Brave new world?

Roger Smith reports on the way jurisdictions across the globe are turning to IT to provide greater access to justice. Roger Smith runs www.law-tech-a2j.org which is funded by The Legal Education Foundation to chart developments in the use of technology and access to justice.

A recently published review of developments in technology and access to justice over the last quarter of 2016 shows how the pace of change is picking up around the world (here).

Within the legal sector as a whole, the use of Artificial Intelligence (AI) is becoming increasingly common, with commercial firms falling over themselves to install state of the art provision. Coming up fast on the inside is the massive investment of the courts in going online – though this is yet to filter through to the type of practices concerned with those on low incomes. For them, more routine development of existing programmes is more immediately relevant. But, for everyone some of the underlying issues are becoming of increasing importance.

Artificial Intelligence
Studies pour out on the implications of AI. The last quarter of 2016 saw reports from a committee advising the President of the United States on AI’s general application and a commission established by the American Bar Association looking at the effect of new technology on law which also considered AI. As yet, there may be little direct application of AI in the field of legal services for those on low incomes – for all that there is increasing use of guided legal pathways as, for example, in MyLawBC or in various use of ‘chatbots’.

All of these currently lack the crucial element of AI, the capacity for self-learning by the computer programme. Nevertheless, the indirect effects of the development of AI are likely to impact on legal services for those on low incomes in various indirect ways – through, for example, a potential reduction in the number of commercial lawyers and a consequent diminishment in the pro bono support on offer from their sector of the profession. There may well be direct impacts as well, for example in relation to how AI transforms legal research – particularly in common law, precedent-based jurisdictions.

Online Dispute Resolution (ODR)
ODR has advanced significantly. Our Ministry of Justice is making an ambitious attempt to take a global lead. A report on civil justice in Northern Ireland took a rather cautious view of developing an online small claims court but no such inhibition has restricted progress here.  A final report by Lord Justice Briggs in July (Civil Courts Structure Review) was followed by the announcement of a gung-ho response from the Ministry of Justice, supported by the Lord Chief Justice and the Senior President of Tribunals, in September. England and Wales is driving forward to an online Small Claims Court. Meanwhile, the Civil Resolution Tribunal in British Columbia, a potential prototype that will expand its jurisdiction into small claims from ‘strata disputes’ next year, has heard and published its first case – albeit, and perhaps frustratingly for those concerned, one which does not really showcase its online capabilities. A major conference, Law and Courts in an Online World, was held in Melbourne with a host of international speakers in November – an indication of the widespread attraction of bringing ODR within the existing court structures.

Developmental progress
There was steady progress on innovative programmes which have developed during the year. MyLawBC.com is now functioning and well worth a look at its ‘guided pathway’ methodology. Their more sophisticated Rechtwijzer programme, from which it is derived, is establishing itself in The Netherlands though, interestingly, there are reports of some resistance to the attempt to introduce commercial elements to the package. In England and Wales, Citizens Advice is revamping its website so that it can become a multi-channel source of information and, in the process, has added an innovative and interesting facility to watch the use of its site in real time. Around the world, Illinois Legal Aid Online is developing its online services. Ontario’s community clinics have been experimenting with use of US A2J software that allows greater automatic document production. ‘Robot Lawyers’ have landed in Melbourne.

The standard and evaluation of new initiatives
The issue of the standard and methodology of new initiatives is difficult. On the one hand, there is one enormous amount of enthusiasm for the application of technology to increase access to justice. Hackathons to develop apps within short periods of time have been held in many of the major tech centres around the world from The Hague to Toronto. In addition, a wide range of developers, many of them students, are actively pursuing ideas and innovative approaches. Understandably, journalists wish to encourage them and there is a temptation for uncritical reporting of their achievements. Just occasionally, there are examples of agencies prepared to be brutally transparent in their assessment of a new product. A good example is provided by Victoria Legal Aid in relation to an app that it helped to develop on age requirements. It is becoming clear that we need to develop standards, where appropriate on an international basis, by which we can evaluate the success of innovative products without unduly diminishing the commitment of the thousands involved in their development to give their time, energy and expertise.

Technology and legal education
The application of technology to legal education is beginning to emerge as an issue. Ontario is experimenting with legal practice training which is largely online and run by Ryerson University in Toronto. The high cost of legal training (and the growing uncertainty of subsequent employment) is precipitating calls for ways in which qualification might be made affordable. That is raising issues about regulation and examination as in England and Wales where the Solicitor Regulation Authority is proposing a new Solicitors Qualifying Examination to replace expensive mandatory training requirements.

Leadership
Finally, there is the ticklish issue of strategic leadership. Technology is collapsing previously separate fields. It used to be just about possible to discuss court reform separately from other access to justice issues such as online legal information and advice prior to issue of proceedings. This no longer really makes sense. No one agency or institution entirely fits the role. A number of jurisdictions, particularly in North America, have developed access to justice commissions of one kind or another, often with judicial leadership. Independent legal aid administrators, such as Victoria Legal Aid can bring together the major players. Courts and judges can play a role – as in England and Wales where the Civil Justice Council, chaired by Sir Robin Knowles, has sought to extend its role to access to justice more widely. In appropriate circumstances, it could be a ministry of justice that takes the initiative to develop holistic provision. Had an independent administration of legal aid survived, then that might have taken a lead in the way that the Legal Services Corporation has tried to do. The American Bar Association has attempted to move into the gap by following its report on developments with a newly created Centre for Innovation based in Chicago. In its opening announcement, this is clearly seeking to span the court/legal practice divide: ‘One of its first initiatives will be assisting with a court-annexed online dispute resolution pilot program in New York.’ Coherent leadership over the whole of access to justice may be practically impossible but this review is part of a process of seeking less ambitiously just to decipher and pull together what is going on at a time of breakneck speed of developments.

In England and Wales, Comic Relief has funded a project (Techvsabuse.info) which takes a strategic view of online provision in relation to abuse. This is exactly the sort of initiative that we need. Maybe the big charitable funders can step into the gap opened up by the absence of government bodies. Meanwhile, there may be little strategic leadership but there is a lot of individual action.

Roger Smith

About Roger Smith

Roger is an expert in domestic and international aspects of legal aid, human rights and access to justice. Roger is a visiting professor of law at London South Bank University and an honorary professor at the University of Kent. He is a solicitor and has been director of the Legal Action Group, JUSTICE and West Hampstead Community Law Centre as well as director of policy and legal education at the Law Society, London, and solicitor to the Child Poverty Action Group. Roger was awarded an OBE in 2009 and received a lifetime achievement award from the Law Society in October 2012

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