Mary Juetten, an American expert on the use of technology in the law and CEO of Evolve Law has written a piece intriguingly headed ‘What is the Technology needed for Access to Justice’ in the ABA Journal. It is a good title: and follows a companion piece entitled ‘How can technology solve our access to justice crisis?’. How would we answer this question from a domestic English and Welsh perspective?
The obvious response, of which Ms Juetten is obviously aware, is that the questions have a logical flaw. Technology, by itself, is not an answer to anything – certainly not access to justice. Indeed, those who suffer exclusion from justice may well not express any desire for technology at all. They might just want a walking, talking, breathing lawyer like everyone else. Witness the dislike of defendants for video connections to courts: they want to be where the action is, not isolated in a small booth miles away. Similarly, the most sophisticated chatbot is not much use as the bailiffs break down the door to your rented flat and put your stuff out on the pavement (sidewalk, for American readers). Technology is particularly bad at dealing with inherent power imbalances between parties.
England and Wales has a different history from the US in relation to legal aid but it has arrived at very much the same place. Eligibility for civil legal aid has been cut in terms both of scope and financial qualification. By 2008, the percentage of households eligible for legal aid on financial grounds was 29 per cent, roughly equivalent to the percentage of households in receipt of means-tested benefits (Universal Credit is expected to go to 7m households in 2018 when the total number of households is estimated to be just under 25 million: legal aid eligibility is likely to have fallen since 2008). Centrally funded legal advice has been largely withdrawn for social welfare (poverty) law since cuts implemented by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The number of not for profit legal advice has reduced by more than a half – from 3226 in 2005 to 1462 in 2015. Legal aid was withdrawn without replacement in relation to most matrimonial cases. Largely as a consequence of that cut, legal aid private practice providers have fallen by 20 per cent in five years – from 2393.
So, we are a jurisdiction which knows from the experience of our recent past exactly where our ‘justice gaps’ are. They are: those, largely women on low incomes, who used to receive assistance in matrimonial cases; those with cases relating to matters like housing disrepair and social security failures who used to be helped under the legal advice scheme; those on low incomes with a range of legal problems, including small businesses, for which legal aid was never available; those now reduced to litigating in person in civil cases; and those, from the most marginalised communities, who have always fallen through the net of available provision for reasons of lack of language, cognitive or other skills. The government has been consistently criticised, not least by the Justice Select Committee of the House of Commons for refusing to research the numbers affected by the recent cuts – though it has now agreed to undertake some study.
Technology is evidently no answer on its own to helping these excluded groups. For a start, the digital divide will extend the communities excluded by the haphazard and limited provision of services – by adding to them those who cannot effectively access digital communication.
But, there are at least four ways in which technology can help to extend the reach and leverage the use of such services as do exist by supplementing – and not replacing – physical provision.
First, technology can help bring down the cost of commercially provided services to representatives of Richard Susskind’s ‘latent legal market’, those who would buy services if they were cheap enough. And that could happen through greater investment and development of case support services specifically designed for low cost areas where much of the administration would be done through technology in the form of pre-consultation questionnaires; consultation/post consultation prompts; and user-completed forms supervised by practitioners.
Second, technology can do much of the heavy lifting in terms of the provision of legal information, education and simple advice. We are on the cusp of a revolution in the digital provision of information where we move from traditional linear provision as exemplified by the Citizens Advice site to the interactive possibilities first exemplified by the Rechtwijzer and now to found in sites like MyLawBC.com. This is based on guided pathways that take you to information tailored for your particular problem rather than setting it all out in one screed like a textbook.
Third, technology can help litigants in person. We know this from the Royal Courts of Justice CourtNav programme and also the legacy of the Rechtwijzer which showed how a litigant in person could receive both advice, mediation and adjudication through the net. We also have the example of the Civil Resolution Tribunal in British Columbia and its innovative Solution Explorer which seeks to bridge the gap between information, advice and the court.
And, finally, we stand on the brink of a general revolution in digital communication with the animation possible through developments like chatbots, ultimately boosted by artificial intelligence. Until recently, it looked as if the Australian Disability Insurance Agency might take the lead with its development of Nadia, a chatbot voiced by Cate Blanchett which would answer queries put to it by the public about the new benefit. Alas, it seems that the supporting technology, which is IBM Watson, is too slow; the cost may be too high; and development is currently stalled. Nevertheless, as we get used to Siri and other voice activated assistants, the potential to shift the interface with a computer to the oral from a keyboard will not only revolutionise our use of home shopping and central heating: it has fantastic possibilities for a quantum leap in the use of net to answer legal questions. And you can also see this foreshadowed in developments like the much-hyped chatbot DoNotPay programme and its derivatives.
So, can technology solve what has become widely known as the justice gap on both sides of the Atlantic? No, it can’t. But, can technology help alleviate the justice gap? Yes, it can. No one should minimise the problems or shorten the time frame. Pathfinder programmes like Nadia and the Rechtwijzer have hit the buffers – at least temporarily. But, that is what we have to continue to work for – if only because in England and Wales, the days of full legal aid coverage are not coming back and in the US they are never going to arrive.