Discerning Patterns and Moving Beyond the Random: Unbundling 2.0

Much innovative use of technology in the service of access to justice has proved pretty random. There are a number of reasons from this – many of them related to low levels of funding and relatively small institutional players. No doubt, much development will continue in this way, probably more so as the access to justice sector around the world struggles in a post-Covid world . But let’s see how we might fit haphazard global developments within a framework which helps understanding and could focus further development. 

Looking back on the last decade, it is – unsurprisingly perhaps – projects with large institutional backing that have had the disproportionately highest impact. The stand out leader is the Dutch Rechtwijzer. This remains a towering achievement backed by a Legal Aid Board, a research institute and a US software firm. It was devised with global ambition. Its demonstration of the potential use of dynamic conversation with users; its guidance of users through a process; and the high quality of its design remain inspirational. Of course, it failed – but for reasons that were little to do with the product and more with the surrounding politics. Second would be ‘Nadia’, developed by Australia’s National Disability Insurance Scheme. This is now largely forgotten except by those involved in the production of what should have been a world-leading chatbot with a realistic visual presence dealing with advice. The government pulled the plug on its funding – AI not advanced enough. Third comes the US Legal Services Commission with its grant funding programme and principles in technical initiatives. This centralised approach, among other achievements, galvanised the use of automated self-assembly documentation and responsive design. Fourth is slightly different in form – the ‘trickle down’ impact of commercially legal productivity tools like Microsoft 365 or various case management systems. These are what kept the sector afloat during Covid. Finally, the access to justice sector is being influenced by the digitalisation of the courts, accelerated by Covid, though it is probably fair to say that this is foreseeable rather than actual in most jurisdictions.

Access to justice is poorly funded. Much provision is hand to mouth. Increasing use is being made of pro bono schemes that use the free time of commercial lawyers to stretch the elastoplast (band aid for US readers) over the gaps. Few have the time, energy and money to invest in really significant change. And understandably. 

But, if you stare into the fog that covers the landmasses of the world to discern coherent themes that might change the pattern of the future, some emerge from the gloom. Let us state at the beginning what does not. There is no sign of a mega-tanker sweeping through the seas with an all singing and all dancing AI driven cargo.  AI is useful as a gap-filler, a magnifier of existing resources,  a force-multiplier. No more and no less. Australia’s Nadia provides an example. She was going to empathise with your emotional state; she was going to speak with the voice of a world-leading actress; she had been designed to be attractive and unthreatening to all ages and genders. She would answer all your questions about a new disability insurance scheme.The AI was not powerful enough. The cost was too high. Nadia would have produced a prototype potentially useful for all information providers: it all proved too difficult. Her time may come again but we should have learned lessons from earlier hubris. 

So, with this context let’s look at some themes of current development with future possibilities, In part, this is an exercise in provocation. Would these be your choice? Does the argument make sense?

Theme 1: Maximising the dynamic potential of the web and Unbundling 2.0

The most exciting development seems to be the activation fo the dynamic potential of the web. We are just at the beginning of this with – to be honest – some pretty rudimentary initiatives like chatbots and document self assembly. But we need to be more ambitious. Our task should not simply be the provision of better information or assistance with documents: it is to help people actually solve their legal problems. So we need to move to a much more dynamic understanding of ‘unbundling’: we need not to just provide information for users but help them to use it – in real time. 

So, we are talking about helping people through a process by, for example, providing the same type of case management support as we might expect as practitioners. Users should be able to get reminders of significant dates and actions they need to take by logging into systems that will provide this for them – as CitizenshipWorks does for immigration cases in  the US. This will help you as a user with pretty much the same tools as it will provide for a specialist practitioner. And that should go miles beyond simple document assembly. It involves setting out the milestones in a case and providing the options for the various outcomes. It really should be about transferring the skill of the practitioner into a form useable by all. That is a massively difficult task but we should be able to expect steps along the way towards the end goal – which may never involve total automation but will reduce the cost per case by automating large parts of the existing process.

A further development made possible by developing use of technology is the ‘blending’ of different types and different sources of assistance. Examples of this would be the US Hello Divorce site and the various mixed provision in England and Wales based around family lawyers and national NGO, Law for Life.

2. More sophistication in the provision of information

As part of the process of Unbundling 2.0 will come more sophistication in the use of the net to give information. There will be more blurring between public legal education and casework. Already, you can compare websites with five years ago and see a major improvement of how written information is provided. There is more white space. There is more clarity in words. There is better design. The influence of Margaret Hagan and the importance of law and design is everywhere. You can see the development of things like FAQs and videos to reinforce or provide information in new forms. Users are getting more used to visual methods of communication and the advice sector is slowly adapting.

One really exciting development, led by the BC-based People’s Law School, is the creative use of video to reach new audiences. The School has take the zoom conference and really run with it. You invest in presentation; you choose your presenters; you change the nature of presentation – in the words of its director, ‘We chunk up our 60 minutes into different bits and signal what we are doing in each. Then it is really important the moderator sums up after each segment, making it easier to follow and digest.’ One of the big sells of the law centre movement around the world in the 1970s and 80s was its ability to reach new audiences. Technology will not replace conventional outreach in draft tenant halls but it has proved that it can supplement it.

3. More creative use of data

Data is the new fetish. Everyone wants more of it – though it is not alway clear why and there is the danger in a field like legal services that data, for example on the impact of government policies, is like counting the chairs on the Titanic just before it goes down. Nobody cares. However, data can be useful for feeding back to governments concerned with empirical information and the Citizens Advice website here is a good example of how advice trends can be monitored and reported upon. Legal aid authorities ought to be able to tell governments or anyone else who asks the uptodate movements in case trends. For example, what is happening to domestic abuse now that most Covid lockdowns have ended? Is it continuing to rise or are reported cases falling back? 

And, approaching the issue from a user’s perspective, compare how commercial websites compare with informational ones. These often tell you as the user about usage and the number of people contacting the site. Now this is generally to make you keener to buy something but it also gives you a sense of the value of the site. Surely we want that for advice sites as well. If 5000 people consulted a divorce website in the last month and 500 assembled a document from it then that is information which I, as a potential user, would find helpful. Any provider is going to be nervous about such transparency. But funders should begin to insist. 

5. Better management of practice – internal and external

Covid gave a massive boost to the technological infrastructure of the advice sector and legal services. Everyone had suddenly to be able to operate online. In the first wave came a commitment to basic infrastructure – basic productivity packages, capacity for remote working and so on. The next wave of development will surely be the development of better case and practice management. The big question will be whether the home-grown systems like LegalServer in the US or AdvicePro over here will win out against specie bolt-ons to commercial products like Clio or Microsoft 365. 

Considerable energy has been put, particularly in the US, into the development of legal navigator sites that can manage the process of intake and referral. The current world-leader in this field appears to be a product developed by JusticeConnect in Australia and now being exported – to LawWorks in England and Wales among others. This is where technology is facilitating progress beyond the well established ‘manual’ models of pro bono clearing houses.

6. Coherence, strategy and direction

The experience of the last few years shows all too clearly the need for institutions to lead discussion, debate and development – either by directly controlling it (as in the Legal Services Commission’s technology grants program) or by encouraging development (the Justice and Innovation Group in England and Wales or the Self-Represented Litigants Network in the US). Nationally and internationally, the exploration of the use of technology has been random. Projects have acclaimed their success and then faded away. There is no co-ordination. It has been development by project rather than programme. So, how can we, as a sector with global experience of the same issues, address this deficiency?

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