Written evidence from Professor Roger Smith OBE
Covid 19, technology and access to justice: the impact of the pandemic
Roger Smith is a solicitor, a visiting professor at London South Bank University and a former director of JUSTICE and the Legal Action Group. Since 2014, he has been funded by the Legal Education Foundation to follow developments in technology and access to justice. He has written a number of reports for the Foundation and writes regularly in a blog, law-tech-a2j.org.
This paper on Covid 19, technology and access to justice provides an overview of the deployment of technology in access to justice within an international context. It undoubtedly needs more work, particularly to encompass innovative ways of using technology but it seeks to give an indication of how agencies around the world have responded to the common features of a pandemic which has tested their usual working arrangements. The paper is concerned to give an international element to the committee’s consideration of ‘the impact of Covid-19 and the increasing reliance on digital technology to deliver legal advice and court services’.
The impact of Covid 19
- Covid 19 has transformed the way all aspects of our economy and society. Legal services in the field of access to justice are no different. Staff are working differently; services are being reconfigured; organisations are adapting with unprecedented speed. These effects are manifest around the world in legal aid and access to justice organisations of all kinds.
- The response to Covid 19 can be divided into two phases. The first phase was the implementation of internal systems for staff to operate remotely. Agencies and firms all round the world had to set up arrangements for this rapidly in March and April as the pandemic rolled through.
- The second phase is more speculative. It involves facing up to the issue of whether agencies will permanently change their ways of working to adapt to the pandemic. This depends, in part, on how long you see Covid19 impacting on society. The emerging view seems to be that it will linger for some time. Dr Matthias Schmidt, an expert involved in treating some of the early UK cases, thinks that ‘”we will [not] be able to eradicate this disease over the next year or two years. We have to live with it. So our hospital is making plans to live with this for the next year to two years and therefore everybody else has to do that.’
- If coronavirus is going to be with us for this sort of length of time, then providers will have, like everyone else, to adapt.. Everywhere, there seem likely to be spikes of infection; the reimposition of restrictions, like that currently in England’s North or Australia’s Melbourne; continuing fear among staff and users alike of face to face contact in enclosed spaces; and a widespread shift to using the net as already manifest in shopping.
- So, if we seek to list the likely consequences of Covid 19, they would include:
- a major rise of unemployment and consequent rising demand from those who formerly would have been in jobs (and have the associated skills eg with technology) for assistance with issues of debt, benefits, housing security.
- continuing fear among staff and users alike of face to face contact in enclosed spaces;.
- major pressure on governments’ expenditure leading to even greater potential restriction on funds.
- the continuation of the ‘digital divide’ but increasing experience of using the web by a wider range of people.
- Technology impacts on - and has potential relevance for - access to justice organisations in many ways. Attached as an appendix is one attempt to classify and list the ways in which it can be relevant.
- Technology is, of course, only relevant as it is actually used and it is, in practice, very different to separate technology and its implementation.
The implementation of remote working: phase 1
- The immediate lockdowns in March and April required agencies around the world to establish some form of digital presence – if only, at the most basic level, by using personal mobile phones and laptops. But, to operate properly a bit more infrastructure is required – such as systems to allow communications for staff working remotely; ensuring that public phone numbers could continue to be answered (usually through voip or voice over the internet protocol); using online case management systems and so on.
- The crisis struck the whole of the legal sector. Predictably, the large commercial, ‘Biglaw’, firms found the immediate transition the easiest. They often had the systems already in place: ‘One [large US corporate] firm tested its work at home arrangements on Friday and was able to announce that it was shutting down its office on Monday.
- Some smaller advice centres dependent on their own resources found more difficulty, The Law Centres Network for England and Wales reported early on ‘‘Our Law Centres are struggling with their IT needs. Few Law Centres have work-provided equipment that they can use at home (laptops, work mobiles) and others have been struggling to find the right office equipment (using their ironing board as a desk or taking private client calls in cupboards). This present a wide issue that we are trying to address through extra emergency funding.’ That identifies a continuing problem for low paid staff – which many advice and law centre sector employees will be – who are living in constrained accommodation.
- Nevertheless, the transition to remote working by staff seems to have largely been completed at the technological level. Workarounds have evolved for deficiencies – such as the use by clients to photograph documents rather than copy them if they have a mobile phone but no laptop or PC. All this has been critically dependent on technology but has not involved any great level of innovation. For the most part, organisations had at least some groundwork in place and just stepped up a gear. Even those with little originally in place in March have adapted by now because their users have been unable or unwilling to attend offices. Courts and tribunals have often shut or shifted largely to remote working. The cost of technological upgrading may, however, add significantly to the financial pressures on the smallest community-based operations.
- Most commentators think that the move to remote working by staff within wide swathes of the economy will likely to continue and be incorporated within the ‘new normal’ - for all of UK ministers concern that workers return to offices.
- Many Biglaw firms are reconsidering their leases for large, city-centre, atrium-boasting headquarters. As legal aid and advice providers ponder the same process, a fresh range of issues will arise beyond the initial coping strategies. Long-term success of remote working will depend on successful systems to maintain remote mentoring and supervision as well as structures to hold together staff members who physically see each other other - though the likely final pattern will be a blend of staff working from home and in the office. Offices are likely to change, however, for both staff and clients under the demands of social distancing.
- Small advice agencies will have to development management systems similar to those in larger operations and this may prove more of a challenge.
- Remote working will put a strain on the central spine of an organisation’s case management system. There will be organisations which have sailed through the emergency phase but where, longer term, there will be a need to upgrade to commercial-level standard case management systems. Managers will need access to dashboards setting out progress of cases; caseworkers will need prompts for deadlines; standard documentation and procedures will have an obvious advantage; central digitally held case information will be essential. Some agencies will have this. Others may well see the advantage in developing it. Homegrown systems like the UK’s AdvicePro, widely used in the UK, may need to upgrade or cede the way to tailored commercial alternatives. The same may be true of LegalServer, the US equivalent.
- Commercial firms like Clio may see an opportunity to extend into this market with systems that are slicker; have received more investment; and can be individualised more easily.
- Shared case management could take on a positive role in harmonising approaches within the access to justice system. probono.net reported on an immigration project in the US where ‘One provision used quite commonly by immigration projects is Citizenshipworks … This allows users to build their own application for citizenship using tools which they can access directly access from the net or which can be ‘white labelled’ and used by other organisations. The application can then be used as a base for advice along the way by those that need it.’ You can see potentially very interesting ways in which this sort of individually tailored – but basically shared platform that encourages the active management of cases – could be developed within a community of different providers which was sufficiently co-operative.
- The topic of video deserves consideration in itself. Video is currently identified with zoom as vacuum cleaners with hoover. Zoom’s use apparently soared 30-fold in April alone. There have, of course, been widespread worries about its privacy, though – to be fair – the company has sought to address these. There are alternatives – Microsoft Teams or Facebook, for example. Anyway, the ‘zoomboom’ needs consideration. Agencies are using video to keep in touch internally. Video can clearly compensate for lack of personal contact. There is, after all, even a zoom video dating scene with Cosmopolitan reporting that many people think it is better.
- Zoom clearly has potential in terms of training. Harvard Law School, after all, is going online next semester. In the UK and for advisers, the National Association of Welfare Rights Advisers has found going online for its training sessions and Terry Stokes of rightsnet reports,’A recent conference by them attracted almost 500 attendees on Zoom when they would usually get less than 100. NAWRA made attendance free but encouraged people to become members and pay an annual fee.’
- Technology is being used to increase the support to networks in the field. In the US, the Self-Represented Litigants Network has used regular video calls to keep members of its network in touch. Ease of recording allows webinars to be put on the net for wider distribution – as BC’s People’s Law School has done in an upload of a video of a discussion on strategies for public legal information (PLE) to its website.
- So, technology has played a major role in helping agencies adapt internally to the pressures of Covid 19. There seem many lessons to be learnt from shared experience around the world. In the next part of this examination, we will look – a bit more speculatively – at technology’s potential impact on the actual delivery of services to users.
Phase 2 - Changes to external delivery
- Much provision of legal advice for people on low incomes – both in the private and public sector – has traditionally been based on face to face services and community networks of human beings in person. The first response of agencies and firms has been to transfer communication as much as possible to telephone. For those still using – or beginning to return to – an office, thought will have to be given to protection measures such as see-through grills; the wearing of masks and the decontamination of documents; the elimination or diminution of the use of internal waiting rooms. Use of drop in services is likely to be constrained.
- All the above is going to accelerate a shift to information and assistance provided on the net to which people can be directed or find by themselves. For all the problems of digital exclusion, this move has already begun. For example, the Citizens Advice Service has been in the process of shifting information online to relieve the pressure on its traditional advice bureaux. Other jurisdictions have similar digital offerings. The Steps to Justice programme of CLEO in Ontario or Illinois Legal Aid Online in the US. The latter has a Question and Answer front page which allows a degree of dialogue in identifying your problem.
- A site like MyLawBC takes the provision of online information one step further in terms of using guided pathways to take the user through information with a Q and A approach. This makes an interesting comparison with a ‘flat’ two dimensional approach. This curated approach to information seems likely to grow because it begins, at least with the user and then fits the relevant information to their individual need. Agencies are likely to explore how better they can tailor information to users in a more interactive way.
- There are likely to be opportunities here for agencies that wish to deflect queries for users sufficiently adept at using the net to a website that can answer their query. A final report of the recent Legal Access Challenge in the UK recorded that half of the proposals which had received ‘involved an element of tailored guidance, for example supporting users to understand their rights and the options available to them.’
- Guided pathways lead on to the rather more vexed issue of chatbots. We clearly need to explore their potential role in expanding services. It is worth looking at Chicago’s Rentervention as an example of how a chatbot can be portrayed as ‘a Chicago tenant’s best friend’.
- Less ambitious – but still in the field of the interactive provision – is an increase in the development of self-assembly documentation. Here, the US is way ahead of the field – particularly the UK. Yet there are signs even in the UK of interest. The second largest grouping of proposals (a quarter) in the Nesta challenge related to document automation. Somebody in the UK needs to do a deal with A2J author which dominates the US public legal services market for self-assembly documentation. This is ‘is a cloud based software tool that delivers greater access to justice for self-represented litigants by enabling non-technical authors from the courts, clerk’s offices, legal services organizations, and law schools to rapidly build and implement user friendly web-based document assembly projects.’ It is produced by CALI, the Center for Computer Assisted Legal Instruction— there are multiple youtube videos showing you how this works. Basically, the user is asked around half a dozen questions in a visual sequence as they move towards a court house. The programme then produces a document in the appropriate form. The idea is infinitely customisable.
- In the UK, we have had limited experiment with document self-assembly. We have nothing so impressive. But there are now a number of British versions of self-assembly appeal, claim or review letters for a problematic but important benefit known as a Personal Independence Payment. These are published by CPAG, a small south of England organisation known as SeAp and AdviceNow. In addition, legal publishing behemoth Lexis Nexis announced on July 13 the availability of a ‘Simplified Personal Independence Payment (PIP) form, a digitised version of the Department of Works and Pensions’ (DWP) paper-based, handwritten and highly complex PIP form for disability claims in the UK’.
- There will be other developments that are worth exploring over the forthcoming months as agencies are inspired to use their creativity to overcome the restrictions imposed on them by the virus. One step beyond self-assembly documentation is the development of platforms and programmes that assist litigants through the process of resolving their claim. This is the approach taken by Citizenship Works in relation to immigration cases in the US.
- Integrally linked with any of the particular experiments with innovation is a philosophy which deserves more exploration in jurisdictions which have hitherto paid little attention to it. Traditionally, you could see the legal provision for those on low incomes as provided within two different philosophical or political frameworks. The dominant model, followed in the jurisdictions of the UK, is to see such assistance as a public service in which public payment replaces private. That was explicitly the idea behind legal aid. It is precisely why it was advanced by the Law Society after the Second World War. But there is a contrasting – or, at least, complimentary – approach which may be needed to meet increased need with reduced (at least relatively) resources. There is centred entered around the notion of legal empowerment and often associated with developing countries and paralegal provision – as represented by bodies like Namati, the Open Society Justice Initiative or HiiL. Jurisdictions that never had legal aid in anything like adequate levels, like the US, are much more familiar with positive assertions of the value of doing it yourself and opened up the process of developing hybrid forms of approach like unbundling by which expensive legal services can be eked out with a degree of free empowered self-assistance.
- Concepts of legal empowerment are a powerful element of the ideas of public legal education that are so much better implanted in the US and Canada than the UK. An example in the UK of an organisation with the same philosophy would be law for life. And, whether produced by them or others, one might predict a range of initiatives using legal empowerment as an overall concept.
- There is going to be unprecedented incentive for agencies to collaborate, network and develop common strategies and learnings. What are the successful ways of increasing a digital presence while preserving physical assistance for those who will need it? If someone develops a good self-assembly documentation programme, how can others learn about it? Before Covid 19, the transmission of such information was somewhat hit and miss. It was dependent on largely national networks like those of the Self-Represented Litigants Network or Legal Services Corporation in the US or the Litigants in Person or Law Centres Networks in the UK.
- Covid has actually given a boost to national and international liaison through zoom or other similar products. As reported above, Legal Geek’s annual conference in October, traditionally held in London, is going online. The ABA has just announced that its popular annual Techshow, usually held in Chicago in March, will ‘reboot’ as a virtual conference.
- It is apparent from many of the innovative uses of technology in the access to justice field that what is crucial is the way in which it is used and, in particular, how technological innovation is blended with traditional, individualised ways of helping people. Thus, Her Majesty’s Courts and Tribunals Service is using tribunal case workers in immigration appeals to assist users through the digital process. Nesta Legal Access Challenge winner, FLOWS, provides a mixture of digital and individualised services. We should not consider technology in a binary context - desirable or not - but in a blended way - how can we best use it. We should consciously explore projects which blend technology with individualised services to see what works.
- So, overall what can we say? To be honest, the future is pretty bleak. The pandemic rages on , revealing the practical lack of competence of once respected governments in countries like the UK, US and Brazil. It is growing to be a bitter winter - never mind about trying to save Christmas. The economies of all countries will be battered. Legal aid and access to justice budgets are likely to suffer. The world will be a less attractive and more scary place for us all. People will struggle to get help in resolving their increasing legal problems.
- But there are positives. You can see ways in which technology could maximise the power of people to deal with their legal problems. Our task in the next few months will be – both at a national level and and international one – to explore, document and share what can be done. In particular, this paper argues that particular attention might be given to:
- The likelihood of no return to the ‘old normal’. Providers will have to adapt to more remote working by staff and remote consultation by users;
- Tracking the likely tsunami of new need and seeking innovative ways of dealing with it;
- improvement of systems of case management;
- collectively developed standardised ways of handling cases used by a range of different providers;
- the development of more interactivity in websites to assist people to resolve their own problems and the provision of tools to allow them to do so;
- Acceptance of legal empowerment as an underlying philosophy and, thereby, encouragement of ‘unbundling’ and limited self representation to supplement the traditional lawyer-oriented lawyer approach;
- ways in which access to justice organisations can collaborate and organise, nationally and internationally - through government and non-government bodies - and be developed as an integrated whole providing services from basic information to full service representation
- more use of self-assembly documentation and automated tools to assist those handling their own cases.
- explore different ways in which automated technology and individualised services can be blended.