An Australian study emphasises the need for research on ‘what works, for whom and for what’ in relation to self help materials, digital or otherwise. The report was published by the Law and Justice Foundation of New South Wales in its December Justice Issues and written by Hugh M. McDonald, Suzie Forell and Zhigang Wei.
The study has three characteristics. First, it is a serious piece of research, albeit on somewhat old data – collected in 2008 and published as a Legal Australia-Wide Survey by the Foundation in 2012. Secondly, it puts digital assistance firmly in the context of self help more generally. Third, it asserts that self help, digital or otherwise, is generally best seen as one element of a raft of ways of assisting people with problems and that we need empirically to study what works for what people with what problems at what stage.
Digital assistance was, of course, pretty undeveloped back in 2008. The report posits three historic waves of self help assistance.
The first wave ‘ranged from factsheets and leaflets to self-completed kits for certain types of legal transactions, such as “do-it- yourself” wills and divorce kits. Comprehensive ‘legal handbooks’ were published to increase the lay person’s access to legal information. At the same time the “plain language” legal information movement advocated for legal information to be written in plain English instead of legal jargon.’
‘The second wave saw hardcopy SHRs [self help resources] transferred online and incorporated new digital technology, such as video, as well as tailored online legal information via self-guided decision-trees and the like. Self-help centres, kiosks and information services, annexed to courts, tribunals, libraries and public legal services, were also instituted to enhance access to legal information where people were likely to need or seek it.’
The ‘third wave of “digital innovation and transformation” ushers in sweeping changes, and distinctions between legal information, legal advice and legal resolution pathways blur. Online dispute resolution (ODR) applications, capable of integrating triage, tailored legal information and access to expert advice, guiding users through intake, and canvassing possible solutions and resolution are being rolled out in various jurisdictions.’
In 2008, the report suggests that Australia was in the second wave of development – though it might be that there was still much of the first in operation. The point of the report is that the experience of users at earlier ‘analogue’ stages of these developments can be carried across to later digital developments. In effect, if you needed help to make sense of a leaflet, you are likely also to need assistance to use fancy digital self-assembly documentation.
Digital should not, the authors say, be mistaken for a ‘silver bullet’ exempt from earlier experience – ‘rather, digital solutions appear likely to be most effective when designed to mirror and meet the legal capability and problem-solving behaviours of end users, as augmented by, and augmenting, wider public legal assistance services and infrastructure.’ The consequences are potentially dire for advocates of ‘digital by default’ systems of provision. In practice, the Australian research suggests that in 2008 people often used multiple approaches – or channels – to resolve a legal problem.
Digitalisation can make those channels easier to use: ‘Digital solutions now offer the promise of guided pathways, ODR and AI in multiple embodiments such as natural language inquiry,
chat-bots, virtual assistant avatars, intelligent automation and predictive analytics to help users to clarify legal needs and decide what they what to do next.’ Nevertheless, we need to proceed with care and with research: ‘Whatever their digital form, there are … both legal and digital capability barriers to overcome to enable and empower lay people to use law and legal information to effectively resolve legal problems. For example, research has identified how mismatches between the nature of SHRs and some users’ expectations and behaviours affect usability. Legal capability requires more than legal knowledge, and is constrained by skill, psychological and resource constraints.’
Many – perhaps most, conceivably all – research reports end with a plea for more research. ‘Design and provision of ‘helpful’ SHRs would ideally be informed by knowledge and understanding of user experiences and outcomes. There are, however, substantial gaps in the legal assistance evidence base concerning ‘what works’. While the findings here signal both prospects for, and limits to, digital and other forms of SHRs, we need to know more about the factors affecting uptake and utility to design and provide more effective SHRs.’
The report, however, moves towards one important thesis: the ‘need and capability across the community is likely to require multi-prong, multi-channel strategies, and where some people will require access to more intensive forms of assistance to enjoy equal access to justice.’ In other words, forget digital exclusiveness and concentrate on digital augmentation or supplementation. That seems reasonable.