Law, Technology and Legal Aid Administration

Legal aid administrations clearly have a role in the advance of technology and access to justice. At least in Canada, you generally have a freedom of movement which may seem somewhat constrained to you but is significantly behind the Legal Aid Agency in England. This has become a part of the Ministry of Justice. You have not inconsiderable budgets and a commitment to get the best bang for your buck in the field of access to justice. You have, of course, much of your money tied up in existing provision which it may be foolhardy to threaten. How should you respond to this swirling activity? I have the following suggestions.

First, you are in a unique position to chart what is going on in your jurisdiction in whatever form you think is appropriate. Bar associations like the ABA and Law Societies like that in England and Wales produce papers on future developments, some of which (like the most recent publications from both) are very insightful. But, ultimately, a Bar Association or Law Society has to tread carefully around the interests of its members – some of whom will benefit from the future and others who will suffer. This is particularly because the advent of AI within the commercial sector is pretty well bound to reduce the need for commercial lawyers in the same numbers as now. That is a difficult message for a representative body to articulate. We will not see the end of lawyers – that was just Richard Susskind’s catchy book title. But we are likely to see the diminution in the need for lawyers with a lot of difficult knock on effects in terms of the sustainability of representative bodies and, indeed, of the law schools which feed new entrants into the profession.

Review does not have to be at Provincial level: it can and should include the national and international. Law may be jurisdiction-based but technology is not. It may be that there is value in the kind of overarching forum that you have created in Canada for access to justice but, regardless of collaboration, you need, as legal aid providers, to have some assessment of the impact of new technology on your work. You need to know where new needs are developing, where new solutions are emerging, where new ideas are coming from that can be used in a Canadian context. As far as the international is concerned, this is one of the targets of the Legal Education Foundation for which I work. As far as the local and particular is concerned, only you will know that.

Th point is to watch developments not produce wonderful reports. Were I a CEO of a Legal aid funder I would want quarterly short reports just on one side of A4 from my director of policy on relevant global developments and potential local needs. You need to know what is being done and what routine tasks might be transformed across the services that you offer or fund.

And sometimes discretion is the better part of valour.  Thinking of installing ODR in a small claims court? My advice is to wait.  Let the early adopters take the risks. My government will not listen, of course, but it will regret it. But let us quietly admit that a number of new initiatives will come to a sad end. It would not surprise me if we experienced a period of disappointment with some new projects – and maybe the whole online direction – after an initial honeymoon. That should be expected: it will not affect the onward overall trajectory as we recognise and sort out problems.

Second, you are uniquely placed to encourage the transformation of web-based services, particularly information And advice. You want to watch MyLawBC like hawks, demanding to see the analytics of its use. It is setting a world benchmark. If you are not from BC, how does your assistance in the fields in which it is operating compare? MyLawBC makes the notion that an information website can any longer get away with simply putting a booklet online outdated. The information needs to be processed and made available step by step to the user who gets just what they need. There is the scope for massive value added. I am a bit surprised at how slow the take up is on this front. Our CAB service has notably failed so far to go in this direction. MyLawBC puts Canada in the front rank of web-based advice provision wider than that relating to family matters. I think it will be a soaring success.

There tends to be a rather sterile stand off between the technology hawks and doves. Can people use new technology or not? How many? In what way? My own view is that, unaided, only around half of the population potentially eligible for legal aid have the technological, cultural and literacy skills to resolve problems solely online. That has tremendous implications. It means that it is wrong to go for mandatory ODR or ODD. It means that online should be seen as supplementary to physical. It does not mean that we should not experiment with ways of assisting people – through self-help court centres or other advice provision – to work their way through the digital world. There are a wealth of ways in which digital provision can be supplemented by individual assistance. we need to know what works.

And this takes us to the critical point of evaluation. There needs to be rigorous and publicly shared evaluation of innovative technology projects. There is a lovely piece of work from Victoria Legal Aid in evaluating an app on aspects of consent that it had funded. About 1100 versions were downloaded. If this had been a booklet that would have been the end of it. But actually almost a 1000 were subsequently deleted. There was an obvious difficulty: the app did not work on more advanced android phones. But to the credit of the VLA, it publicly accepted that the real reason was that an app was the wrong format for what it wanted to do. Much better material on child protection if available on the net, at least now – and for example from the National Crime Authority in England and Wales. Google Analytics applied to a website leaves very little place to hide. You can see success and failure over time with agonising precision. Whenever a funder resources a website as a source of assistance then it is really helpful- both to them and to the wider community around the world – if there is also a commitment to open publication both by agency and funder of the analytics of its use. This is how we will resolve the question of what it is that users can and cannot do.

My next role emerges from the others. Legal aid providers need an overall strategy. This both provides a framework for funding and the production of benchmarks. A good example is provided by the US Legal Services Corporation’s Technology Summit in 2013. This prioritised the following six activities: ‘(1) Document assembly for self-represented litigants; (2) better “triage”—that is, identification of the most appropriate form of service for clients in light of the totality of their circumstances; (3) mobile technologies; (4) remote service delivery; (5) expert systems and checklists; and (6) unbundled services.’ This gives a context to individual decisions made by the Corporation’s Technology Initiatives Grant programme. It also invites periodic reconsideration of priorities. For example, I would now argue that guided pathway advice provision should be included. However you do and whatever level, the articulation of some form of strategic vision for the use of technology by legal aid providers seems an important and helpful provision.

Finally, legal aid administrators have to consider – but not be overwhelmed by – the downsides of digital. There are difficulties to the use of technology to provide legal services for those on low incomes. We do know the extent of people’s technological, cultural, intellectual capacities to use technology – all of which are likely to be more formidable barriers than physical access to the net. That is to be resolved. We do not know the best way to combine individual and digital assistance. That is to be explored.

But, there is also  fundamental problem which needs at least to be acknowledged – if only in whispers in dark corners. I become more and more attached to the notion of defensible progress – something than can be missed by politicians and enthusiasts. Governments can be keen on online services when they hold the promise of reducing cost. They are less keen to pay for continuing upkeep and the constant upgrading which keeps commercial providers attuned to the new. More generally, online provision is a good deal easier to cut than physical services. Labour’s initial attempt at online provision of the NHS was just eradicated by an incoming new government – which then eventually had to reinvent something inferior. That, for me, provides a very good practical reason for integrating online with offline and embedding the two together. It is also a good reason for being able to document exactly how useful online is and building support for it. It also means that project funding needs to be spent in a slightly different way that hitherto: you need to keep something back for tweaking and changing.

But I certainly do not want to end on a low note. I am excited about the possibilities which technology is opening up for us. It reminds me of the optimism of my youth in the 1970s as legal aid was expanding to recognise a wider range of the problems faced by the poor and the importance of meeting them. I am really looking forward to tomorrow. And I am happy to end today with discussion, questions and debate on the overview and context of what we will be considering.

This is an excerpt from a keynote speech to #Wired Justice, a conference organised by Legal Aid Ontario.

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