If you had to summarise global developments – albeit from a UK perspective – on how technology was being used to aid access to justice over the last half of 2017, what would you select as important?
In a report for the Legal Education Foundation (which funds this site) I chose four themes: the general progress of thinking about technology and its application specifically in the wider legal services market; an evaluation of the Dutch Rechtwijzer project which failed during the period; the Online Court programme in England and Wales; and a roundup of developments organised geographically around British Columbia (somewhat of a global hotbed) and thematically around the growth of interactivity (with developments such as the use of Skype, chatbots and the ultimately overambitious Nadia project in New South Wales).
It is fair to say that at the end of last year, I felt more pessimistic about developments than I do at the beginning of this – which may be a mark of the speed of change; the danger of capture by too national a perspective; or an indication of irrational mood swings. It is also the result of specific encouragement from a visit to the team behind the reincarnation of the Rechtwijzer which has offers a continuation of its world-leading approach; attendance at a globally focused conference but on by the Hague Institute for Innovation of Law (HiiL – one of the three institutions behind the Rechtwijzer); and an inspiring conference from the US Legal Services Commission. These all happened after my copy was submitted.
No domestic English reader is, however, likely to complain of an over-pessimistic assessment of legal services in England and Wales at the current time. It is all pretty dire. A Coalition and now a Conservative government have sliced into legal aid as they have into every area of public service. Providers, both for profit and not for profit, are vacating areas of expertise and practice painfully built up since the 1970s. Just when the blaze at Grenfell Towers shows the need for provision like that provided by North Kensington Law Centre, it is being cut back around the country. And what makes it difficult to fight back is that this is part of a more general onslaught. Nothing is happening in legal aid which is not occurring in libraries, community care and even – Heaven help us – the armed services, the police and prisons. In this context, the advance of technology in access to justice is slow and halting, dependent on individual foundations making individual decisions in the midst of a sector that would, by and large, regard keeping going as a pretty major success.
Technology has not, of course, stopped in sympathy with the demise of domestic public services. It is racing on and we need, as do all citizens, to keep abreast of what is happening. The report does this by covering two rather different publications – ‘Machine, Platform, Crowd’ by McAfee and Brynjolfsson and a report on the ‘Open Economy’ by Samsung – and two London conferences – one from LegalFutures and the other from Legal Geek. Between these and additional attention to the growth of (and hype about) artificial intelligence, you can get some idea of the trajectory of future development. AI, digital delivery and new funding mechanisms are transforming the commercial legal sector before our eyes. One fundamental issue is the extent to which there will be a trickle down effect to low income provision or whether legal services will bifurcate into a technology rich upper end and technology poor basic provision.
The Rechtwijzer was important, not only for itself but as a poster child for the proposition that all legal services, even for those on low incomes, could be transformed by technology. Members of the HiiL staff fanned out across the world to address conferences and gatherings about the possibilities. Its package was taken up by – and survives in – MyLawBC.com and was nearly used by the English organisation, Relate, but rejected after testing. HiiL’s Professor Maurits Barendrecht analysed the reasons for the Rechtwijzer failure in this blog. His article is repeated in the half year report – as is my analysis of his conclusions. It is my view that the problems were less structural than contingent to the particular project which had, at its heart, a potentially difficult alliance between three very different organisations put under way too optimistic financial assumptions.
Among the Rechtwijzer consequences is probably the Online Court programme of Her Majesty’s Courts and Tribunals Service (HMCTS) in England and Wales. In a webcast yesterday, Colin Rule (once of Modria and now of Tyler Technologies) lauded the programme as a global leader. In the face of this, HMCTS no doubt feels affronted by the scepticism of domestic observers of its efforts – ‘Why do they keep saying that you can’t even get reliable wi-fi in the Royal Courts of Justice?’. But there are some questions to be asked about a major programme being rushed through on the finance from court sales. These are both practical and constitutional. For example, how much are we committed to public hearings in important cases both criminal and civil? Does it matter if justice goes, effectively, underground? Well, yes it does, particularly in criminal cases. England is currently convulsed by a parole case in which the Parole Board has decided to release a prisoner convicted for rape for opaque reasons. A crowd funding website is raising money for a judicial review. That is an extreme example but the essence of criminal justice is that it is public justice – even in the lower courts. Which is not to say that many hearings of various different types cannot safely go online. We just need a public debate about the value of the public realm in the justice system.
There is a danger when you live in the dark to over-romanticise the light but British Columbia has a number of projects which show the way forward. They include the online Civil Resolution Tribunal, MyLawBC.com and the work of the Justice Education Society. All I can say is ‘Check them out’. They may not be perfect but they show considerable promise. As too does the growth of web-based interactivity. England and Wales has come late to online document self-assembly and the use of Skype. But, examples – discussed in the report – are beginning to appear.
And, finally, we are beginning to see the emergence of what could set off a new generation of provision: the conversational interface with computers exemplified by Siri, Alexa and various (currently underwhelming) chatbots. Beware of the hype – the danger of which the Australian Nadia project seems, at least temporarily to have found out (IBM Watson was frankly just not good enough) – but these could have a transformative effect on delivery moving beyond a need for literacy and keyboard skills to communication by voice. And they raise the issue of ‘sleeping with google’ – linking with the data harvesters like Google and Facebook covered in some morerecent posts.
So, that was my opportunity to summarise developments over the six months to last December. Want to make any comments or criticisms; point out any omissions or errors? Get in touch: rsmith@rogersmith.info.