Something remarkable happened after publication of the last post on July 13th on automated document self-assembly. This was based on examination of a a self-assembly letter drafted by LawHelpInteractive for Montana Legal Services Association. Google Analytics reported that around over 400 people consulted the site that day, the overwhelming majority within an hour of publication. There may be issues here about how Google’s programme works in detail but I prefer to take this as an indication of global interest in the methodology of taking an example of international interest in a DIY digital approach to legal problem-solving. So let’s squeeze a bit more out of the lemon: what else can we learn from deconstructing one example in one jurisdiction of an approach to a very common problem in virtually all?
I should repeat a disclaimer. This article is certainly not intended to peddle cheap criticism from a smart arse London lawyer picking on a draft where a number of people have been trying to do their best thousands of miles away. This is an attempt to see how much we can learn from one randomly picked example. If we are freed of the regulatory, financial and other constraints on the actual drafters of this letter, how might be it best be undertaken? What would be the lessons that we could learn from the process?
The points in the last week’s post were largely about presentation and drafting. The letter that emerged from the Monana/LawHelpIneractive drafting exercise is set out in Appendix 1. you can make up your own mind about the suggestions made last week. As interestingly perhaps, you can consult a number of providers of templates for similar letters. Just covering England and Wales, there are a number. Wonder.legal, which appears to be a largely commercially focused site covering 26 jurisdictions, has a nice template which you fill in by Q and A. And, as you would expect, the big hitters in the domestic not for profit advice market have examples too. Consumers Association’s Which has a template letter which seeks to block off potential landlord comebacks: we ‘returned all sets of key to you/your letting agent’; ‘we have fulfilled all the contractual obligations set out in our tenancy agreement’; ‘we have paid all bills up to date and no damage has been caused to the property’. It ends with a specific invocation of actions: ‘If we do not hear from you within five working days we shall assume that you are withholding our deposit unfairly and will therefore be applying to the tenancy deposit protection service that safeguards my deposit and request an adjudication and final settlement.’
As you would expect, Shelter, as the national housing charity for England and Wales, has the best suite of letters. This begins with the template set out at appendix 2. The rest take you through a dispute as it develops – ending with letters before action.
And here we get close to the nub of a key issue. How do we define the problem we are trying to solve? Montana’s efforts in automating their original letter were funded by the Legal Services Corporation, the US federal funder of civil legal aid. This is still following priorities articulated at technology summits in 2012 and 2013, one of which was described as ‘Deploying sophisticated document assembly applications to support the creation of legal documents by service providers and by litigants themselves.’ And this indicates one of the reasons why the US leads the world in doing exactly what the LSC said was on to be on the tin. Aided by national resources through LawHelpInteractive.org and tools like a2jauthor, there is considerable national support, completely lacking in jurisdictions like those in the UK, for drafting interactive template.
But, suppose it was time – after the successes in terms of document production of the last couple of decades – to look at the statement of purpose again? And suppose the objective was reframed as ‘assisting litigants to resolve their civil legal problems through deploying sophisticated document assembly applications with appropriate assistance from service providers’? Nothing changes but everything changes. The elements remain but the focus is on the resolution of problems not the production of documents. That must surely be right.
There are two elements to the identification of relevant issues which suggest that simple production of a DIY template may not be enough – if our policy aim is to produce materials which will empower people without specialist skills to resolve foreseeable problems with problems. The first is that facts are rarely simple. Montana chose to draft their letter for a landlord who could raise no issues about return of the deposit because the time limit had passed. But, what about the landlord who inflates or invents final cleaning costs? That is pretty common: we need something to deal with that. And, secondly, suppose the landlord does not respond or respond adequately to the initial letter. How does the dispute get escalated?
Montana, Shelter and some other letter template providers seek to deal with these complications by embedding their templates – automatically completable or not – with instructional advice. But surely the ultimate answer will lie in bringing all the possible combinations together is some form of dynamic way so that the user is curated through a process which is sufficiently sophisticated to allow for different factual circumstances and progress through time. So we might be looking at something more like an app which incorporated more time prompts, more recognition of the detail, more integrated assistance through court enforcement if that is required. We can see glimpses of some of this within assistance provided for divorce in a number of jurisdictions. If legal assistance, not for profit or otherwise, is to continue to be unavailable for those with problems that require legal resolution then this has to be the new frontier. And we must watch for what develops.
There is one final general note to add. We could put in a lot of time and money on the collective provision of individual assistance in relation to tenant deposits. But, actually, if governments or landlords agreed, this could all be rendered unnecessary by a statutory or otherwise mandatory scheme for the third party holding of tenant deposits. In that case, you would end up with something like the Tenancy Deposit Scheme in England and Wales. As it happens, this provides what it requires as an example of best practice in the provision of digital ADR. This merits consideration of its own – in a sense, under a different heading. However, as London prepares for a day of forecast 30 degree weather and somehow compatible flood and heat warnings, consideration of this can wait for another day – perhaps after the long-awaited summer break.
Date: July 12, 2021
5000 Southgate Drive
Billings, MT 59101
17300 Q Street
Ralston NE, MT 68127
Dear: Edward Johnson,
I moved out of the residence I rented from you at:
306 6th Avenue, North Billings, MT 59101-1500 .
I moved out on: April 30, 2021.
I paid you a security deposit when I moved in. I paid you $2,000.00.
It has been 30 days or more since I moved out.
You have returned $0.00 to me, which is less than my full deposit.
You have not given any part of my security deposit back to me.
But you did not give me a list of charges that you took from my security deposit within 30 days after my tenancy ended. Section 70-25-203, MCA, says you cannot keep any of the security deposit for damages and cleaning charges.
Please send me what you owe on my security deposit. You can mail the check to me at this address:
5000 Southgate Drive
Billings, MT 59101
Please respond to this letter within 14 days. If you do not respond, I may file a lawsuit against you about my security deposit.
Shelter letter [Add your address]
[Add the date]
[Add your landlord’s address]
Dear [Add your landlord’s name],
Request for a deposit to be refunded for [add address of property you rented]
I am the former tenant/lodger [delete one] of the above address, which you rented to me from [add date] to [add date].
The property has been left in good order and the rent was fully paid.
I am writing concerning the deposit I paid to you on [add date] as a security against my obligations under the terms of my agreement.
As the landlord you are responsible for returning the deposit, even if it was paid to a letting agent on your behalf.
Please refund the full amount of my deposit to me within 10 days of receipt of this letter.
I look forward to your prompt reply.
[Add your name]
Contact telephone number: [Add your phone number]