Drivers for change

The world is in the grip of a revolution likely to be every bit as profound as the industrial spurt that once put Great Britain at the top of the economic tree. Like all revolutions, this has both a dark and light sides. Not every one benefits from the platform or gig economy and the uberisation of services. The impact of technology compounds the loss of steady and respected employment in mining, steel-production and manufacturing. It is a trend which manifests variously – including in the protest phenomenon of a Trump or a Brexit. It will change economics, politics and, there can be little doubt, legal services.

In the field of legal aid, we need to be aware of the effects of these broader changes to society. Potential clientele may change – more people may come in and out of poverty, some of the new poor may well be much better educated and literate than those we have traditionally served; those left behind may feel more disengaged than ever; physical communities may maintain less cohesion; the legal problems of those on low incomes may change as casualisation transforms the labour market and in countries like my own, private renting returns as a major housing provider; government budgets may be hit to varying degrees by cash flowing less accountably out of the economies in which it is earned.

One of the upsides of the current maelstrom of change is its energy. Canadian legal services is as good a place to see that as anywhere. British Columbia has no less than three world-leading organisations in terms of the application of technology: its own Ministry of Justice that is developing the Civil Resolution Tribunal as what should be the first online small claims court to become operational; the BC Legal Services Society with its Rechtwijzer based MylawBC which is a vision of the kind of interactive website that will sweep the board in the field of legal information and advice; and the Justice Education Society whose imaginative use, for example, of video avatars shows a future where the visual can be incorporated into the written in the communication of advice. Ontario provides the example of collaboration between a university, Ryerson, and the Ministry of the Attorney General in a competition for legal start-ups, a good instance of the very modern combination of the academic, political and commercial. And Ross Intelligence may now be based in California but the leading developer of IBM’s artificial intelligence capacities in the field of law was started by students at the University of Toronto. In Quebec, you have the well established example of the Cyberjustice Laboratory at the University of Montreal as a university-based originator of research into the application of technology to law. The Canadian Bar Association opened its August conference with ‘The Pitch’, a legal start up competition.

We need some sort of overview of the forces at work. There have been a a number of  attempts to summarise the different currents of activity. One of the best was published last month by the American Bar Association’s Commission on the Future of Legal Services. The only problem with the ABA analysis is that it does not group new developments into coherent trends.

It may help to see current developments as grouped into separate currents which nevertheless interact but which are, at least partially, distinct. Doing this also emphasises that the drivers of change are not just technological: the technology gets its bite from the commercial and other forces by which it is being deployed.

Out in front is the drive for profitability by the large commercial firms. They led the way in the use of the cloud, case management software, outsourcing and the first wave of back office reform. They are leading the way in the deployment of artificial intelligence to processing the law itself and the data which surround large commercial transactions.  The cost of developing AI in the fields of poverty law would seem an overwhelming barrier at least for now but it will undoubtedly seep in – most likely as it is deployed by courtroom advocates in judicial hearings; in areas of law such as employment where there are diverse potential clients, some of whom are very well off; and as the technology cheapens.

Following the big commercial firms are bodies concerned to service the market of individual clients on low incomes. Practitioners wish – and need – to minimise their overheads and thereby give themselves an edge on the competition. The hunt is on for what future guru Richard Susskind called ‘the latent legal market’, those willing to pay something for legal services if the price were what they would regard as affordable, significantly less than has traditionally been the case.

The best examples of this may well come from England and Wales where the effect of new technology is augmented by new forms of regulation which allow the third party ownership of firms. So, you have the arrival of venture capital to bolster models of provision which are national, web-led and sometimes deploy varying degrees of unbundling. For example, we have the establishment of Co-operative Legal Services as an offshoot of a retail and wholesaling chain and Slater and Gordon, an aggressive Australian firm that is seeking to establish a national brand. Both of these have encountered financial difficulties on which apologists for traditional delivery have fallen with delight but they should not crow too early. These individual examples may fall but others will succeed.

There are also a variety of ways in which practitioners without major capital funding can base themselves on a virtual presence and deal with clients remotely both in new organisational forms and old. The extension of video communication as an alternative to conventional meeting seems potentially revolutionary if it were widely deployed. It also destroys much meaning to any posited opposition between digital and face to face legal services. A firm like Epoch in England sells its services to legal expenses insurers and deploys the web, video, lawyers in a central location and document assembly software to produce wills for the clients of the insurers in a new way. Or video can be used within a firm or organisation in the way that New Mexico Legal Assistance held together its expert team on bankruptcy by using what used to be called the ‘hub and spoke’ model where a specialist team is fronted by outreach offices.

An important point here is that digital delivery is not necessarily an either-or proposition. A legal firm in England has developed a product called Siaro which asks a potential client to explain about their case in a series of guided alternatives and then provides a dashboard suggested what has to be done to the lawyer. The result is that the time in each individual initial interview is reduced significantly. This is such a simple application of guided pathways that it will be amazing if it does not take off more widely. It can help the user to identify the core element of their problem, prepare them for the answer and save the lawyer having to go through a standard time-consuming and repetitive interview process. It represents the win-win of a better service at a reduced cost.

Coming in next is government. Its roles are many faceted. Ontario’s government is backing its commitment to legal innovation by making sums available to facilitate the competition organised by Ryerson’s LIZ. A good thing. On the other hand, the Ministry of Justice in England and Wales is also pushing ahead with a major plan to move small claims courts online, following just behind British Columbia. The Ministry is under massive pressure to make savings by way not only of expenditure but also by selling off lucrative inner city court sites. The reforms have been heralded by a inquiry under a senior judge, Lord Justice Briggs whose report is worth reading and which accepts the need for physical assistance to litigants in person. However, the danger remains that these essential elements will be missing from the final implementation. All this government technologically-basedactivity is likely to encourage technology-based response.

Online Dispute Resolution will be a major driver for online legal services in response. Voluntary schemes from which opt out is allowed will, no doubt, multiply. But mandatory online determination for small claims proposed both for BC and England and Wales and for the same reason – take up would otherwise be low and the financial savings less. Mandatory state backed determination online represents a change for ODR as it has developed. ODR traditionally has been more akin to ADR. So, we might perhaps distinguish it as ODD – online dispute determination. The Dutch experience with its Rechtwijzer programme suggests that this could extend to family cases as well as small claims. Sensitively managed, this could be a real boon but insensitively managed, it could simply open up further the digital divide between the empowered and unempowered, posing a major challenge for legal services. In any event, ODD will be driver for online legal services.

It would be surprising if service providers were immune to the enthusiasm of the new technology. All around the world, providers are experimenting with what can be done on the web. Illinois Legal Aid Online, for example, has made a major step forward in upgrading its online triage provision. The Citizens Advice Bureau service is revamping its provision in England and Wales, turning in the process to a web-led presence supported by physical provision rather than the reverse.

But, the big breakthrough is the deployment of the guided pathway as developed by the Rechtwijzer and demonstrated by MyLawBC. Once you have seen how an advice site can follow the form deployed by an airline if you want to buy a ticket then the usual static website is massively out of date. This is web information 2.0. And, together with automated document assembly, guided pathways represent the perhaps belated introduction of interactivity into provision. Any process that ends in a document can usually be automated. The scope in law is huge. And it is not just the automation: it is the ability to put the software into a visual context like the A2J software developed in the US. We need to explore how far we can take thIs.

The final current that I wish to consider here is the drive of the entrepreneurs and businesses themselves. They are bubbling up to compete – often in highly competitive environments where everyone realises that most will fail. They are demanding to be heard in their assertion that they can do something. That is what you see at the CBA’s Pitch, the Ryerson competition, the development in the UK of apps for homelessness and domestic violence. In London, this dynamism has even been harvested by a community law centre in Hackney which ran a successful hackathon. Traditional borders are being crossed here. The institute in The Netherlands, HIIL, that developed the Rechtwijzer is now self-funding. Its continuing existence depends on selling its product. HiiL leaders are scouring the world for potential clients to follow the Legal Services Society and Relate in London. Australia is said to look promising. Modria, which provides some of the background software, is an overtly commercial company on the hunt for business in a similar – but perhaps more traditional – way.

The overall impact of these drivers will be a revolution in services every bit as powerful as that which happened around much of the world in the 1970s but with one major difference. That revolution was driven by funds largely provided, one way or another, by the state and made use of by commercial forces within the profession. This one is being driven much more by commercial forces and it is an open question how much the state, in the form largely of legal aid administrations, can make use of them. The potential impact of legal aid administrations is considered in an earlier post.

This is a slightly modified version of part of a keynote address to #WiredJustice, a conference organised by Lefal Aid Ontario.

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