Access to Justice and Technology: An Overview

This is a draft of a speech to be given on Thursday at London South Bank University to be followed by Nicola Tulk of NESTA.

I spent a part of Tuesday in a wrangle with Vodafone. This involved a visit to a shop; two telephone conversations with physical customer service representatives; and two interactions with a chatbot, one anonymous and the other called TOBi. I obtained a satisfactory result. I can’t complain about that. The process was, however, rather woeful and the bots did not shine. They were very crude. These are much more sophisticated. 

They are the result of Samsung’s Neon programme. They are visual. They have been designed to be attractive. And they are. The worst thing in their design is actually their voice which still  seems robotic. 

The second picture is of Nadia. She is also a digitally created bot.

Her voice, by contrast, is entrancing because it was based on that of the gorgeous actress Cate Blanchett. She was intended to save the Australians from the cost of a call centre dealing with queries about a new disability insurance scheme. Alas, the Artificial Intelligence by which she was powered, IBM Watson, proved inadequate; the government worried about cost overruns and she was killed off along with the project. But what she left was an indication of how developments in the commercial world will – are bound to – influence those in the access to justice sector, even if it has relatively restrained amounts of money. 

The disparity in resources is striking. Credible estimates of the expenditure on legal tech around the world last year amount to just under $1.25bn. It depends how you define access to justice but my estimate of what was spent on projects solely or mainly concerned to improve access to justice would not really exceed $50m or around £35m. There is the aggregate of relatively small amounts from charitable funders like the Legal Education Foundation or the Lottery Community Fund here; some from legal aid administrations like the the US Legal Services Corporation which has an annual budget of around $4m for piloting technical initiatives; and some direct funding from governments like that which resources the NESTA/SRA legal access challenge about which Nicola will talk in a moment. What is more, the general climate of legal aid funding around the world is dire – well illustrated by our own experience. Since cuts introduced by the Coalition Government – and generally known as the LASPO reforms after their enabling legislation – funds for much general advice and for family law have been slashed. That has set up even more pressure on the not for profit providers who could once rely on referral to lawyers to back up their initial advice and information. And they themselves are under funding pressures from central and local government. So, technology is advancing just at the point when access to justice provision is being squeezed in an unprecedented way. 

Technology is inherently international where law is not. So, this is a field which benefits from an international perspective. And this is what I have tried to give in the blog funded by the Legal Education Foundation: law-tech-a2j.org and the various reports that I have written on developments over the last five years or so. An international perspective is particularly important when each individual country’s investment is hampered by lack of resources. We need to learn from as many sources as possible.

The Big Five

Overall, I think there are five ‘big questions’ to answer – the Big Five. I want to write about these more in so do turn to the blog over the next couple of weeks if you are interested. I am going to list them now but tonight I have only time really to look at the first two. I put the others down as trailers for discussion – either in the future or at the end of this session. I will look at them only briefly.

So, my Big Five are: 

  1. How can tech improve access to justice?
  2. Have we learnt any lessons already?
  3. How can we evaluate developments in access to justice?
  4. What developments in the use of tech by others eg courts, government departments, commercial providers have implications for access to justice?
  5. Can a forward strategy be developed?

To address the first, we need some form of roadmap of the different ways in which technology can be used. Now this is a methodological minefield because there are so many prisms through which you can look. For example, you can divide developments by intended user; by topic; by regional coverage etc. Whatever the target, however, I think that most technology can be divided up under seven headings under which most provision can be divided. These are:

Searchable matching databases; Form and Document Automation; Practice Management and Delivery; Legal Research and Analytics; Legal Education; Online Dispute Resolution; Online user guidance

Online User Guidance

Each of these can be further divided. It would be tedious to go through each one and Nicola will illustrate a number from the NESTA prize winners. But just as an example of how different technologies can be used to deliver the same function, let us just consider what might be the best examples of online user guidance around the world. My list would include various different categories from various countries.

Static and aimed directly at users – citizensadvice.org.uk (UK); Static and aimed at advisers – ASKcpag (UK) and rightsnet (UK); Interactive – Justice42 (Dutch) and its predecessor, the Rechtwijzer; Guided Pathways – MyLawBC (Canada); Interactive Chatbot – Nadia (defunct – Australia); Guided self assembly documentation (A2J Author – US); Integrated individualised advice and automated assistance (FLOWS – a NESTA winner – UK)

Lessons

We can return to mapping later but let us move on for now to the second question: what, if anything, have we learnt?

I think there are some lessons that we can already draw. 

First, the major impact of technology on access to justice has been the ‘trickle down’ effect of business innovation developed for other markets. I am just going to read out very quickly a list of practice management and delivery tools into which Quinten Steenhuis now of Suffolk Law School in the US suggests we could divide this single category: 

    1. Intake tools (collect information from the user and provide to case management system)
    2. Legal writing helper tools (plain language, table of authority generation, citation checkers, etc.)
    3. Billing, invoice generation, and time-tracking tools
    4. Electronic case filing
    5. Case management systems / electronic record systems. 
    6. Miscellaneous case management tools
    • Digital signature tools
    • Document collection tools
    • Pure collaboration tools
    • Pure communication tools  (where I would draw attention to the possibilities of video for remote communication between adviser and user)
    1. Dedicated contract writing and analysis tools
    • Self-proving contracts
    1. Tools to help litigants navigate the dispute preparation process:
    • Electronic discovery tools (search, classify, tag large volumes of data)
    • Tickler/reminder tools
    • Mapping tools
    • Tools that help collect and organize information to use in litigation
    • Tools that help you organize and present a narrative (story-telling tools)

 

This is where most not for profit advice agencies or low budget legal providers have – and will – obtain most return on technological investment – most ‘bang for their buck’.

Second, the United States, in particular, can show us the value of technologically assisted document self-completion. Its A2J author is a world leader as a programme that allows organisations to draft their own self-completion journeys.

We have nothing so impressive. But there are now a number of British versions of self-assembly appeal, claim or review letters for a problematic but important benefit known as a Personal Independence Payment.  These are published by CPAG, a small south of England organisation known as SeAp and AdviceNow. In addition, legal publishing behemoth Lexis Nexis developed a version for pro bono use. They are all different in detail but they all help to get a claimant to address their mind to the bureaucratic need to describe their condition in a way which matches that of the Department of Work and Pensions and entitles them to the appropriate number of points for which their assessment should result. This involves grappling with difficult issues that require careful description, particularly in relation to conditions that vary over time during a day or a longer period. 

Third, most of the best uses of technology combine it with some form of individualised advice. So, the Citizens Advice site is linked to its bureaux. FLOWS combines digital guidance for abused women with access to individuals. Technology is unlikely to prove a ‘fire and forget’ medium.

Finally, we know that digital exclusion exists and for a variety of reasons. We don’t know exactly how many people are excluded from using technology but it may well be a quarter of those on low incomes or 6-10 per cent of people overall. So, we will need mixed provision for this reason alone.

I am going to rush through my last three headings.

Evaluation

The bain of any researcher in technological developments in access to justice is that organisations are, perhaps predictably, cagey about revealing figures – of users, satisfaction or others. Few feel strong enough to admit that their pilot was a dud. When it happens – as with a Victoria Legal Aid assessment of an age app for young people – it shines out and reports on lessons from which others can learn.  This gave the disappointing download figures; admitted the mistake of basing the add on a version of android that rapidly went out of date; had information that advisers thought that users should want but it turned out they didn’t; and, crucially and for a variety of reasons, soon did not work. We need more providers to be honest about their experiences. As a sector, we don’t have enough money for everyone to learn individually.

Implications of the work of others

By 2023, the government expects all benefit applications and all appeals to tribunals and applications to courts to be made online in furtherance of its ‘digital first’ agenda. That will have a tremendous effect on those advising and assisting claimants, appellants and litigants. They will need good online capability themselves. It may also mean that, down the tracks, and as technology  takes care of procedure, advisers will need to be more knowledgeable about the substance of claims and disputes – potentially changing the role of volunteers and pro bono assisters.

Forward Strategy 

Developing a strategy for future development or even present learning in a field so diverse – nationally and internationally – is hard. The organisations dont really exist. And it is particularly difficult here where the Government abolished the Legal Services Commission which might have undertaken this role. Whether the Ministry of Justice on the one hand and a range of bodies from the access to justice sector – say the Access to Justice Foundation could do this between them is to be seen. 

But strategic vision and comprehensive analysis is a tall order. In the absence of one demonstrable lead organisation, there is a real potential role for those in universities and with experience of provision to make a contribution. That, given the LSBU direction of travel could be you. Hopefully this contribution and the one from Nicola to follow will help you get some form of handle on current developments.

 

 

 

The illustration is a painting by Italian Futurist Tulio Crali. It is currently on view at the Estorick Gallery in London in an exhibition of his work well worth a visit before the darkness of coronavirus descends on us all.

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