Legal aid administrations come in all sorts of shapes and sizes – from the minimalist sub-departments of Ministries in New Zealand and England and Wales to the independent management role of the US Legal Services Corporation (LSC). But, whatever their role, they face a situation where technology is transforming legal services where, in the words of a recent study by the Law Society of England and Wales ‘business as usual may not be an option for many, indeed for any, traditional legal service providers’.
Legal Aid’s response to technology is given some immediacy by the fate of the innovative Rechtwijzer programme developed by the Dutch Legal Aid Board at some expense and now abandoned. Does this show, as the English judge Sir Thomas Etherton suggested in a recent lecture that ‘The Rechtwijzer’s failure should properly be seen as more a consequence of individuals preferring the courts to resolve their disputes than their rejection of online processes’? In other words by implication, should legal aid move out of the way and leave dispute resolution to the professional? Will its failure prove a check on the ambition of legal aid administrations?
Let’s leave for another time the potential role of legal aid in ODR. There are at least three other ways in which legal aid administrations can engage in technology. First, they have a domestic leadership role – which they can fulfil in a variety of different ways. Second, they can shape, implement and inspire innovation in delivery. The third possibility is more difficult. Legal aid administrations all have limited funding and, thereby, limited opportunity for innovation. They can seek to maximise the bang for their buck by the sharing between them of rigorous monitoring and evaluation of innovation on a global basis.
Perhaps unsurprisingly as the cradle of the technological innovation, the United States was early into discussion of a strategic approach to be adopted by the LSC. Its first ‘summit’ in 1998 led to the establishment of the significant Technology Initiative Grant (TIG) programme in 2000. A further summit, culminating in 2013, came up with a blueprint for further development of technology with five main components that did, in fact, subsequently serve to set the direction of the TIG programme :
1 Creating in each state a unified “legal portal” which, by an automated triage process, directs persons needing legal assistance to the most appropriate form of assistance and guides self-represented litigants through the entire legal process
2 Deploying sophisticated document assembly applications to support the creation of legal documents by service providers and by litigants themselves and linking the document creation process to the delivery of legal information and limited scope legal representation
3 Taking advantage of mobile technologies to reach more persons more effectively
4 Applying business process/analysis to all access-to-justice activities to make them as efficient as practicable
5 Developing “expert systems” to assist lawyers and other services providers.
The LSC is now into the implementation of these priorities. An example of less directed leadership would be the two day Wired Justice conference held in Ontario last September and organised by Legal Aid Ontario, the Legal Services Society of British Columbia and Osgoode Hall Law School. This included a glittering array of speakers both present in person and through the internet. This was live streamed on the net.
There are a variety of ways in which legal aid administrations can inspire or deploy innovation in the delivery of their own services, for example:
Most legal aid administrations cover issues of eligibility on their websites. Some – like Legal Aid Ontario have even designed apps. A number of jurisdictions have websites which aspire to giving close to comprehensive legal information. One example would be Citizensadvice.org.uk – though it is not actually funded through legal aid. Another, which does receive legal aid funding, is Community Legal Education Ontario (CLEO) which is the lead organisation in a group of statutory and other bodies (including the Law Society of Upper Canada and the courts) that produce the Steps for Justice website. This is designed to:
• Equip people to work through their legal problems through simple, easy-to-understand steps
• Provide practical tools such as checklists, fillable forms and self-help guides
• Give referral information for legal and social services across Ontario
• Connect people via live chat and email-based support for answers to additional questions.
The Steps to Justice promise of ‘practical tools’ is being increasingly delivered by the best information sites. For example, the current version of the website of Illinois Legal Aid Online (13 July 2017) contains links to a child support payment calculator, a library of forms to be self-completed and a visual aid to foreclosure. The provision of ‘Frequently Asked Questions’ on a number of sites is a step towards a processing of information traditionally provided in a linear fashion.
triage, intake and referral
The creation of state-wide legal ‘portals’ capable of dealing with intake and referral was, as stated above, one of the five priorities of the LSC technology summit reporting in 2013. Subsequently, support has been obtained from Microsoft up to a value of $1m for two demonstration models in Alaska and Hawaii. Illinois Legal Aid Online, which is actually funded from local rather than national sources, presumably shows the model to be developed. This has some self help information and assistance but is particularly focused on identifying pro bono and legal aid provision that will be helpful to users.
The most evident form of technology based self-help is automated document assembly – something which can be provided at various degrees of complexity. Much use has been made of the A2J software developed at Chicago-Kent College of Law and made available through the LSC network to other grantees. It links simple cartoons with HotDocs automated document assembly to provide a variety of forms self-completed by users for use in courts and elsewhere. Various other sites around the world deploy such technology and its advance was one of the LSC priorities in 2013.
The furthest point in individual advice on legal aid websites so far is represented by the Rechtwijzer devised by the Dutch Legal Aid Board and MyLawBC which was developed with help from the Rechtwijzer team by the Legal Services Society of British Columbia. For this purpose, the first version of Rechtwijzer (1.0) should probably be considered separately from the second (2.0) version that incorporated an element of online dispute resolution. The radical element of version 1.0 was the way that it used the interactive capacities of the internet to draw out from users individual issues about their case and circumstances from which to tailor an individualised response. The hope for legal aid administrations is that this use of technology could bring down costs and meet needs for which resources were otherwise unavailable. The extent to which this can successfully be done is still to be seen in evaluations of MyLawBC and the Rechtwijzer’s Dutch successor.
A number of legal aid boards use SMS (text) messaging with clients (eg the South Africa Legal Aid Board) and video communication with clients to create elements of virtual practice.
Legal aid administrations are very aware, as is much of government, of the advantages of such developments as online submission of applications and, more generally, online management. But the use of technology can extend beyond such developments. A recent paper (to be published) to the International Legal Aid Group conference in June 2017 set out the approach of the Legal Aid Board of South Africa – which is a deliverer of services as well as a funder – to building up automated document generation in a standard form throughout the whole of the organisation: ‘The generation of automated documents for legal process was identified as a tool that can minimise the time spent on drafting documents and effectively free up time for legal practitioners to attend to more complex legal work.’
Public legal education
Some legal aid administrations – particularly in Canada and Australia – are under a statutory duty to provide public legal education. The opportunity to do that overlaps with the use of internet to provide information discussed above but also extends to the use of web-based material to provide material which may be specifically helpful to a user. An example is provided by a number of legal aid bodies which provide some form of advocacy coaching. For example, the US Legal Services Corporation provided funding for a project at the Innovation Lab, NorthEastern University School of Law, NuLawLab for a gaming approach to representation (http://nulawlab.org/view/online-simulation-for-self-represented-parties). There might be reservations over the usefulness of this particular approach but none surely for the potential. Self-help representation is an area where the work of legal aid administrations may, in some jurisdictions, say California, blends into responsibilities assumed by the courts themselves.
Sharing and global leadership
Legal aid administrations are familiar with operating in their domestic circumstances. They know how to respond to local conditions. They are familiar too with their domestic politics – in the Legal Services Corporation’s case, almost too much as yet another President goes for zero funding. They are increasingly familiar with sharing ideas internationally. Quality assurance and legal needs surveys are just two practices which have gone round the world – very largely because of the existing of the International Legal Aid Group which since 1992 has held conferences that seek to bring together a wide range of legal aid administrations and academics. But, as budgets get tight, so travel funds gets scarcer and harder to justify to domestic audiences. Technology is, of course, international and you can begin to see the consequences. The Rechtwijzer inspired developments in British Columbia and may yet show fruit in England and Wales. A family law programme developed by an NGO in British Columbia (Families Change from the Justice Education Society) has gone national in Canada and is used in some parts of the United States from California to Maine. Sharing evaluation does not come with a lager cost than an email or a webcast. It needs to be recognised in the next phase of development so that all jurisdictions can get the benefit of lessons learnt by one. It would be a tragedy if the loss of the Rechtwijzer set back international co-operation in access to justice. After all, courts may be able to implement ODR more easily than legal aid but that could be because they can force litigants to use it rather than to tempt, cajole and enthuse.