It is January. The media (legal as much as general) is full of predictions for the next year. For our purposes, let us assume that this is too short a time frame to be meaningful. For a start, much investment in access to justice comes from public funds and they are going to be in particularly short supply as the world lurches into a second year of the Covid 19 pandemic. Let’s take a longer period – say five years. And let’s not try to be too specific. What are the trends that we can see now which will form our world in 2026?
You only have to look at the political sphere to realise the difficulty of prediction in five years time. For example, will Donald Trump and Boris Johnson be busted flushes or re-elected rulers? Both or either might look shaky by the end of the week. Nothing is very definite, particularly as Covid 19 came out of nowhere to tear all our worlds apart.
The fundamental purpose of this exercise is get people thinking about, debating and influencing the direction of travel for technology and access to justice.
There are a number of approaches to help analysis. One is set out in my book of the moment. This is Sir David Omand’s ‘How Spies Think” (a quixotic buy to support a struggling local independent bookshop). Sir David may bear a heavy burden for elements of the Iraq War but he has now left politics for academia. His book sets out a fourfold pronged ‘unpacking the process of arriving at judgements and establishing the appropriate confidence in them”. He calls it the SEES model and it involves:
- ‘Situational awareness of what is happening and what we face now.
- Explanation of why we are seeing what we do and the motivations of those involved.
- Estimates and forecasts of how events may unfold under different assumptions.
- Strategic notice of future issues that may come to challenge us in the longer term.’
He wants to use this method to give mathematical percentages to the likelihood of various future eventualities. But let’s take it, more humbly, just to see what might be coming over the horizon in general terms.
Situational Awareness and Explanation
We can roll the first two elements together. And we can get a bit of perspective from history. In May 2016, the Legal Education Foundation (funders of this website) published my annual update report on developments in digital delivery of legal services for people on low incomes. Let’s tiptoe to those carefree covid free days and see what looked big five years ago. Here is what was presented as a summary of ‘the five most important global trends for 2016 in the field of legal services for people on low incomes:
(a) the development of guided pathways for advice and information (led by the Dutch Rechtwijzer now rebranding as Rewired and making a first domestic UK appearance for Relate later in the year.
(b) the emergence of national brands using an internet presence to deliver low fee services often linked with unbundling to open up ‘the latent legal market’ of potential low income clients (led by England and Wales where legal services have been significantly deregulated);
(c) exploration of automated document assembly (initially led by the USA);
(d) experimentation with various forms of virtual legal practice (widespread in the USA and taking off in England and Wales) – with the potential of video connection through Skype and similar products beginning to be explored; and
(e) ODR [online dispute resolution] as in Dutch Rechtwijzer 2.0) and ODD [online dispute determination eg by a definitive court] (led by British Columbia’s Civil Resolution Tribunal and with interest high in England and Wales in the final report to be issued by Lord Justice Briggs in relation to the Civil Courts Structure Review during the year).’
These recommendations were the ones focused on services. Another section noted the potential value of new forms of internal digital organisation (rather more reluctantly than I would like to see, looking back): ‘There is no reason why the same systems that operate in large commercial cases and transactions should not be used in what we might call a ‘poverty law’ practice.’
So, let’s compare that with the major trends that we would identify now and expect to develop in the next five years. None of the five would survive in exactly the same terms.
In the light of the pandemic, the major trend is the development of technological solutions to the problems of remote working. These cover a range of developments from moving data to the Cloud; digital phone systems; paperless offices with digital documentation; ways of working collectively but remotely; case management systems; and so on.
Here is just one example of an NGO agency – it happens to be Bristol Law Centre in the west of England but it could probably be repeated all over the world – on its future priority of accelerating ‘the development of digital services’: ‘We have already made great strides in ensuring that we are able to provide our services to clients remotely ads well as all of the back-office operations of the charity. We need to do more to ensure the efficient operation of the charity including moving all of our electronic systems to cloud based working and establish a timeline to move from paper based to electronic legal client files.’
Much of this work is, in the general context of general legal services, not particularly innovative or even exciting. But it does represent a major step forward for relatively small access to justice providers working on narrow budgets, with small staffs and with little spare cash. Hitherto, the capacity to operate remotely and digitally might have been desired: the pandemic make it essential for us as for all other services.
And the process of the digitalisation of working practices is a moving target. Get a digital phone system and you need digital records. Get those and you want professional case management software. Set that up and you want to adapt it for the specialist caseload of an access to justice agencies. Get that and you want an automated digital triage and referral system. Along the way, you will need a web presence that delivers automated services to users. These processes will go on and on during the next five years with agencies following as best they can a trajectory away from paper and toward the virtual.
Trend 2. Video communication and its implications
The second trend will be the increasing use of video communication and its implications. We are all now familiar with zoom and its equivalents as ways of communicating internally within organisations and externally with clients, users and colleagues. But there are other aspects here. Communication is going visual more generally. More and more people rely on a youtube video for instruction on everything from putting up a tent to claiming benefits. TicToc’s 20 seconds is replacing Twitter’s 140 characters. There is little excitingly new any more in principle about setting up video remote legal advice sessions or using video for community legal education. There is, however, a whole world of experience to be obtained into doing this as effectively as possible.
Video is so powerful and so full of implications that it may be worth isolating it as an individual technology in the way that, say, artificial intelligence is not. AI will be a means to attaining an end – assisting referral or advice for example. But it is, in essence, supplementary. Video has direct consequences beyond those noted above. Video promotes sectoral, regional, national and international communication in a way which is both new (ie easier than ever) and old (we could have done this for years and we did – a bit). Harvard Law School can bring together discussion of Richard Susskind and Mark Cohen to a world audience. The Law Centres Network of England and Wales can broadcast sessions in its annual conference from its Australian counterparts as easily as it involves its English members. The Public Law Project can set up a conference for providers in the west of England which will be as easy to attend from Penzance, London or Portland (Oregon or Maine). All these events have been organised in the last couple of months. Video is going to transform us. It will change how we conduct outreach; client communication and inter-agency communication.
Video may also play a part in overcoming digital exclusion. If communication can be visual then some of the problems people may have in obtaining web assistance.
Trend 3: more shared experience
The third trend follows, in part, from the above. Much work on the front line of access to justice is pretty atomised, individual and a hard lonely slog. There is little uplifting – except from the individual result – in getting an official to follow regulations or to exercise discretion in a humane way. But video opens up the greater collectivisation of experience. We can already see the successes of organisations like rightsnet in England and Wales or the Self Represented Litigants Network in the US as digital resources for hard pressed activists otherwise facing an isolated existence out in the field. And, who knows how far this process will go. At the moment, all this is rather atomised and something like the LCN conference seems like ‘a one off’ but this is a trend whose momentum is going to grow.
Trend four: more digital self empowerment
And the fourth trend wraps up issues which were noted separately five years ago: a range of ways in which digital services can empower people to resolve more of their legal problems through self help provision like automated documentation or guided pathways through website information. This applies to standalone provision. For example, Law for Life and AdviceNow have just upgraded their self-assembly review form for personal independence payments. It also applies to the growing use of ‘blended services’ where automated and digital provision is mixed, in different ways and to different degrees, with traditionally delivered services. This now looks perhaps more of the way forward than the simple development of video remote provision predicted previously. An example would be the FLOWS project which combines experienced family lawyers offering paid for fixed fee services mixed in with automated assistance.
Digital self empowerment will clearly not work for all. The problems of digital exclusion will continue but we can expect the numbers of those excluded to reduce – particularly as government services generally go ‘digital first’ and people are required to develop digital competence to obtain a whole range of services.
Trend 5: the effect of court and tribunal digitalisation
The digitalisation of courts and tribunals will require a digital response from the agencies dealing with them. You will soon simply not be able to assist a social security claimant in the UK if you lack the digital competence to interact with the digital systems for determining benefit claims. It is interesting to contrast this with the forecast five years ago. Then we might have thought that developments like the Rechtwijzer would lead the process of online dispute resolution. Now it is clear, the world over, that it will be the traditional court structure that will do this – with a range of motives which will include the cost-saving which has been such a driver of reform in England and Wales. The potentially radical edge of new developments – the user focus of the rechtswijzer or of the Civil Resolution Tribunal in British Columbia is vulnerable to being cut away from projects whose ultimate mission is to save money.
Forecasts and the Future
The extent to which these trends will be taken forward over the next five years depends on a number of variables. One element will be the appetite of both users and providers for technological innovation. Both may be exhausted by coping with the pandemic and may just want, as soon as possible, to return to services as they traditionally have been. But, it would seem likely that users will be, as a whole, distinctly more digitally competent than they are now. And providers will have staff who, like other service workers, really want to continue, at least in part, to work remotely and will be motivated to make it work.
Another issue will be available funding. On the one hand, technology appears as new, sexy and attractive to governments. It is being enthusiastically backed as a major factor in the future economy where countries want to be seen to succeed. So there may be special funds made available – as there have been in the UK – for digital development. On the other, post pandemic, there is likely to austerity as never before as services are cut back to pay for the overwhelming cost of the medical emergency – which may well prove to be ongoing for a number of years.
There is a further variable. This will manifest itself differently in different jurisdictions. But it relates to the atomisation of providers and the lack of a strategic leadership capable of taking up all available opportunities. The US is lucky to have the Legal Services Corporation at the head of civil, federally funded legal provision, but that leaves criminal and other civil providers. In England and Wales, we have a confusing mix of providers that include Citizens Advice, other advice provision, law centres and legal aid provision. Canada and Australia are federal jurisdictions where provision is split over the country. Greater ease of communication nationally and internationally will meet the barriers that exist between providers. Whether easier communication will bring different interests together will corresponding greater clout is to be seen.
So, looking back, we can say that the 2016 predictions paid insufficient attention to the deployment of technology internally in ways which we given such a fillip by the pandemic over the last year. They probably also over-emphasised the use of technology in the actual delivery of services. The next five years are likely to be very hard for all forms of government-funded provision – which access to justice largely is. But, technology will provide a potential way of mitigating the pressures. And you have to reckon that it will make more significant change over the next five years than the last.
Pictures from Pixabay.