It is a sobering thought. But, many countries of the world may have passed the moment of ‘Peak Justice’. That is the time when the greatest proportion of their population had access to sufficient information, advice and assistance to identify and resolve their legal problems. Throw in the waves of new poor likely to be created in the aftermath of Covid and the consequent financial austerity as governments seek to recoup their expenditure during the pandemic. Things may get sufficiently worse. And, realistically, it is only the promise of technology as a force-multiplier that offers much hope. Its application depends on whole series of factors that are, in essence, nothing to do with technology itself. They are about the interplay of forces and surrounding context.
Let us take 2030 as the limit of our forward time frame. We already know pretty well the combination of technological innovation that are required to arrest the decline in access to justice. The aim will be to bring down unit price both of public and private services better targeted to those who need them. Techniques to be explored will include:
- Ways of expanding on the virtual lawyering that has been deployed during the last two years through eg the use of video communication;
- Targeted outreach to specific populations of concern;
- Case management software that facilitates low cost unbundled services;
- The integration within unbundled services of more interactive elements such as document set assembly;
- The acceptance that services need to be a blend of self help and assistance in new ways;
- Improvements to automation of the process of diagnosis, intake and referral that will probably use elements of AI;
- Innovative combinations of currently separated services.
We can have an interesting discussion about whether these are the likely key developments of the next nine years. Amendment, deletion and addition is welcomed. But the basic point is that the basic lines of innovation are foreseeable. Let’s move to the question that follows. What will determine which are developed and how?
As we set out on this journey, particularly if we are in England and Wales, we have to pass a somewhat depressing corpse by the roadside and recognise it for what it is. Civil legal aid in the universal form in which it has envisaged after the Second World War is dead. The cuts of 2012 and beyond have been so severe that civil legal aid and advice as a coherent, jurisdiction-wide system provided by private practitioners for clients unable to afford their own lawyer is over. And, realistically, it ain’t coming back. We are left with a set of rump services linked tenuously together by a concept of human rights which is itself under attack. The Ministry of Justice took a billion pound hit to its legal aid budget. No government of any stripe is going to reinstate that. Even if the leader of the Opposition is a barrister from a radical set of chambers. So, we may weep (and we should) at the careless destruction of a major part of the structure of a state striving to be fair. But our tears – and anger – will not bring legal aid back as it was in 2010.
Government is the first player to which we should look for the future. It has power, resources and influence at hand. We may have considerable difficulty over the resources. But, we urgently need to it to engage its influence in where we go to from here. We need its leadership. Interestingly, we can see signs of that engagement from the Biden administration which seems likely to reinstate the Obama office covering equal justice. Even in the UK, the government was willing to put limited money into challenge funds, like that run by NESTA, to improve access to justice.
All jurisdictions need some sort of framework which broadly follows that of the federal funder of civil legal aid in the US, the Legal Services Corporation. This has a technology strategy; runs a specific pilot funding programme; holds the most best annual conference on technology around the world. Now, governments have advantages over legal aid administrations. They can call together a broader church. But legal aid administrations have the advantage of flexibility and a degree of autonomy. The truth is that we really need both. Too bad that England and Wales (but notably not Scotland) have abolished their standalone legal administration. It makes it harder for government. But our government abolished the old model of legal aid, the pressing need is for it to decide what will replace it. In that process, we need national commitments to a broad-based strategy of maximising the use of technology in the service of maximising services at a time of unprecedented pressure.
Governments are, however, not the only funders of technological innovation. In most jurisdictions, foundations of one kind and another play a key role in resourcing innovation. They should be leveraging government towards the development of a strategy. But there is another need in which they can play a major role. We need to know what works. And for that we need transparency, publicity and evaluation. Funders could give us all sorts of high falutin’ assessments and material. But, the following would transform the circulation of information on successful projects around the world: a commitment to publish key details; the specific goal of the project (eg how many people did they promise to reach and what were they going to do); performance against goal; two sentences (no more) of explanation; a single one would do on scalability. So, foundations around the world, get together and agree minimum core practices on publication and publicity.
Then we have the providers – not-for-profit and commercial. Law Societies and Bar Associations need to look after their own and publicise those of their members who are successfully managing to provide low cost services for low income clients and how they are doing it. Similarly, not for profits need to focus on how they can multiply their effectiveness through technology. You can see this beginning to happen in many jurisdictions – through, for example, the Justice Innovation Group in England and Wales or the Self-Represented Litigants Network in the US.
Providers and funders have some advantages over governments and their institutions. They are not inherently state-based. So, it would seem that they are our best bet in terms of developing international networks that can bring together the experience of different jurisdictions. You can see people beginning to explore what can be done internationally. JusticeConnect, an Australian organisation is working on pro bono infrastructure in England and Wales. The Rechtweizer was propelled around the world by a team determined to sell it. And it found an open and generally positive response. The benefits of international communication are evident and need to be advanced. Within the time scale of the time to 2030, this is likely to be by increasing voluntary collaboration between similar networks of academics, practitioners and activists. We need that.
And finally we have the users. Some of these will, for well rehearsed reasons, be excluded from using technology. But, there are ways to be explored in getting around most of the obstacles. There will be an irreducible minimum of people who cannot or will not use wi-fi. Fine. We should always keep a personal channel open for them. But we need to get to the rest and see how we can develop services that will help. And they are likely to be ones where automated assistance is blended with the personal. Only after we have fully explored the possibilities can we say what the limitations are. And, if they are cost in terms of broadband or hardware, let’s see how that can be addressed.
You choose your own place on the optimistic-pessimistic spectrum about the state of access to justice by 2030. Myself, I am a conditional pessimist – ‘things will most like be worse but …’ The frustrating thing is that there are so many possibilities for technology to offset the decay is, alas, otherwise so likely.
Picture from Pixabay.