Technology, Access to Justice and Covid 19: the Mustard Approach

This is a lightly edited version of a presentation to an International Legal Aid Group (ILAG) webinar last week. 

It may be helpful to begin by making explicit the basis on which I am talking. You are getting the view of a UK lawyer from a not for profit sector background with a practical interest in global developments. Not an academic. Not a practitioner. Not an administrator. All fates I have taken good care to avoid.

Since 2014, I have been funded by a domestic charity, the Legal Education Foundation, to encourage the use of technology in access to justice by reporting on global developments.

The whole purpose of this activity is to share learning and stimulate development. Like the lads below, we can now look globally for inspiration more easily than ever before.

And it might be worth noting one initial technological effect of the pandemic on access to justice. It has stimulated a major growth in video discussion like this.

This webinar is itself an indication of how technology can transform an international organisation like ILAG. Hitherto, ILAG has orientated itself largely around biennial physical conferences. And from these, it has a creditable record in facilitating a number of international legal aid trends like quality assurance and access to justice surveys. Growing familiarity with Zoom (or Teams or other competitors) will exponentially increase the speed at which ideas are passed from jurisdiction to jurisdiction. 

The zoom effect is not only international. Video allows organisations to come together within a region, nationally or regionally.

Even after the pandemic is over, people are unlikely to want to face all the difficulties of physical meetings. But they are likely to participate in networks that facilitate communication to a level which was technically possible – but rarely undertaken –  prior to the pandemic. And that is going to play into co-ordination and cross-fertilisation. 

So, an early general consequence of a pandemic which physically locked many of us down in our houses has been paradoxical. It has encouraged communication.

One location can provide an individual paradigm for global experience. So, let us begin with Exeter St David’s Station.

Why? Because, in March, Exeter University Law School was about to open a clinic in the station. Outfitters were at work in a shop within it. The pandemic closed the station; the work stopped; the students largely went home – many of them literally to the far corners of the world; the clinic could not even collect its post because the university was shut. There was a short period of uncertainty. But it was followed by a re-opening of a virtual clinic. Users found workarounds to the disruption such as using their smart phones to photograph documents. Most of them were on email anyway. Technology allowed students still to be paired and supervised wherever they were. The university came through with more resources for supervision.

This is a story which will have been repeated around the world and by all kinds of different providers – from private practice firms to law centres. Indeed, from government to legal aid administrations themselves. At first, it was often a bit hit and miss. Many organisations had very practical problems – often mundanely about the collection and distribution of post. But, by now, most have got a fairly robus technologically-based structure around which they can work. 

It is important, however, to look at what might need refinement. And where there might still be gaps.

You cannot really operate remotely without a robust cloud-based case management system with the sort of resources provided by products like Microsoft Office with its various add-ons. And I am using case management here in its widest sense. You also need some way of communicating with clients and users. This requires them to have certain hardware, software and access somehow to wi fi (something which is now easier but was impeded by the widespread closure of libraries and Starbucks that offered it free). You need strategies for narrowing the digital divide that arises from poverty, lack of skills, language or from culture such as, variously, using trusted friends, freephone advice numbers, free Sim cards etc. You also need analogue fallbacks. Online court procedures may need library zoom rooms or other provision to assist attendance.  

And, for the longer term, organisations need to have appropriate systems for staff training, mentoring, supervision and morale. 

Some of this is general to all organisations. Indeed, one of the best guides to remote working is downloadable from Microsoft. It provides a really good checklist of questions to ask yourself even if you ignore the answers – which point to various handy Microsoft products.

This immediate need for technological assistance – though difficult for some, particularly those underfunded or undercapitalised – happily played to one of the strengths of pre-exisiing technological uptake. The legal aid and access to justice sector was strongest in using technology to assist in its management needs than anywhere else. 

If you entered the pandemic without effective cloud-based case management system, you are unlikely to come out it without one. And that raises an issue for some jurisdictions where historically private practice law firms use commercial software and not for profits tended to use products developed for their own needs but which struggle to provide a commercial level of delivery. Some of these may need more investment to upgrade to provide a level of service never really intended or there may need to be the development of specific ‘front ends’ that integrate community-oriented organisations to commercial products. We shall see.

But the really interesting thing about Covid 19 and technology is the next phase. We all hope that vaccination will make the virus evaporate like dew and it will all be over by Easter. But that seems inherently unlikely given the scale and complexity of the challenge. We will face a massive increase in self-represented litigants and enquirers. And, in any event, people’s behaviour may change radically. People may not want to wait for long periods in waiting rooms and go up to small offices reached by steep and narrow staircases. Even if they are poor and in need of help. And this aversion may continue for some time.

We can predict that providers and users will be looking for changes in the external delivery of services that mirror the internal changes of management. And that would involve an acceleration of pre-existing trends in this direction.

I have looked for a way of mapping the different uses of technology in the service of access to justice. At the risk of appearing to trivialise, I have come up with a mnemonic to help provide a wide enough range of different uses to be helpful in seeking to chart innovation. 

It is MUSTARD. 

And why mustard you ask? 

Well, the M gets management out of the way. That is all the myriad of tools that help and support our work – from word-processing packages to time management systems and on to net-based support organisations.

We then follow with six other areas- these represent by their diversity the different roads down which delivery of services may go. The first phase can be relatively coherently summed up around management. The second will be more disparate because it will comprise a series of approaches in different areas. At one level, at the heart of the difference may be the use of technology as largely a business function in the first phase and a business to individual consumer in the next. The distinctions below simplify and wrap up different elements under one heading but they are designed to encourage a framework for an overview.

U is for user-empowerment. The most obvious specific example would be the growth of self assembly documentation. This has been a route very much followed in the US, spearheaded by organisations like LawHelpInteractive and A2J Author. Between 2006 to 2019, LHI alone generated over 5 million documents for people who simply answered a few key questions and had their document completed automatically. In the UK, we have been much slower to see the potential of this but there are now four self-assembly forms covering a particularly difficult aspect of social security. Behind user-empowerment as a tool is, more generally, user-empowerment as a philosophy. We might need to link up with those bodies – like Namati, Open Society Justice Initiative and HiiL – who are experienced in using this philosophy in their work in low income countries.

A massive future growth of need combined with a likely restriction of funding will mean that legal aid organisations are going to have to give more time for this philosophy. We are going to need to eek out our limited resources even more than currently. We need to encourage people with the skills and knowledge provided in as automated way as possible to handle their own claims. And I dont see that as a bad thing.

S is for Signposting and Referral. Technology is being developed – including elements of AI – to help users in their journey from identifying a legal problem to being referred to the appropriate place of assistance. JusticeConnect in Australia is one example. There are others in the US. We could look at this more for the UK.

T is for Targeting hard to reach communities. The People’s Law School in BC and South West London Law Centres are just two examples of organisations using zoom or equivalent products to provide open training sessions on legal matters like benefit claims in a new way – probably reaching a wider audience than physical sessions. We have to address the issue of digital exclusion and there must remain face to face contact that allows personal services in the traditional way. But the real issue about the digital divide is how to shrink it. And that is something where organisations present today probably have growing experience.

A is for web assistance by of individualised help. Older delegates will remember the Dutch Rechtwijzer. Younger ones can consult MyLawBC. It is possible to take the usually static nature of a traditional website and provide tailored guidance narrowed to individual circumstances through interactive questions and answers. Another version of this is the growth of what are called ‘blended services’. In England and Wales, FLOWS, a service for women survivors of abuse is one example. Justify New York is another. These are programmes where net-based information is interspaced with the intervention of individualised services – in FLOWS case for a fee and in JustFix’s free through community groups.

R is for resolution. The Rechtwijzer showed us the way in which ODR could assimilate ADR and promote online settlement by asynchronously encouraging the parties to agreement. Legal aid providers are, in any event, going to have to incorporate a response to online resolution though the development of remote courts – something which is happening in most of our jurisdictions and with which they will need to interact. This will mean that the humblest office providing assistance with social security, for example, will have to be digitally competent enough to handle online processes.

And finally D. This is for Data Maximisation. We tend to forget this. But technology can trace the data of the calls we get and the actions we take. CitizensAdvice in England and Wales provides wonderful graphs showing the daily trends in checks to its website. Over the Covid pandemic, you can track the relative rise of a succession of issues – benefits, redundancy, evictions and family cases high among them. Useful for both internal planning and external lobbying to government. Difficult to provide if your legal aid scheme is atomised with a weak centre.

This does no more than scratching the surface of the responses that are manifest in relation to the use of technology. There will be a myriad of others but, as the pandemic burns itself out over a devastated world, should not a thousand flowers be encouraged to bloom?

ILAG is a network of legal aid specialists including Chief Executives and Managers from Legal Aid Commissions, high ranking Civil Servants and leading Academics from over two dozen countries. ILAG’s mission is to improve evidence-based policy-making in the field of poverty legal services through discussion and dialogue relating to international developments in policy and research.  ILAG focuses primarily on the particular issues raised in jurisdictions which have established highly developed systems of legal aid. However, ILAG is expanding its brief to include jurisdictions with less developed systems and has in an real interest in how technology can be used to improve access to justice. It plans a virtual conference in the summer of 2021.

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