The US, technology and access to civil justice: the top ten lessons for a passing Brit

What are the top ten themes in the ongoing development of technology in access to justice to be gleaned from last week’s Legal Services Corporation conference? This is my selection. They are unavoidably coloured by the prejudices and experience of a Brit. The full nuance of the local may well not have been appreciated.  Anyway, enough of the disclaimers. This is my shot at summarising the general lessons.

1. The US is way ahead of any other country in exploring the use of technology in access to justice.

This is not surprising, given its advantages. The US is way bigger than all other open societies. It is the home and powerhouse of technological innovation. It has the Legal Services Corporation explicitly taking a lead role in the strategic funding of technological innovation within a large part of the civil justice sector. The US’s  federal nature gives a multiplicity of different experiences in individual states to compare within one broad overall framework. There are a multiplicity of powerful and effective national organisations and networks: among them, the LSC itself, the Self-Represented Litigants Network and Pro Bono Net. These reflect a multiplicity of funders beyond the LSC such as the four foundations, including Open Society, involved in funding the National Center for State Courts’ Justice for All project. 

There is a very practical consequence for the rest of us. If we are developing ideas of our own then we need to check with the US. It is not that everything happens there but so much does that there is no point in re-inventing the wheel. No apparently innovative project should be articulated without ascertaining if anything similar has been done in the US and, if it has, what the lessons are. A major example of a growing area is document self-assembly. The US now has vast experience of this and we should building our provision on the tools and examples which have already been developed.

2. We should talk of ‘digital poverty’ rather than ‘digital exclusion’.

This was very much the line of a number of the speakers at the conference. It reflects an essentially political point. The concept of digital exclusion has the benefit of emphasising the non-financial elements of the digital divide – cultural, linguistic, skills etc. Poverty puts the emphasis back on the economic. That, by itself, is a limiter but using the concept of ‘digital poverty’ allies the issue with a wider recognition of poverty in relation to food, fuel and, in particular, education. Here, the pandemic is bringing up the differential access to broadband and to hardware like tablets between the poor and those better off. The aftermath of the pandemic will be a massive rise in poverty around the world. There will be a corresponding effort to address this but also resistance by those who do not want to meet the cost. We would do well to link digital to other elements of the necessary recognition of a levelling up agenda. It is notable that, at the moment, schools are pleading for free broadband and iPads: they are focusing on the consequences of poverty.

3. We should deploy the concept of self empowerment

There is another linguistic issue – the rise (or you might argue, the return) of the overall concept of self empowerment. Any legal services or legal aid lawyer will be  savvy enough to be sceptical of  any political formulation which advances people acting on their own without state provided assistance. It manifestly assists the case for low or no funding. However, need is manifestly overwhelming and will only get massively worse. People will benefit from the skills and knowledge of solving their own issues if they can. We need to develop a unified but divided approach to providing  self-assistance tools supplemented  by escalating levels of subsidised legal assistance where necessary. Thus, self-empowerment needs to become a coherent part of an overall system of assistance. In the UK, the challenge will be to bridge the gap between traditionally very different forms of provision.

4. We must recognise the need for co-ordination

Spend some time looking at another jurisdiction and the peculiarities of your own become more apparent. There is no central co-ordinator of publicly assisted legal services in the US but the LSC had the credibility to  bring together a number of different networks. There are others – such as, in crime, the National Legal Aid and Defenders Association. We need in the UK to evolve more co-ordination between the basic building blocks of provision – CitizensAdvice and the advice sector, law centres, court assistance programmes , pro bono provision, legal aid, specialist single subject litigation units. If I were in government, I would appoint a small commission or even a single czar (these were once popular under Tony Blair and David Cameron and, no doubt, their time will come again) to perform this function. There is a cultural issue here. A start could be made by some source of funding seeking to reproduce a conference with the breadth of the recent one in the US. You could support this from any political perspective: it would be about making a rational use of existing resources.

5. Let us value detail, planning, the empirical approach, evaluation and transparency.

Much of the value of this conference lies in its chance for the presentation of individual projects. It is the micro-detail that many practitioners find most value. Presenting the detail allows for nuanced evaluation.

6. Tech has become central to the optimum mix of provision

People need lawyers. Check. They need the opportunity to get face to face assistance. Check. They also need remotely accessible assistance and information. This is new and it is a reflection of a profound change in our societies. To its credit, our Citizens Advice service recognised that some time ago and pivoted its services to the digital. This is how people increasingly get access to goods and services. Digital needs to be consciously integrated into a system of provision.

7. Artificial Intelligence may remain trendy but …

The conference was, I thought, notable for the absence of much talk of AI and claims for machine learning. There must be a role for these developments in handling the complex data that is the law but they are not where the emphasis for development seems now to be. The US has experimented with various machine learning attempts to assist in the determination of legal queries. But it is not clear that this is making the breakthrough that some hoped.  In previous years. much has been made of the AI-assisted statewide Legal Navigator websites being trialled by the LSC in Hawaii and Alaska. These got a million dollar sub from Microsoft. There was a session on these at the conference but it all seemed a bit more downbeat than previously. 

8. The importance of video communication

The conference itself was a vindication of video communication between advisers. As 5G rolls out, video is likely to be more and more useful in both communal outreach and individual communication.

9. Remote Courts and their implications

No other jurisdiction has gone more hell for leather toward remote courts than England and Wales. The consequent greater care in incorporating user experience elsewhere into that part of the court digitalisation process which relates to litigants in person is clear in the US. Academic institutions are being involved in at least some of the evaluation and evolution of court processes in the US in a way totally foreign to England and Wales. We should be alert to the lessons.

10. The importance of data

Reliance on technology brings data in its wake even where this is not integral to the process itself. Here, the Citizens Advice Service can produce pretty well contemporaneously data on queries at the basic level. No one else has got very much useful. And the Court Service has seemed pretty hesitant to calls to incorporate measurement elements into its new processes. 

If you attended this conference, you may not agree. You may not agree with these as major themes of the moment even if you did not. In either case, tweet or write in. Dissent welcomed.

 

 

It may be helpful to note that the conference used the Whova platform. The platform nicely brought together video and information about the conference, also allowing social communication. Worth a look for anyone seeking to do something similar.

Picture from Pixabay.

Leave a Reply