Digitalisation of the Courts and Litigants in Person

This morning, global law firm Allen and Overy hosted a fundraiser/discussion for Support through Court (StC) (formerly known as the Personal Support Unit).

StC is an admirable organisation which supports self-represented litigants in person in England and Wales. To do this, it deploys around 750 volunteers around the country. Its form will be familiar to many other jurisdictions with equivalent organisations. StC gets through a 75,000 cases a year and survives on supplementing a £700,000 or so ($1m) grant from the Ministry of Justice with a roughly equivalent amount of other income from miscellaneous sources. So, StC knows the runners and riders in the subject matter of its breakfast presentation:  ‘Digitalisation of the Courts: opportunities and challenges to empower Litigants in Person’.

The speakers raised a number of issues and contained a couple of representatives of tech start ups hoping to make a profit from opening up court data and facilitating e-documents. The major theme, however, was the impact of the court digitalisation programme on litigants in person. Behind this lies continuing widespread dismay that the Government had abolished in its 2012 reforms the legal advice scheme which for nigh on 50 years would have provided mainstream legal assistance from legal aid practitioners for those on low incomes. Everyone, including the courts, is still scrambling to fill the resulting gap in provision.

An obvious problem of shifting to digital first court delivery is what you do with those who are digitally excluded for any number of a variety of reasons. Lizzie Irons of StC thought that they would be  – and would be likely to continue to be – something like 6 to 10 per cent of the population. Any such estimate is pretty much guesswork: my own would be slightly higher. And 10 or even 6 per cent of the whole population represents a much higher proportion of those on low incomes. This is an area where we need much more research – and of a nuanced nature. There was a lot of talk about how litigants in person access the net: they tend to use mobile phones. This is not, frankly, the medium through which I would try to draft a tricky and important document. 

Other issues also emerged. Judge Chris Lethem has been the judicial lead on the courts Online Civil Money Claims programme. He talked about ‘Case Builder’ which Her Majesty’s Courts and Tribunals Service (HMCTS) will introduce later this year or early next. This is a document assembly programme based on the answers to 20 questions which will help a litigant in person to draft their case. So, for example, it opens by asking the litigant to identify their type of case from a menu and then draws out the nature of their claim. It will allow documents to be uploaded. It will give the opportunity for the parties to set out a time line

The interesting point of this development is where it goes. Judge Lethem himself raised the issue of whether the adoption of approaches like this by the courts would alter the area of assistance that users would need – and, in turn, affect what pro bono or other advisers would want to provide. If the courts could automate the process of a claim then users would not need so much information about that – how to fill in the claim form and so on – but would still need assistance on legal aspects of their claim.

So, for example, the court digital programme might help a litigant in person to get a negligence claim under way for a road accident. But, users would still need assistance on quantum of damages and liability. That would be relying on technology to do what we know technology can do: relieve people of the repetitive and routine but leave the kernel of substance. That leads on to a place well beyond where Judge Lethem went – in such circumstances, can we still rely on unqualified advisers or do litigants really need lawyers like they used to be able to get on legal aid?

The other potential development is within the court. All the rhetoric of the court service is that they are not replicating existing court processes, they are remodelling them. But, case builder, by its name, implies the paradigm from which it derives. It helps you build a case in the classic adversarial form. But suppose the process evolved into something that you might better call ‘case resolver’? That would be to follow the model explored by products like the Rechtwijzer and Justice42. Presentation of each side’s case could be followed by a machine-guided attempt to establish common ground and to limit the areas of dispute – perhaps even suggesting potential settlement terms. Throw in some machine learning and we are advancing to technology assisted resolution – maybe even robojudge itself. 

And there is a further possibility. Courts might evolve what was effectively a paid-for resolution service provided at cheap cost largely by technology. But, seen from the user’s perspective, this would be behind the paywall of court fees (and don’t assume that these are going to be cheap). Why could not the not-for-profit sector (or even the low profit sector) develop a clone and offer resolution at a much cheaper price. That would ge to follow the model of BC’s Civil Resolution Tribunal which provides free assistance in resolving cases before issue. And wouldn’t that be a good idea?

So, StC gave us an interesting morning – even without discussing Courtsdesk which is offering new ways of data mining court information in criminal and civil cases for commercial and media purposes.

 

Main photo from Pixabay by Mohamed Hassan.

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