Me? I’m off on an early train to the south of France on Monday. But, before I go, here are ten things we have to talk about when the holidays are over. And by ‘we’ I mean the loose community interested in technology and access justice of which, simply by being a reader, you are likely to be a member.
(1) Mapping, evaluation and research
In June, legal design guru Margaret Hagan tweeted ‘If you have a promising #accesstojustice tech or design that you have built and piloted, please share it with me! I’m going to start a mapping of the different solutions’. The sharing of this kind of information was stressed at a meeting convened by the Access to Justice Foundation in London the following month. It was also a recommendation of the very first report for the LEF on the Digital Delivery of Legal Services to People on Low Incomes. So it is widely recognised.
And mapping is just the first step. We need to develop an accompanying mindset – a willingness to be transparent and to collaborate in circumstances where there is naturally a level of competition, particularly when it opens up the opportunity to build on different projects. These need measurable goals for all the reasons that they are so popular in current management practice.
Let me practise what I preach. I have goals for this blog. I aim for 15,000 readers a year who stay long enough to read a post – with a quarter as repeat users. I am currently short on both targets but they should be achievable within the next year. These are self imposed and I make them to focus my efforts. It is what everyone should do with any project.
Not only do we need to set goals, we need to be more confident about disclosing the specific expectations of projects both when we announce them and when we report back on performance. We just cannot afford to be as profligate and secretive as the commercial sector. And we need, so far as we can, to commission and publish independent research in the way that MyLawBC has just done.
We need, therefore, to talk about common expectations and, potentially, common measurement.
(2) Legal empowerment and legal services
The debate about whether access to justice provision should be seen within a legal empowerment context (delivering skills to the ultimate user) or legal services (delivering a result) goes back to the 1970s and beyond. Empowerment was taken up as a motivating idea by the development movement in the 2000s. Bodies like Namati (‘We advance justice by helping people to understand, use, and shape the laws that affect them.’), the Open Society Justice Initiative and HiiL all openly espouse an explicitly legal empowerment approach.
We need to get a hold of the legal empowerment argument. Can we show that technology does empower people with transferable skills rather than specific knowledge or is that pie in the sky? The resolution of this old argument may well lie in looking ‘to segment the market’, to identifying those within target groups who want/can absorb new skills to eg take a case on their own and those who need more personalised assistance. That will need quite a lot of research and discussion.
(3) Privacy and Marketing
Renewed public concern with privacy raises problems for providers who wish to monitor their usage. There may well prove to be a point at which users need to be propelled by some overwhelming need to cross a line to give identifying information about themselves. We need to find where this is because personal identification is clearly important in monitoring outcomes. But, users may well value their privacy. And the other side of a concern to protect the privacy of users has to be a drive better to market and publicise innovative development.
We need to talk through how we can up our game in relation to marketing and watch it relation to privacy.
(4) Exploring legal design
The legal design movement is one of the most creative developments of recent times in the field of access to justice technology. The Legal Design Lab at Stanford University has established itself as a leader in the field. Its techniques are spreading out of the university into the wider technology.
We need to extend, test and report on legal design methodology.
(5) Lessons from Health
There is increasing interest in the links between health and law. Medico-legal partnerships are of increasing interest around the world as the link between access to health and justice becomes better recognised. However, there are other points of crossover. One is the area of triage. A recent report stated:
The UK’s National Health Service is rolling out a digital health initiative at one of its leading hospitals to transform the way it triages and routes patients in its system, in an effort that leverages chatbots and telemedicine services … Patients in Birmingham are being encouraged to use a set of interactive tools, including live and automated chat services, online symptom checkers, and video consultations with doctors and nurses.
We need to monitor these developments in health and read the lessons across to apply to law.
(6) Strategic leadership at national and international level
In most jurisdictions, individual providers of access to justice services have considerable autonomy in how they develop their use of technology. Funders can specify minimum standards; they can provide funds for specific purposes. They can hold, like the Legal Services Corporation or the UK Business Ministry, competitions for funds to assist development. That opens up discussion of how the incipient use of technology in access to justice movement can be given leadership and centralised momentum. This is an issue both national and international. For the time being, the answer may seem rather weak. There is little alternative to continued encouragement by national bodies and ad hoc groups.
We need to develop new – initially informal – networks of communication, both national and international.
(7) Issues on court and government digitalisation and ‘algorithmicisation’
A recent Law Society report has highlighted the growing use of algorithms in the justice system from predictive policing to decisions on prison sentencing. Potentially, we have also to deal with the impact of algorithms on decision-making. This is not necessarily negative. It should become increasingly possible to use technology to predict the parameters around which a case might be resolved and this will be a helpful addition to the armoury of a potential litigant, Clearly, however, the key issues of transparency and accountability have to be kept under review. Agencies in relevant fields will need to be vigilant in picking up issues as this sort of technology advances within government departments eg on deciding benefit claims. In particular, the process and result of fact finding will be crucial and will need review.
Digitalisation of courts and tribunals will undoubtedly have a knock on effect on users and agencies working on their behalf. More work will be shifted online and small agencies used to working more informally are going to need to gear up to work online themselves with the attendant software support which will make this possible.
We need to discuss the implications, preferably, on an international basis.
In many jurisdictions, technology is throwing up issues about the prohibition of legal advice by non-lawyers. This is not the case under the relatively liberal regime in England and Wales. Nevertheless, the Legal Services Consumer Panel has produced a paper on Lawtech and Consumers which asserts ‘The use of lawtech in delivering services to individual consumers is in its early stages. This is therefore an opportune time for policy makers and regulators to shape and encourage an ethical approach to it.’
We should be ahead of the game here with our ideas on regulation and quality standards.
(9) ‘Sleeping with Google’
A common problem for all jurisdictions is reaching target populations for assistance and referring them to appropriate providers. There is a growing interest in how artificial intelligence might be used to help in this. This has attracted some interest from major commercial interests and Microsoft, for example, has been very generous in its assistance to the Legal Navigator pilots in the US. That raises an issue which might be better perhaps symbolically conceptualised around Google. A consistent lesson from current websites is that more attention needs to be given to how they promote themselves on platforms that uninformed users use to find answers to their problems. That will overwhelmingly be through search engines. For the longer term, we might begin to consider what is the desirable end point. Do we aspire for jurisdiction-wide websites which provide basic information and referral which are branded separately – and perhaps accepted as authoritative by Google as it does provision by Citizens Advice and Shelter in England and Wales – or do we see ourselves as ultimately working for some more active alliance with Google and similar search engines? More generally, what should be our relationship with the commercial sector?
(10) digital exclusion and resistance
Finally, we have to address the issue of digital exclusion and digital resistance. The message of the failure of the Rechtwijzer and, in large measure so far, of web-based services such as Co-operative Legal Services would seem to be that consumers are not that enamoured of such provision even if it is reasonably cheap and they have the requisite skills and access. They have preferred those that are traditionally delivered. Of course, the poor may have no choice. But the problem of using technology to address their needs is that a significant proportion of the population are excluded for a variety of reasons – be it competence in, and access to, technology, broadband or social, linguistic or cultural skills. We can also see from the recent MyLawBC evaluation that those excluded are in particular groups – not just the poor. They are likely to be women, ethnic minorities, the very old and the disabled. The Royal Geographical Society’s figures are that currently ‘5.9 million adults in the UK have never used the internet; There are 4.1 million adults living in social housing that are offline.’ We need to work out what segments of the low income population technology can serve and in what way.
So, work enough for the year ahead. Do get in touch with any thoughts on these or on any issue you think is missing. Posts will come back on stream once I get back.