This is the fourth assessment of an issue to be covered in a prospective analysis of current developments and likely trends in access to justice and technology. You are encouraged to comment by email or twitter.
Technology has brought new prominence to – and new opportunities for – an old idea: legal empowerment. The Engine Room defined this in a global review (a must read if you are interested in the topic), ‘legal empowerment is an approach that focuses not on directly resolving people’s problems for them but on explaining to people how the law affects them on a day-to-day basis, improving their ability to access formal justice systems, and empowering people to change the law.’
The idea has been backed by some large international development organisations, including the UN. It established a Commission on Legal Empowerment of the Poor in 2005 as the ‘first global initiative to focus on the link between exclusion, poverty and the law.’ Professor Stephen Golub, an economist who wrote widely on the topic, was influential and the idea struck a cord internationally focused justice organisations like the Open Society Justice Initiative, Namati and HiiL. Golub was always flexible on definition (‘In some ways, legal empowerment is just a catch-all term for an array of activities and strategies that sometimes go by other names.’) but he reported himself as favouring ‘the use of law and rights specifically to help increase disadvantaged populations control over their lives’.
The original idea of legal empowerment was developed with little relation to technology. Its origin is sometimes cited in the work of paralegal activists in South Africa during the later days of apartheid. In his magisterial review of mid-1970s legal services developments in the UK, Professor Michael Zander (in ‘Legal Services for the Community’, Temple Smith, 1978) – covered the topic under the somewhat less sexy heading of ‘DIY law’: ‘There is great official interest in the topic, partly in order to save the cost of legal aid payments to lawyers and partly to respond to the growing strength of the ‘do it yourself’ movement in the field of legal services.’
The Engine Room explains how technology can give new impetus to this old concept: ‘To its proponents, technology offers a more efficient means of providing legal services to a wider range of people. Specifically, they argue, technology offers the potential to expand legal advice providers’ geographic reach; allow people to help themselves more effectively; and reduce costs related to hiring lawyers and specialist providers. Legal information presented in a way that ordinary people can understand, and through readily accessible channels, also has the potential to level the playing field between legal professionals and others — and thus reduce inequities in access to justice.
It is valuable perhaps at this point to take a little peek into the legal services movements of the 1960s and 70s. There were voices arguing that the object of legal services should be the individual empowerment of users to solve their own problems, as Michael Zander correctly reported. However, in both the US and the UK, the main emphasis was on collective legal empowerment. This is Earl Johnson Jr, the US’s Legal Services Corporation’s second director, on ‘community organisation’ as a potential priority for the new commission (“Justice and Reform: the formative years of the American Legal Services Program”, Transaction Books, 1978). It would have involved ‘a concerted drive to organise poor people into groups that could exert pressure in the political and private economic spheres.’ For the US, this remained a road not taken in preference to an emphasis on ‘law reform’.
In the UK, community empowerment remained at least the publicly stated goal of law centres: ‘It is … the duty of those who seek to provide legal services in poor and working class communities to concentrate their resources on helping people of those communities to create organisations capable of helping their members with their collective difficulties.’ (‘Towards Equal Justice’ Law Centres Working Group, 1975).
Contemporary discussion of legal empowerment omits this community orientation – which may, indeed, be very much of its time. The Engine Room gives this list of purposes in the use of technology for legal empowerment – ‘to help people diagnose legal problems themselves; help people assess their entitlement to benefits or legal assistance; provide people with legal information that is easier to understand and access; give individuals legal information that is customised to their specific need; support people through processes such as representing themselves or resolving disputes; generate legal documents; connect people to organisations that can provide assistance.’
It might help to get a handle on the potential of technology in legal empowerment if we can illustrate its use. There are various ways in which this could be done. The Engine Room identifies the following: ‘static [web]sites’, guided pathways to legal information; guided pathways to specialised legal advisers; live chat features; document assembly; online dispute resolution; structured data collection for use in legal cases; chatbots.
I would actually structure for purposes here slightly differently by reference to function. Technology can bring improvements to:
- the provision of legal information – to include static and dynamic websites;
- the processes of triage and referral;
- interactive approaches to resolving users’ legal issues – to include document assembly and assisted case management;
- ‘blended’ forms of digital and individual assistance;
- data collection in the reporting and aggregating of users’ legal issues.
improvements to digital legal information
Services like Citizens Advice in England and Wales have poured resources into basic information websites. Citizens Advice is an interesting case because its latest set of goals now talks not of digital as a separate stream but specifically of the service aiming to provide ‘a seamless customer journey that allows people to move between online, phone and face to face support without repeating themselves’. That is an important move and allows for the use of integrated chat facilities and assistance such as chatbots. Citizens Advice success has been such that in March 2020, at the beginning of the first Coronavirus lockdown, that its website managed its ‘“busiest week in history”, with more than 2.2 million views.’
The Citizens Advice website opens with a simple single question: ‘how can we help?”. You are then efficiently directed to specific topics related to your query. Illinois Legal Aid Online gives you both an open question and then nine specific subject areas as an option. JusticeConnect in Australia opens with three options: help for yourself, refer someone and help for your organisation. Each of these three organisations would probably be seen as world leaders in information provision. There is no inherent advantage in how you do it. What is noticeable from all these sites is the role of design – deploying well colour, type, pictures and presentation.
There is a sliver of a difference between offering opening options to narrow a search and proffering a guided pathway through a problem. MyLawBC illustrates the difference. Its front page offer is: ’Get an action plan for your legal issue. Choose a pathway, answer questions, and get your action plan.’ This heralds an automated service but one providing a series of choices for the user which guides them to a prospective approach and culminates in an individualised action plan. BC’s Justice Education Society is an example of an organisation offering a live chat facility on its website. It also provides an example of an organisation offering a variety of media including guides, help articles and videos on topics.
Triage and referral
The US has led the way in terms of developing comprehensive legal assistance ‘portals’ that will automate the process of intake and referral. The Pew Charitable Trusts and the Legal Services Corporation, in particular, have been associated with their development. This is how Pew defined a portal in a 2019 Fact Sheet ‘A portal is an online gateway to legal resources tailored to each user’s needs. Unlike a static website, a portal uses an interactive approach to guide users through an assessment of their legal needs and connect them to relevant information and referrals for assistance and support. To be effective, a portal must include three key elements: Technology. A simple user interface that people can navigate on their own. Content. Relevant, actionable information to help users research and resolve their situations. Connection. Referrals to appropriate service providers.’ Pew see portals as using evolving technologies such as natural language processing to decode user’s questions from ordinary to legal language; automated decision-making on triage; automated communication with all parties concerned; and machine learning to improve performance.
The use of advanced technology such as artificial intelligence is at an early stage and we have yet to see the success of projects like Spot, developed by Suffolk University’s Legal Innovation and Technology Lab. It is a computerised issue spotter. Give Spot a non-lawyer’s description of a situation, and it returns a list of likely issues from the National Subject Matter Index [NSMI], version 2′. This ‘provides a centralized, comprehensive taxonomy of topics for the legal aid community by which documents and data can be indexed.’
Spot may take some time to come to full fruition as an entry tool but already we can see technology making a difference to end referral. A number of organisations, like ILAO and JusticeConnect, have automated referral programmes – ripe for AI at some stage – to ‘provid[e] a quick tool for sector colleagues to use to check whether a person they are assisting is likely to be eligible for a Justice Connect service, and then use the tool to make a warm referral of that person to Justice Connect for assistance.’ JusiceConnect’s Kate Fazio explained the benefits back in 2018: ‘“We have 10,000 pro bono lawyers in our network wanting to help – our challenge is processing the high number of requests for help we receive. This tool will be a game changer in linking people with free legal help. We estimate that we’ll release a further 20,000 hours of pro bono over the two years after release.’
Interactive resolution tools like document assembly
Many legal issues are advanced through documents – from benefit applications to Supreme Court cases. The US leads the world in automated document assembly in an access to justice context. And this is very much thanks to the work of the Center for Access to Justice and Technology at Chicago Kent University which launched the influential and much used A2J author programme in 2005. This is an expert system and user interface … for helping self-represented litigants complete court forms or navigate a legal process. Students, lawyers, and technologists can create A2J Guided Interviews® that ask step-by-step questions written in plain language that help self-represented litigants enter information needed on the form. Those answers can then be assembled into a completed document that the user can print and file with the court.’ The UK has been slow to followbut we do now have three examples in relation to personal indolence payments. The potential seems enormous, both to establish automated and sequential completion of forms and to provide ‘just in time’ information on why the content is necessary and advice on how to present your claim.
An interesting development in England and Wales is the emergence of projects which combine elements of face to face delivery and automated digital elements. Law for Life has combined with the leading organisation of family lawyers in England and Wales, Resolution, to provide an integrated service. ‘The model of the pilot being tested is fairly simple. Resolution lawyers provide a menu of unbundled but pre-determined services at a fixed price: Law for Life integrates their offers into its pre-existing guides – beginning with three of the most popular relevant to divorce.’
A similar collaboration is represented by Finding Legal Options for Women Survivors. This is ‘a collaboration between two existing organisations with strong track records in their fields. Rights of Women (ROW) is an organisation which does what it says on the tin. It is a well-established and well-respected organisation providing legal advice and information on, and campaigning for, the rights of women. Royal Courts of Justice (RCJ) Advice is a similar long-standing and respectable part of the Citizens Advice network. In partnership with Freshfields, it has developed CourtNav, an online tool for completion of divorce petitions linked to pro bono lawyer support and checking.’
A similar development can be seen in the housing field in New York. Justfix.nyc is a not for profit housing organisation operating in New York. It provides a range of tenant services through technology. You can see a variety of videos about its work. It combines self-assembly documentation to build and file a case with linking users to community organisations that can help. One of the three co-founders, Georges Clement, explained some of the more straightforward technological objectives in an interview: ‘One is: [tenants] actually had to present things as printed-out photos in court; and another thing that JustFix helps them do is actually pull out what’s called the “metadata” of a photo – so the exact time, date and location the photo was taken – to verify that this photo was taken in their apartment at this particular day.’
Project Callisto is a further example of a blended service combining individual and automated elements but with an added element using the privacy possible through digital provision.. It addresses the issue of sexual assault and harassment on campus universities. The academic institutions join the project; employ counsellors; women (generally but not exclusively) are given the opportunity to record incidents which are protected by code and matched only by name of alleged perpetrator if a subsequent encoded report is made by someone else; if the names match then the counselling system comes into operation and the victims can, if they wish, be assisted. It is an interesting way of using the particular attributes of digital recording and has been followed by a number of similar projects.
Less esoterically, Citizens Advice has been able to produce graphic representation of website use during the pandemic. As a result of a work by consultancy Sigma, it has the capacity to report on user activity which sets the standard for the rest of the world. This has been neatly displayed in a report published this month in which it tracks use of its site during lockdown.
The idea of legal empowerment is likely to be a major factor in developments in the use of technology over the next decade. The idea has all the advantages and the disadvantages that existed before technology played such an increased role. But cuts to traditional forms of legal aid; increased pressure as a result of much wider levels of poverty post-pandemic are likely to encourage a joining up of experience in developed and developing countries. With its increased deployment will come two particular issues to be further explored later – how can a wide spread of different projects be fashioned into a coherent whole? Who or what can lead this process? And, a separate question, what will be the impact of digital poverty that might exclude some of the most needy users?