A guest post by Professor Roger Smith
Attitudes to technology in access to justice might beneficially follow the trajectory of the earlier debate about the best way to deliver legal aid services.
Back in the day – which, for this purpose would be roughly between 1970 and 2000 – there was rigorous debate about which form of legal aid delivery was the best.
In one corner, led by England and Wales and followed by Bar associations almost everywhere, we had the advocates of private practice. In the other, led by the legal service movement in the United States and picked up by radical voices around the world, we had the devotees of strategically directed salaried legal services.
In the end, there was a general, if not universal, coalescence around the idea of a mixed economy or ‘different horses for different courses’. We certainly need a similar process to happen in relation to thinking about the use of technology.
Moving to such a nuanced position demands something from those who have thrown themselves into advocating the use of technology. Their leader is Richard Susskind.
He has for decades advocated a five-step understanding of technology’s use in the law. We begin with traditional ‘bespoke’ individualised services. We standardise them. We systematise them. We package them. And, finally, we ‘commoditise’ them.
And what did Professor Susskind mean by that? Commoditised work is, according to his book Tommorrow’s Lawyers, “legal work that is so commonplace and routinisable that it can be made available in open-source spirit on the Web. I acknowledge that lawyers will not benefit commercially form the commoditisation of legal services in this sense but I urge that commoditisation of will be fundamental in radically increasing access to justice”.
No one can deny the impact and importance of Professor Susskind’s contribution to debate. He has been a unique influence on both the legal profession and the judiciary. He has been absolutely right to underline the value of self-assembly legal documentation as packaged, systemised, standardised services.
He could legitimately criticise non-governmental organisations in England and Wales for being considerably slower than their counterparts in the US in their development.
But the step to commoditisation needs more examination. For a start and as a general point, lawyers may be too smart to give away their Crown jewels and, in fact, have made strenuous efforts to contain the process at the systematised stage where they benefit, rather than lose, from technological advances. Hence, the proliferation of corporate law firms controlling their own legal incubators.
But, specifically in the field of access to justice discussed by Professor Susskind, there are particular issues to be considered.
Specific examples of developments in the use of technology that have been bred from the failure of simple commoditisation make the point. First, there are two projects that have arisen in England and Wales to fill the gap in advice caused by the government decision to cut legal aid in many family cases.
Public legal education provider Law for Life has combined with the leading organisation of family lawyers in England and Wales, Resolution, to provide an integrated service. “The model of the pilot being tested is fairly simple. Resolution lawyers provide a menu of unbundled but pre-determined services at a fixed price: Law for Life integrates their offers into its pre-existing guides – beginning with three of the most popular relevant to divorce.”
A similar collaboration is represented by Finding Legal Options for Women Survivors. This is “a collaboration between two existing organisations with strong track records in their fields. Rights of Women is an organisation which does what it says on the tin. It is a well-established and well-respected organisation providing legal advice and information on, and campaigning for, the rights of women. Royal Courts of Justice (RCJ) Advice is a similar long-standing and respectable part of the Citizens Advice network.
“In partnership with Freshfields, it has developed CourtNav, an online tool for completion of divorce petitions linked to pro bono lawyer support and checking.”
A similar development can be seen in the housing field in New York. Justfix.nyc is a not for profit housing organisation operating in New York. It provides a range of tenant services through technology. You can see a variety of videos about its work. It combines self-assembly documentation to build and file a case with linking users to community organisations that can help.
The app structures the collection of evidence and prompts users to take action. One of the three co-founders, Georges Clement, explained in an interview: “We want to get individual tenants in touch with the advocacy community whenever possible, so for particular cases that means actually connecting with a legal aid provider and getting a free attorney.
“Oftentimes, this also means getting in touch with a tenant-organizing group. So these are community-based grassroots groups that will help buildings with especially acute issues to put together a tenant association and start to take collective action.
“And, obviously, collective action is an incredibly powerful lever in this system, and so whenever possible, we want to get people banding together with their neighbours who are oftentimes facing very similar issues.”
The emerging description for these types of combined assistance is ‘blended services’. They bridge automated and individualised (‘bespoke’ if you like) provision in the same sort of way that the ‘mixed economy’ metaphor did for service delivery 20 years ago.
This is the opposite of ‘fire and forget’, commoditised services. It is leveraging the deployment of expensive individual resources through technological automation of part of the process.
We have to face up to the fact that blended services are hard to organise. They demand significant co-operation and resources from different organisations and the deployment of technology that pulls together different provision and whose advocates do not argue that technology by itself is the answer.
But the idea is giving birth to a number of initiatives that surely look like the way forward in providing a context for an expansion of much-needed services at a time of what is pretty soon going to be unparalleled austerity.
And certainly the exercise of thinking through what services might be blended in a particular jurisdiction, and how, should trigger a productive discussion.
This is an edited version of a entry that Roger first published on his Law, Technology and Access to Justice blog