practices. Areas of poverty law and practice lack the clean data which assists providers orientated towards, for example, document review. Adding to the problems for access to justice is the lingering impact of the 2008 financial crash which has been used to justify major cuts to legal aid funding in jurisdictions once among the most generous, such as Ontario and England and Wales. And, generally, there is an absence of rigorous review of success or failure which makes it hard for the outside observer to judge success or failure.
There are six currents that, merged together, that we might see make up the current picture of development. I am interested if others have different ways of doing this.
1. ‘Trickle down’ business technology
The first and overwhelmingly still the largest use of technology in A2J is what is effectively the ‘trickle down’ of its use generally and in the commercial legal sector. A US report published by CLASP and NLADA as early as 2002 pointed to the use of such technology in the previous four years ‘to accomplish many things that otherwise would not have been possible’. 10 years later, in 2012, the Legal Services Corporation at its Technology Summit was noting how business processes could be further improved by technology.
All access-to-justice entities will employ a variety of automated and non-automated processes to make the best use of lawyers’ time to assist requesters with their cases,
In the UK, the Legal Education Foundation is committed to a programme of upgrading law centres which included basic technology such as Microsoft Office and the rollout of desktop computers. In this context, Singapore’s Academy of Law has developed a phased programme for all legal providers which begins with a ‘baseline’ level which includes things like document management systems and online legal research. The second prong extends its ‘Tech-celerate’ programme to more advanced provision including ‘document assembly, document review, e-Discovery and automated client engagement’.
Legal aid organisations in other jurisdictions have inched toward Singapore’s baseline provision. Many have sought to instal modern customer relationship management programmes developed originally in a commercial context. The LSC has provided the funding for its own case management software, LegalServer. AdvicePro is a UK equivalent, associated with AdviceUK and widely used in the not for profit sector. The English and Welsh Citizens Advice Service – the largest national information and advice provider – has developed its own product, Casebook. Meanwhile, commercial products like Clio, are becoming more sophisticated and more relevant with the possibility of various ‘plug in’ additions which could make them an effective rival for practices with low income clients. The issue arises as to whether adapted commercial products are actually better than those developed in-house.
There is a distinction between technology that improves efficiency and technology that radically alters business models and operation. On the borderline – but still not really radically transformative – would be the use of Skype or video to extend services. A number of legal services organisations from clinics in Ontario to legal services providers in the US and the UK are experimenting with video links from their home base to remote locations in a variety of different ways – sometimes involving pro bono advisers in the package. A good example is the remote service provided in the west of England by University House in East London.
Use of business technology improves the efficiency of both for profit and not for profit providers. It allows them to get more ‘bang for their buck’ and to use technology to extend the use of their resources. This application lacks the sexiness of developments like AI but, frankly, if I was in a small NGO or firm, this continues to be where I would spend what small sums of money I could get together to maximum effect.
2. Net-based legal services – variations of virtual legal practice
In 2012, aided by developments in England and Wales allowing third party funding and ownership of law firms, Co-operative Legal Services (CLS) led the charge for web-led firms with DIY unbundled legal services to impact on the market with cheap fixed fee packages in areas like divorce. It opened to considerable fanfare and was seen by the legal profession as a potential major disrupter. It largely failed, part of the reason presumably being that users preferred more traditional, individualised services.. A Law Society supported attempt to head it off at the pass with a national consortium of traditional legal firms marketed under the name of Quality Solicitors has largely faded away in consequence.
There remain, in England and Wales, a number of virtual legal practices like the English example of Scott Moncrieff but their overall impact is marginal. As are, at least in England and Wales, the various online commercial providers. RocketLawyer can provide a series of legal documents and help with online company registration. And LegalZoom acquired a UK law firm, Beaumont Legal in Wakefield, and sought to build a fairly conventional online business largely around its conveyancing practice, wills and small business services.
Overall, I am rather surprised by the limited impact of virtually practiced law even in the private sector. You would have thought that there were possibilities for provision for law income clients as part of a wider group of more affluent ones – such as family and employment. It may, indeed, be that there is more going on here in jurisdictions other than my own.
3. The Rechtwijzer, its Legacies – guided Pathways and legal design
The Rechtwijzer merits its position as a force in its own right. It is the subject of a separate paper so I am not going to deal with it in detail but it had four market-transforming effects.
First, it was itself an international creation of three organisations, two of which (Modria and HiiL) had international orientations.
Second, in its first version launched in 2007 and then upgraded in 2014, it was an early example of the advantages of legal design which I take to be – the attention to user-centredness, the vision of assistance as helping the user through a process or journey rather than the provision of static information; attention to the visual and intuitive; a concern with appropriate language. In the hands of the doyenne of this field, Margaret Hagan at Stanford and others, this has become one of the most creative contributions of technological thinking which needs more attention in countries like the UK which are rather lagging behind the US. This movement had other sources than the Rechtwijzer, notably the whole design movement itself, but it is convenient to log its impact here.
Third, the Rechtwijzer showed the value of the ‘guided pathway’ in giving information in an interactive and bite-size way. This is followed by MyLawBC.com and I believe will emerge as another area of major development for static advice sites like citiizensadvice.org.uk in England and Wales.
Finally, Rechtwijzer 2 showed the possibilities of online asynchronous mediation – forming a potential link with court and tribunal based services.
A number of other advice websites – such as Victoria Legal Aid’s Legal Checker – now incorporate interactive elements to narrow down relevant areas of information which are then given in familiar linear fashion – as a form of hybrid guided pathway/conventional information site. The possibilities that it opened up of online resolution are likely to be explored by court-based ODR schemes. The greatest intangible legacy is perhaps the internationalism engendered by the project.
4. The Impact of Courts and Tribunals – self representation and digitalisation
The long-standing need in the US to provide some assistance for unrepresented litigants unsurprisingly led to exploring the use of technology. The most notable product would probably be CALI’s A2j author (https://www.a2jauthor.org ) which has spawned a number of applications in court document self assembly. The UK, in CourtNav, has an example of this sort of application in a specific use.
A further potential current of interest in developing technology to provide legal services is the consequence of the drive for online courts. ILAG has recently been assisted by the University of Cambridge’s Pro Bono Project to provide a comparative analysis of developments in six jurisdictions. Others are opening up all the time – New Mexico and some of the courts in California have just announced online mediation in some types of cases – using a Modria (now Tyler Technologies) developed module.
The digitalisation of courts and tribunals raises enormous issues not to be followed here. But in the context of access to justice there are two to mention. As courts and tribunals go online, so agencies and users using them will have to do so as well. Many small NGOs and firms are going to have to gear up to doing this. In addition, some small claims courts have incorporated self help tools along the lines of the Civil Resolution Tribunal in British Columbia. This was created by legislation in 2012. The really innovative part of this tribunal has been its front end: the ‘solution explorer’ which it explains as follows:
The Solution Explorer is the first step in the CRT process. We’ll give you free legal information and self-help tools. If necessary, you can apply to the CRT for dispute resolution right from the Solution Explorer.
So, here is another interface between the type of tools provided by a court or tribunal and those provided by others.
5. Artificial Intelligence
Artificial Intelligence has such a broad political footfall that it justifies its identification as a motivator of technological advance in its own right. It would be misleading to describe it as a solution chasing a problem but two recent grant programmes from the English and Welsh government rather encourage such an observation. The Department of Business etc has given the Solicitors Regulatory Authority £700,000 to run an AI-orientated ‘Legal Access Challenge and has combined with another department in a further ‘Strategy Challenge Fund worth in total £6.4m with £262,000 going to a number of consumer-orientated projects.
In the US, Microsoft has been a co-funder of a ‘Legal Navigator’ project designed to have an AI element in problem identification ad referral. And, linked to that there remains considerable interest in using Natural Language Processing and Machine Learning to help identifying and responding to legal questions. A project between Stanford University and Suffolk Law School has developed a game called Learned Hands to assemble some of the necessary data:
Learned Hands is a game in which you spot possible legal issues in real people’s stories about their problems. You read the stories, and then say whether you see a certain legal issue — family law issues, consumer law issues, criminal law issues, etc. The game is also a research project. Each time you play, you are training a machine learning model to be able to spot people’s legal issues. This model will be used to develop access to justice technologies that connect people with public legal help resources.
There may be a significant issue of timing in relation to AI. From 2017 until its demise late in 2018, it looked as if an Australian project involving a highly sophisticated chatbot called NADIA who spoke with the voice of Cate Blanchett might revolutionise the world of information provision. She was destroyed, however, over concerns of cost and performance. Even running on IBM’s famed Watson programme, she was just too slow in processing questions. The potential for a development like this in law must, however, remain taking, as it would, the rather rudimentary approach of most chatbots to a new level.
6. The Aggregation of Disparate Gains
This basically covers everything else that is none of the above. It includes programmes which develop existing functions through developments in technology such as:
Skills and knowledge training
and other developments which might be grouped under the exploration of the interactive potential of the digital world. It also includes new uses for technology such as:
digital support networks for advisers like rightsnet in the UK;
programmes that utilise the possibilities of digital recording – like the US, Project Callisto aimed at developing totally innovative ways using technology to combat sexual harassment on university campuses by facilitating the reporting of sexual harassment. Another example would be Justfix.nyc which facilitates the recording of housing disrepair in New York City.
Crowdfunding sites – a whole field of study in themselves.
Many of these are really interesting and have great potential. Of them all, the most important and replicable are likely to be portals that cover initial information, triage and referral (for which AI might be remarkably helpful). Examples would be the US Legal Navigator pilots, Illinois, Legal Aid Online’s OTIS and the Australian Gateway project of JusticeConnect.
The Digital Divide, Digital Exclusion and Digital Resistance
The reality of the digital divide and digital exclusion has-to be recognised – even by digital enthusiasts. The whole notion of ‘digital by default’ may need to be reconsidered in the light of the stubborn reality that we should accept that, say, 20 per cent of the population will be unable to use digital means of communication effectively. That is sizeable enough to require addressing and retaining face to face channels of communication. Too often this can be forgotten.
And the lessons?
I can get up to Ten Commandments for Legal Aid administrators but the main point is the absence of any magic bullet. Technology offers a range of incremental improvements which will largely supplement but not supplant advisers. Avoid making non-strategic gestures with wads of cash to cover cuts to mainstream provision. Remember those excluded from the net. Avoid seduction by AI. And recognise the need for national strategic leadership and international evaluation.
And, remember. At some stage soon, we should set up some way of working internationally to break down the various components of access to justice and then identifying first what technology is being used and then where technology can be of assistance in each individual element. That is partly why it seems necessary to analyse what is being done. This is a task for international orientated effort that lay behind the founding of ILAG. For example, I organised a web discussion that brought together experts from Vancouver to Melbourne on the use of AI. I very much feel that this kind of international collaboration is the way to take forward the international orientation which ILAG has so creditably maintained.
This is an edited version of a presentation prepared for the International Legal Aid Group Conference to be held between 17 and 19 June 2019 in Ottawa,Canada..