Electronic Paths to Justice
Robin Widdison
Senior Lecturer, Department of Law, University of Durham
Robin.Widdison@durham.ac.uk
Abstract
Despite the recent overhaul of the civil legal aid system, we seem to be no nearer achieving affordable access to law for all. Even today, use of the private legal sector remains the realm of those who are sufficiently well off that they hardly notice the cost of employing a solicitor, or those who are sufficiently poor to qualify for legal aid at little or no cost to themselves. For the rest of us, the fear of high legal fees, or large legal aid contributions, keeps us well away from the private legal sector. The alternative to the unaffordable private sector is the not-for-profit sector comprising, for the most part, advice agencies. While these agencies can offer legal help for free, or at very low cost, there are a number of reasons why they frequently do not provide an adequate substitute a private solicitor. A disturbingly high proportion of people with significant legal problems, therefore, end up either adopting a self-help approach or taking no action at all. How can information and communication technologies be used to assist these people? This article examines this question in relation to three major barriers that stand in the way of those who are prepared to help themselves - knowledge barriers, psychological barriers and access barriers. In relation to each of these three barriers, the article subdivides the discussion into a consideration of the potential developments in online content, computer-mediated communication, and the commoditisation of law and legal processes.
Keywords : Access to justice, civil legal aid, private solicitors, advice agencies, self help, knowledge barriers, psychological barriers, access barriers, information and communication technologies, content, communication, commoditisation.
This is a r efereed article published on 15 December 2003.
Citation : Widdison, R 'Electronic Paths to Justice', 2003 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/03-2/widdison.html>. New Citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1003_2/widdison/>
1. Introduction
Apart from the controversial move to disentitle personal injury claimants, most of whom must now seek help through conditional fee arrangements, [ 1 ] the civil legal aid system seems stuck in a time warp. A recent reprioritisation of existing resources - coupled with new labels, bureaucracies and partnerships - merely obscures the fact that little has changed in decades. This is both good and bad. We must be grateful for the fact that the system has neither been abolished, nor allowed to wither away. On the other hand, in the absence of a willingness by Government to inject substantial new resources into the civil legal aid budget, we are no nearer achieving affordable access to law for all. Even today, litigation remains the realm of those who are sufficiently well off that they hardly notice the cost of employing a private solicitor, or those who are sufficiently poor to qualify for legal aid at little or no cost to themselves. For the rest of us, the fear of high legal fees, or large legal aid contributions, keeps us well away from the private legal sector.
The alternative to the unaffordable private sector is the not-for-profit sector comprising, for the most part, advice agencies. Advice agencies, such as citizens' advice bureaux, law centres and a wide variety of specialist advice centres, are now counted as part of the legal aid system. [2 ] These agencies may be funded by e.g. the Legal Services Commission, local authorities, or by charities. As a result, they are able to offer their services for free, or at very low cost. However, this alternative comes with strings attached. Limited resources usually mean that services provided by such agencies suffer from some or all of the following disadvantages:
· They may only offer general help i.e. basic advice/assistance and referral;
· They may be limited to operating within narrow geographical catchment areas;
· They may suffer from long queues in crowded offices;
· They may be very difficult to contact by telephone;
· They may have very restricted opening hours. [3 ]
All the above factors contribute to the existence of a sizeable element of society that is denied an important right - in some cases, arguably, a human right [4 ] - i.e. effective access to the justice system. This social dilemma has traditionally labelled 'unmet legal need.' More recently, Susskind, in discussing the application of information and communication technologies (ICT) to law, has coined the rather more upbeat expression 'latent legal market' to describe broadly the same thing. [5 ]
Those whose legal needs are unmet fall into two main groups. The first group is the intrepid band of 'self-helpers' who have - or who can acquire - the knowledge, know-how and confidence to take on not only their opponents, but also the justice system itself. According to Genn, these self-helpers comprise an astonishing 35% of private individuals faced with what she terms non-trivial 'justiciable events' [6 ] - i.e. significant legal problems. The second group are the 'lumpers' - outlaws who simply have to do without. Genn estimates the size of this group to be about 5% of all private individuals with significant legal problems.
Without the political will to inject substantial new resources into the civil legal aid system, how might the situation be improved for those whose legal needs are unmet? One way might be to use ICT both to assist the self-helpers to operate more effectively and also to enable a significant proportion of lumpers to join the ranks of the self-helpers. What are the obstacles to achieving this outcome? It is suggested here that they fall into three main categories - knowledge barriers, psychological barriers and access barriers. In the next section, we shall discuss how ICT could be deployed to assist self-helpers to overcome the first of these barriers. In the two subsequent sections, we will consider technological solutions to the psychological and access barriers before saying a few words by way of conclusion.
2. KNOWLEDGE BARRIERS
To make the discussion in this and the following two sections more digestible, we shall divide each of the sections into three subsections. These subsections are labelled content, communication and commoditisation. Content describes non-interactive legal guidance made available on the Internet. Communication covers the possible use by self-helpers of computer-mediated communication - both synchronous and asynchronous. Commoditisation considers the development and deployment of intelligent, interactive guidance packages.
If knowledge is power, as Bacon claimed, how can ICT be used to enable self-helpers to acquire the necessary knowledge and know-how to empower themselves?
Content
An important and obvious way to assist self-helpers is to provide easily accessible content - to place guidance on relevant areas of substantive law and procedure on the Internet. According to the Legal Services Commission:
'The proliferation of websites offering legal information represents an unrivalled opportunity for members of the public to increase their understanding of the legal process and of their rights and responsibilities within it.' [7 ]
Once deployed, such digital guidance would, in due course, become universally available via personal computers, digital televisions and mobile phones. [8 ] Clearly, simply placing raw primary sources and legal textbooks on the Internet is no solution for those who lack any legal education. What, then, is the alternative? Until now, there has been a long tradition of providing lay people with leaflets containing cut-down legal guidance in plain language. However, simply digitising these existing leaflets is not, in the author's opinion, a satisfactory way forward in the digital age. [9 ] In the paper-based era, designing, writing, printing and distributing guidance materials was very resource intensive and expensive. Therefore, publishing guidance in cut-down leaflet form was, at the time, a sensible compromise. It was not ideal for self-helpers, but it was better than nothing. On the Internet, there is no longer any need for either printing or distribution - usually the most expensive parts of the process. Instead, most of the available resources can be focussed on designing and writing content. Leaflets were yesterday's compromise. On the World Wide Web - the hugely powerful, multimedia publishing sector of the Internet - a completely fresh approach is called for. Entrenched ways of thinking about the delivery of content should now be abandoned.
What does this fresh approach to providing online guidance amount to? It is becoming widely accepted that legal guidance needs to be orientated towards 'life episodes' rather than traditional legal categories. [ 10 ] Furthermore, the Legal Services Commission has set out a range of criteria concerning the appearance, form and classification of such online content. [ 11 ] These are important first steps, but much more is needed. While guidance has to be as simple as possible, it should be no simpler. So, guidance should integrate as much knowledge and know-how as is necessary in a practical, step-by-step approach to enable self-helpers to solve their legal problems. In order to make all this knowledge digestible to self-helpers, it is suggested that guidance not only be written in lay people's rather than lawyers' language wherever possible, it should also be structured helpfully, making optimum use of the hypertext paradigm. [ 12 ] Here is one possible structure whereby guidance might be broken up into a progressive series of hyperlinked layers:
· Level 1: Information to enable self-helpers to find out whether they have a problem that can be resolved by legal means.
· Level 2: Information to assist self-helpers to understand their problem in legal terms and to comprehend its nature and context.
· Level 3: Information to give self-helpers a general overview of the types of strategies that are often successful in resolving their problem, and to help them choose an appropriate strategy.
· Level 4: Detailed guidance on implementing each step of the chosen strategy together with references to appropriate legal primary sources.
· Level 5: Access to free online databases of legal primary sources, [ 13 ] suitably supported by appropriate tools such as an online legal dictionary and guidance on how to conduct effective legal research. [ 14 ]
Self-helpers would typically enter the guidance material at level 1. They could then progress at their own pace by drilling down to subsequent levels as and when they were ready to do so.
A common problem with existing leaflets is that they tend to be over-reliant on text. Legal practitioners and academics are trained from the outset to work in an unremittingly textual environment. As Katsh has put it:
'The literature of the law is enormous and contains millions of pages of words that describe, prescribe, predict, persuade, characterize, explain and represent. The vehicle of explanation, persuasion and representation, however, is virtually never non-textual.' [ 15 ]
By contrast, pure text is seldom a digestible medium for non-lawyers. Indeed, for the substantial proportion of the population with limited literacy skills, sole reliance on text is a major additional barrier. [ 16 ] In a multimedia digital environment such as the Internet, purely textual representation is entirely unnecessary. Legal guidance should make much greater use of other media. [ 17 ] Appropriate use of graphics in the form of diagrams and flowcharts can greatly improve the understanding of accompanying text. Images in the form of photographs and illustrations not only support text, they can sometimes substitute for it e.g. with a 'comic-book' format. Sound bites may sometimes have a useful role to play. Best of all, surely, are video clips that e.g. provide short lectures in lay terms on relevant issues, or show other self-helpers going through the various stages of a problem solving strategy.
Needless-to-say, such guidance has to be revised and updated frequently and regularly. This key requirement, coupled with the above recommendations for richer content, structured knowledge, and the use of multimedia may seem like a very great burden to place on any existing organisation, whether national or local. Therefore, why not set up a legal self-help centre for England and Wales - perhaps funded by the Legal Services Commission - whose dual functions would be to create and maintain Internet-based guidance on common legal problems, and also to support the creation and maintenance of such materials by other organisations?
Communication
Even the most intrepid self-helpers will sometimes feel the need for a 'one-off'' consultation with an expert. How can ICT be deployed to assist self-helpers to make such consultations? At present, knowledge-based assistance offered by providers such as private solicitors and advice agencies tends to be on a real time basis. Preference is given to synchronous communication - whether face-to-face, or at a distance via e.g. telephone advice lines. Until now, the asynchronous alternative has often involved the slow, cumbersome process of exchanging correspondence via the post. [ 18 ] However, while Internet communication enhances the synchronous, it hugely enriches the asynchronous.
Perhaps hard-pressed advice agencies could make better use of their limited resources if a significant proportion of queries arrived by email and were dealt with as and when time allowed. Initially, one advice worker or volunteer in each agency could specialise in dealing with email queries. Such advisers would not be expected to give answers instantly as is often the case with synchronous face-to-face or telephone queries. They could take time to research the answer to each query and consult more experienced colleagues before providing the advice by an email reply. These advisers would not need to be available during office hours. They could answer questions whenever they had spare time. Such advisers would not even need to be present on the premises of the advice agency. They could advise from home or from their workplace.
For private solicitors, synchronous could come to mean high peak and high cost while asynchronous could represent low peak and low cost - or, for those prepared to do work on a pro bono basis, free. Furthermore, at present the services provided by private solicitors and advice agencies are based on the idea that clients either obtain some preliminary advice on, say, whether they have a claim, or they hand the claim over to the provider completely for the time that it takes to pursue that claim. In future, providers could provide assistance in ways that fall between these two extremes. They might, for example, support self-helpers by providing snippets of knowledge and know-how, as and when requested, in order to further the ongoing self-help process. Again, asynchronous email could be a particularly good way of seeking and providing such knowledge cheaply or for free. Collections of such snippets could even, in time, be built up into valuable FAQs [ 19 ] that might then be recycled by turning them into Internet-based content. [ 20 ]
How might such a support service work in practice? Private solicitors prepared to offer asynchronous, one-off consultancy to self-helpers could advertise their willingness to provide this form of service. They might charge self-helpers on a 'pay as you go' basis offering advice to anyone at any time in return for a suitable charge based on a fixed fee or on a pre-negotiated quotation. Self-helpers would, therefore, be able to know the exact cost of the advice sought before logging their credit or debit card details and receiving the advice sought. These self-helpers would not be expected to make any further commitment to use the services of the solicitors in question. However, some self-helpers, might, after one or two consultations, decide to seek more conventional 'ongoing' assistance from a solicitor that they had come to trust. Others would be entirely free to continue to use such services on a one-off basis either by seeking advice from the same solicitor or by consulting a different one. The choice would be up to each self-helper.
Commoditisation
Content is flat and non-interactive. Knowledge acquired by communication - even asynchronous communication - might still seem to be relatively expensive or hard to get. Another way forward could be to commoditise content and communication in the form of online legal guidance packages. Such packages would be intelligent, interactive systems dispensing legal knowledge and know-how. They would be made available via the Internet. These packages could take a variety of forms. They might be basic expert systems that assist self-helpers to find out whether they have a legal problem and to choose an appropriate strategy to resolve that problem. They could take the form of 'handholding' intelligent checklists that take self-helpers step-by-step through their chosen problem-solving strategy. Equally, the packages might be document assembly tools designed to assist self-helpers to write appropriately worded letters, fill in online forms and produce other relevant communications.
Legal researchers have been experimenting with the application of artificial intelligence (AI) techniques to law for decades. [ 21 ] Many tend to conclude that AI is permanently stuck at the developmental stage, unable to do useful jobs for legal practitioners. This may or may not be the case. [ 22 ] For self-helpers who otherwise have no access to the justice system, however, simple guidance packages could be a godsend. Susskind has predicted that some legal practitioners will find it commercially attractive to reengineer their expertise by creating such guidance packages and then selling access to the packages cheaply to many users. [ 23 ] Cameron has recently reported that the trend towards this type of commoditisation is gaining momentum. [ 24 ] The development and subsequent maintenance of even basic guidance packages is very resource intensive, though. How can the resources be found to speed up the development and maintenance of such packages?
Perhaps the national legal self-help centre that was proposed above might aim to convert its own step-by-step guidance materials into intelligent, interactive systems. Quick, wholesale conversion seems unlikely, though, even if the centre were to be heavily funded by e.g. the Legal Services Commission. A more practical scenario is that, at first, a small number of simple guidance packages could be created covering discrete areas of law or procedure that lend themselves particularly to this type of approach. Over time, a substantial number of such systems might be developed. Eventually, a critical mass would be reached. At that point, it would become possible to combine many of these tried and tested little systems and, by this means, to construct comprehensive guidance packages. Such a modular approach would ultimately achieve the result of producing sophisticated guidance packages for self-helpers incrementally, and without the need for a massive injection of resources.
3. PSYCHOLOGICAL BARRIERS
Legal problems can be as much of a psychological ordeal as a test of knowledge and perseverance. This is a crucial issue for self-helpers that is often completely overlooked. Genn states that her interviewers asked legal problem-solvers whether they had experienced any of a range of positive and negative feelings. Three out of four respondents reported having experienced such feelings. Of those experiencing negative feelings:
'…almost two thirds of those reporting some impact said that they had found the experience of trying to sort out the problem stressful. Over one-quarter said that they had had difficulty sleeping as a result of trying to sort out the problem (28% of cases) and a similar proportion said that their health had suffered (29%). About one in five of those reporting some impact said that their relationships with family and friends had suffered (20%).' [ 25 ]
A major benefit of handing over one's legal problem to a solicitor or adviser is the resulting relief from worry. The lawyer or adviser, like a medieval champion, takes on the ordeal of conflict, enabling clients to sleep at nights. As Genn observes, respondents 'did not want to be empowered, they wanted to be saved.' [#fn26] Self-helpers have no such champions. In addition to the common emotional hurdle of lack of confidence, the evidence indicates that there may well be a psychological overlay of anxiety and depression, as we have seen. Of course, where moderate to severe stress-related illness sets in, it is vital that self-helpers are encouraged to seek professional medical assistance quickly to enable them to cope. In cases of mild stress or simple lack of confidence, though, could appropriate online digital guidance be offered in close association with the knowledge-based content and access needed to manage one's own legal problem?
Content
The idea of offering support to bolster confidence and to relieve the effects of mild stress via content on the Internet may, at first, seem bizarre. How can self-helpers possibly read themselves better? And yet, a visit to virtually any bookshop will reveal a substantial selection of books in the 'popular psychology' category. This is strong evidence that there is a market for do-it-yourself guidance on e.g. confidence building, coping with stress, and psychological self-improvement generally. If the effectiveness of such guidance can be measured by the proliferation of titles and the extent of sales, then these books do seem to provide some benefit. Presumably, if such text-based treatments work in print, then it would be reasonable to suppose that they will work equally well in digital form. Certainly there already appear to be examples of such guidance materials on the Internet. [ 27 ]
In order to support legal self-helpers - particularly those who might otherwise fall back into the category of lumpers - guidance on coping with, and surmounting, the common psychological barriers should be offered in close association with the more conventional legal guidance materials. First and foremost, such psychological guidance ought to assist self-helpers to identify the symptoms of moderate to severe stress-related illness and then strongly encourage those with such difficulties to seek professional medical support without delay. For those suffering from lack of confidence or from the symptoms of milder forms of anxiety and depression, the guidance should offer such self-helpers appropriate words of comfort and reassurance. Timely reminders of the following points, amongst others, could all be particularly soothing:
· That many other people have managed to resolve the same, or a very similar problem, successfully
· That it is important to make a conscious effort to keep one's legal problem in proportion
· That the problem itself will not last forever and will eventually be resolved
· That one's opponent is also subject to very similar pressures.
Indeed, support of this kind might, in some cases, be just as crucial to the success of self-help strategies as other, more conventional forms of guidance.
Communication
How could computer-mediated communication be developed to assist self-helpers to overcome psychological barriers? We have already discussed ways in which asynchronous communication channels to advice agencies and to private solicitors might be used by self-helpers to obtain knowledge and know-how. Exactly the same channels could, of course, be used to provide reassurance to self-helpers e.g. that they do indeed have a legal problem, that they are following the best problem-solving strategy, and that they have a good chance of succeeding in their claim.
In addition to using computer communication channels in this way, another possible model would be to develop online support groups. Support groups involve bringing together a number of self-helpers with similar problems so that the group members can comfort each other. Groups like this were pioneered by such agencies as Brixton Community Law Centre in the early 1980s. The law centre wrote and published illustrated self-help kits designed to assist residential tenants to force their landlords - often the local authority - to undertake housing repairs. Although very popular, it was obvious that the kits were not always sufficient on their own. Staff at the law centre, therefore, offered tenants who lived within the centre's catchment area the opportunity to join a support group. The group met at the centre's premises one evening each week. Although an advice worker was usually present at each group session, the main function of the group was to encourage members to share their experiences and to provide a pool of psychological and practical support that could be drawn on by each member. Support would often go beyond the group meetings with some members e.g. acting as witnesses of fact for others. On occasions, the whole group would arrange to assemble at court to give moral support to a member whose case had been listed for hearing. [ 28 ]
Although an effective way of assisting many self-helpers to take action against their landlords for housing disrepair, support groups such as those offered in Brixton were still fairly demanding in terms of law centre resources. A virtual support group might prove to be an efficient alternative. Self-helpers with a particular category of problem - consumer, employment, housing, or welfare benefits, for instance - could be encouraged to join an asynchronous electronic mailing list [ 29 ] hosted by an advice agency and comprising others with similar types of problem. Participants would then provide the same sort of pool of experience and support as was offered by the physical groups that ran in Brixton. There would, however, be no need for such a group to meet at any particular time or place. Inevitably the membership of such a group would be transient as many of those who had resolved their problems would leave and there would be a steady flow of new recruits entering the group. To provide some continuity - and possibly some advice too - the hosting advice agency might assign one of its advisers to moderate the group's discussions.
As well as the two suggestions above, readers may well be able to imagine many other ICT based models for providing self-helpers with the type of comfort and support that they need to overcome one of the greatest barriers to managing their own legal problems successfully.
Commoditisation
Susskind has expressed considerable doubt as to whether ICT based legal guidance packages can provide psychological comfort and support for self-helpers. [ 30 ] One the face of it, this view seems like a statement of common sense. However, there is some evidence to suggest that the opposite may be true. In an early example, Weizenbaum - concerned to debunk some the claims of pioneer AI researchers - developed a computer program called ELIZA. [ 31 ] The program was designed to make appropriate-seeming responses in reply to communications made to it by human beings. There was no true intelligence behind ELIZA's responses, though. Its replies were taken from a pre-prepared script, the choice of any particular reply merely being triggered by key words that it identified in the communication that it received.
One task given to ELIZA was 'to parody the responses of a nondirective psychotherapist in an initial psychiatric interview.' When this system was tested, Weizenbaum was shocked by the result. He states:
'People who knew very well that they were conversing with a machine soon forgot that fact, just as theatregoers, in the grip of suspended disbelief, soon forget that the action they are witnessing is not "real." This illusion was especially strong and most tenaciously clung to among people who knew little or nothing about computers. They would often demand to be permitted to converse with the system in private, and would, after conversing with it for a time, insist, in spite of my explanation, that the machine really understood them.' [ 32 ]
In a sense, simple expert systems that convey legal knowledge and know-how are doing much the same as ELIZA. The knowledge of a human domain expert is converted into a script of sorts by a human knowledge engineer. Next, the script is loaded into a computer program. The resulting legal guidance package then interacts with a human user by giving useful and appropriate responses. Such a system is not itself intelligent in any meaningful sense. It is, however, still an effective container and dispenser of human intelligence. If such a system is an acceptable way of serving up legal knowledge, why should it not also be an acceptable way of dispensing psychological comfort and support? Based on experimental work at MIT, Negroponte has predicted that ICT will soon be capable of autonomously recognising the emotional state of users and responding appropriately. [ 33 ] Admittedly it would be preposterous to imagine that an intelligent guidance package might be able to offer full-scale support based on, for example, a psychodynamic model of therapy such as Freudian analysis. On the other hand, some of the more short-term, pragmatic psychotherapeutic models that are applied in modern-day counselling could, perhaps, lend themselves quite well to this form of delivery. [ 34 ]
The suggestion here is that, together with the development of a small number of interactive guidance packages designed to assist self-helpers to gain knowledge and to access justice, it would be interesting to develop an experimental psychological support system for deployment on the Internet. Such a system would, at the outset, identify self-helpers who were suffering moderate to severe psychological difficulties as a result of trying to cope with their legal problems. The system would then recommend that such users seek professional medical assistance without delay. For other self-helpers whose difficulties ranged from mere lack of confidence to mild anxiety or depression, the system could dispense appropriate words of comfort and reassurance. Would such a system be as effective as conventional, face-to-face counselling? Probably not, although it might well be considerably better than nothing.
4. ACCESS BARRIERS
Where direct complaint to an opponent has failed to provide a satisfactory solution, self-helpers are faced with the choice of either invoking an impartial dispute resolution mechanism with all that involves, or simply abandoning their claim. The temptation to do the latter is obviously strong. As Genn discovered:
'In about half of all cases no resolution to the problem appears to have been achieved by means of agreement, judicial decision, or court order. These statistics suggest a large "dark figure" of hidden potential demand for the civil justice system.' [ 35 ]
Where self-helpers do decide to soldier on, the dispute resolution mechanism will either comprise a conventional court or tribunal, or possibly some means of alternative dispute resolution (ADR) based on e.g. mediation, conciliation or early neutral evaluation. So far, ADR has played only a minor, 'walk-on' part in the justice system. At the time of her study, Genn reported: '…current ADR activity in the context of civil and family disputes appears to be negligible'. [ 36 ] However, the Lord Chancellor's Department envisions a much more important role for ADR in future as the justice system reinvents itself for the digital age. [ 37 ]
Content
Where self-helpers choose to take their problem further, a difficulty arises with regard to access to the appropriate court. It can be argued that access is hardly a problem when the relevant court building is a short walk, bus ride or drive away. However, with some exceptions, the law requires that the claimant commence proceedings in the defendant's home court. [ 38 ] This means that the appropriate court will quite often be a considerable distance from where the claimant lives. Indeed, given the increased emphasis on distance selling, particularly via the Internet, it is now much more likely that a seller-defendant will be domiciled in a different part of the same country, or indeed in a completely different country. How can ICT be used to help mitigate the cost, discomfort and inconvenience of seeking access to justice? Let us turn first to content on the Internet. The Court Service already maintains an impressive website providing access not only to a directory of civil courts in England and Wales, but also appropriate guidance and forms. [ 39 ] Although there is still much for the Court Service to do in this respect, it has unquestionably made a promising start.
How could the current Court Service's website be improved? One way forward would be for a radical enhancement in the quality of guidance that the site offers. The present material takes the form, for the most part, of digitised leaflets. As we have already seen, this approach does not begin to do justice to the potential of the new medium. The Court Service should be encouraged to phase out the leaflets and to set about creating guidance fit for the digital age. High quality guidance should, again, be as simple as possible but no simpler. It ought to be structured in layers, allowing the self-helper to drill down from more general levels through increasingly complicated and detailed levels right down to the 'bedrock' - the primary sources themselves. To make guidance even easier for lay people to digest, graphics, images, sound bites and video clips should be freely used to clarify, enhance or replace text as appropriate.
What else could be done with the website? If all the individual civil courts - not just the higher courts, but all 218 county court centres too - were given their own spaces on the Court Service's website, this might start to play a valuable role in case management. In respect of every single court, information about the postal and electronic address, location details including maps, and access to the current and future court lists via the website would be a useful start. However, this is merely scratching the surface. The Lord Chancellor's Department has expressed considerable enthusiasm for electronic case files 'whereby all the documents and information relating to a case are stored on and accessible though the Internet to all parties involved…' [ 40 ] In due course, the Court Service website might be the most obvious point of first and ongoing contact - the place where self-helpers could go and, after passing through the sort of security checks that are associated with electronic banking today, access the complete, up-to-date electronic file for their case.
Communication
Simultaneously with giving all the civil courts - especially the county courts - space on its website, the Court Service should promote the rapid development of electronic communication links between self-helpers and civil court offices. [ 41 ] Needless-to-say, launching a claim and the resulting responses such as admissions, defences and counterclaims are all activities that can readily be undertaken by email. Indeed, the Court Service itself is currently running a pilot project along these lines. [ 42 ] As well as the convenience that this involves, there is another significant advantage in encouraging self-helpers to generate and send communications by this means. If electronic case files are seen as an important advance in case management, there is a big gain to be made by reducing or removing the need to digitise large numbers of paper documents. By encouraging the service of digital documents from the outset, a considerable amount of labour will be saved. Perhaps this saving could be passed back to any self-helper prepared to use ICT in the form of a reduction in court fees. If the financial reduction was large enough, a virtuous circle might be created whereby, in a short period, nearly all proceedings would be initiated by asynchronous electronic communication. To reduce any worries about identity, authentication and privacy, electronic communications between self-helpers and court offices could, perhaps, make use of digital signature technology. [ 43 ]
Beyond the initiation of proceedings, there lie interlocutory hearings. Lord Woolf expressed the view that such hearings could readily take place by means of telephone conferencing. [ 44 ] Presumably, therefore, there is no reason why the assessments cannot work equally well using synchronous electronic communication. As ever, though, synchronous communication is still resource intensive and therefore expensive. Therefore, why not conduct such preliminary hearings by means of asynchronous communication? The Court Service has run a pilot project involving this kind of approach. [ 45 ] In future, it could become normal practice for the relevant court official to send out by secure email an appropriate set of standard directions for the conduct of the subsequent hearing. [ 46 ] Alternatively, if standard directions were not suitable for the claim in question, then the parties could be given a deadline within which to apply by email for special directions to be made. Any requests for special directions by either of the parties could be forwarded to the other side with a requirement that the court receive any objections within a set period. The court official could then email both parties with the finalised directions.
Turning now to the trial itself, the Lord Chancellor's Department very interested in the potential of virtual hearings. [ 47 ] The dominant model for such hearings, at present, is the use of video-conferencing technology to achieve a close replication of the face-to-face trial system online. Undoubtedly this could be a valuable new way of using court and judicial resources. However, such synchronous virtual hearings will still be resource intensive, albeit a little less so than face-to-face hearings. Given the Department's own estimate of some one million small claims and tribunal hearings each year, could the parties to the hearing be given a choice of a synchronous virtual hearing at a higher fee, or an asynchronous virtual hearing at a significantly reduced fee? Not all hearings would be appropriate for an asynchronous approach, of course. The use by the parties of e.g. expert witnesses, or of a number of witnesses of fact who would need to be cross-examined could make asynchronous trials problematic, although synchronous virtual hearings in such circumstances would, it is suggested, still be perfectly possible. [ 48 ] However, a significant proportion of small claims hearings involve only the unrepresented parties themselves without any additional witnesses. In these types of cases, and with the judge acting in a more inquisitorial role than might otherwise be normal, asynchronous hearings by secure email might prove to be a very cheap and effective way of dealing with many such cases. It is argued here that current experiments in the use of virtual hearings should also explore the potential of asynchronous trials just as thoroughly as that of synchronous trials.
As we have seen, ADR based on e.g. mediation, conciliation, or early neutral evaluation has not yet become a popular alternative to court or tribunal proceedings. For reasons that we shall consider in the next subsection, alternatives to conventional dispute resolution might work particularly well through the medium of ICT. [ 49 ] A fascinating, current example of the marriage between ADR and ICT can be found in the Uniform Domain-Name Dispute-Resolution Policy set up and managed by The Internet Corporation for Assigned Names and Numbers (ICANN). [ 50 ] As an alternative to taking conventional court proceedings, complainants may, by virtue of the Policy, refer complaints about allegedly abusive registrations of Internet domain names to an approved dispute-resolution service provider. [ 51 ] Both the claimant and the respondent then make detailed representations to the provider. These representations must be made both in paper form and by email. If the representations reveal that there is an issue to be resolved, the provider appoints an impartial panel to hear the case. The subsequent 'hearing' by the panel normally takes place not only at a distance, but also asynchronously. [ 52 ]
Commoditisation
How might legal guidance packages assist self-helpers to obtain access to justice? An obvious advance - already under consideration by the Court Service - is the development of simple systems like intelligent checklists to ensure that all procedural steps are taken in sequence and in time, and document assembly tools to help with the drafting of claims, responses and related correspondence. [ 53 ] Again, it is easier to imagine this development occurring as a small step from online guidance fit for the digital age rather than as a giant leap from the digitised leaflets that are so prevalent today. As we have seen, once such packages begin to appear amongst high quality Internet content, it would only be a matter of time before the possibility arose of combining these tried and tested little systems together into more comprehensive guidance packages. Thus, a modular approach of this type could eventually lead incrementally to sophisticated guidance packages for self-helpers without the need for a massive injection of resources.
What lies beyond? The notion of creating intelligent systems that could act as judges is by no means new. Weizenbaum reports that the AI pioneer and evangelist Professor John McCarthy once posed the question: 'What do judges know that we cannot tell a computer?' [ 54 ] McCarthy's answer was, of course, nothing! More recently, and in a more informed and thoughtful vein, Susskind has also discussed the issue. [ 55 ] As of now, however, the moral, jurisprudential, technological and practical hurdles to such an advance seem insurmountable. A rather different way forward, though, might, perhaps, lie in the development of ADR-based packages that encapsulate popular and effective models of mediation, conciliation or early neutral evaluation for use in connection with e.g. small claims. Why should this step be more plausible in the near future than the development of computer judges? Here are some suggestions: [ 56 ]
· The use of ADR involves a free choice by both parties.
· By choosing this route, both parties signal a desire to find a faster, cheaper and less-stressful way of resolving their differences than dragging the other party into the expensive, combative arena of a court or tribunal.
· It probably follows from the choice of this route that both parties are willing to exploit common ground to resolve their differences.
· Given such a shared mindset, the parties are less likely to try to cheat either the dispute resolution process or each other.
With these circumstances in mind, perhaps the development of dispute resolution packages to guide the parties to the goal that they both seek is likely to be a more attainable target in the near future than the construction of AI-based, judicial battle zones.
5. CONCLUSION
While accepting that, in theory, ICT offers possibilities for easy access to information, Genn expressed the view that there was still a considerable way to go before the average adult member of the public would possess the computer literacy skills necessary to access such information. [ 57 ] In this respect, however, things are changing rapidly. Currently, an estimated 62% of the adult population of the United Kingdom have already made use of the Internet [ 58 ] and, if the present trend is indicative, this figure will continue to rise remorselessly. In any event, computer literacy skills will become much less important as digital televisions and mobile phones start to rival personal computers as points of access to the Internet.
So, what important threads can be drawn out of the above discussion? In relation to placing content on the Internet, simply digitising existing text-intensive leaflets is not a satisfactory way of providing legal guidance in the digital age. As we have seen, in a paper-based era, designing, writing, printing and distributing guidance materials was very resource intensive and expensive. Therefore, publishing guidance in cut-down leaflet form was, at the time, a sensible compromise. It was not ideal for self-helpers, but it was better than nothing. On the Internet, there is no longer any need for either printing or distribution. All available resources can be put into designing and creating content. The old paper-based approach is yesterday's compromise. Entrenched ways of thinking about the delivery of content should now be abandoned. Digitised leaflets should be phased out. On the Internet, self-helpers can expect, and should be given, a far higher quality of digital content.
The new style of online legal guidance needs to be informationally much richer. Furthermore, it should be structured in such a way that self-helpers can drill down through a series of layers of ever more detailed and sophisticated guidance until they hit the bedrock of the primary sources themselves. It is also argued that content should be developed to make optimum use of the multimedia capabilities of the Internet. As we have seen, legal practitioners and academics are accustomed to work with unremittingly textual content. Lay people are not. Beyond text, much greater use - albeit appropriate use - should be made of graphics, images, sound and video to provide self-helpers with the highest possible quality of content.
Turning now to the use of computer-mediated communication, we have observed that current models tend to place heavy emphasis on the synchronous. The asynchronous is often dismissed as nothing more than an inferior by-product of computer networking. [ 59 ] Planners typically assume that the only possible way to replace face-to-face interaction in the same physical location is to use the synchronous digital equivalent. The cost and inconvenience of moving people to the same physical location is thereby removed. However, the cost and inconvenience of making people available at the same time and with the necessary expertise at their fingertips is still present. Obtaining knowledge, psychological support, or access to justice via synchronous digital communication remains troublesome and expensive for self-helpers. Rather than giving self-helpers the hard choice of either paying for synchronous communication or doing without, it is argued here that there is a middle way - i.e. greater use of asynchronous communication. Such means of communication save not only location-based but also time-based inconvenience and expense since the provider - advice worker or private solicitor - can both take the time to search out the answer to a query rather than being expected to have that answer available at once, and then give guidance at an 'off-peak' time of the provider's choosing.
What can be said about commoditisation of legal knowledge, support and access? The technology and expertise to produce simple but viable AI-based legal guidance packages has existed for some years. [ 60 ] Many useful expert systems, intelligent checklists and document assembly tools could be developed right now. However, their development will undoubtedly be resource-intensive and costly. This is particularly so if we attempt to jump straight from digitised leaflets to full-scale, comprehensive guidance packages. Rather than adopting an approach based on such a great leap forward, however, it has been argued here that an incremental approach to the development of such packages would make much more sense. First, begin the move from digitised leaflets to richer digital content. Once this has been accomplished, transfer some of the resources used to create the richer content into the development of a small number of simple, discrete AI-based guidance packages to be used in conjunction with the digital content. Once the collection of these tried and tested little packages reaches a critical mass, then start the process of combining them together into comprehensive guidance packages. If it takes ten or even twenty years to achieve the desired goal by means of such an approach, then so be it. The sooner we begin, the sooner we will arrive.
Notes and References
1. See, for example, BBC News website, 'Legal Aid Changes Under Fire' (3rd April 2000) at < http://news.bbc.co.uk/1/hi/uk_politics/699141.stm >
2. Francis, A. 'Lawyers, CABx and the Community Legal Service: A New Dawn for Social Welfare Law Provision?' (2000) 22(1) Journal of Social Welfare and Family Law 59-75.
3. Professor Hazel Genn states in (1999) Paths to Justice (Oxford: Hart) 256: '…the more obvious sources of free legal advice such as CABx are reported by respondents to suffer from restricted opening hours requiring those in work to take time off in order to obtain advice. They also reportedly suffer from overcrowded offices, unanswered telephones, and difficulties in arranging appointments.'
4. Article 6(1) of the European Convention of Human Rights was used successfully to establish the existence of such a right in Airey v Ireland (1979) 2 EHRR 305. However, contrast the recent decision of the European Court of Human Rights in McVicar v The United Kingdom (2002) 35 EHRR 22.
5. See, for example, Susskind, R. (2000) Transforming the Law: Essays on Technology Justice and the Legal Marketplace (Oxford: Oxford University Press) 114.
6. Genn, n 3 above, 12-13.
7. Legal Services Commission (2001) The Quality Mark Standard for Websites (London: Legal Services Commission) para 2.1 at < http://www.legalservices.gov.uk/qmark/qm_web_standards.pdf >
8. See Lord Chancellor's Department (2000) civil.justice.2000: A Vision of the Civil Justice System in the Information Age (London: Lord Chancellor's Department) para 3.30 at < http://www.lcd.gov.uk/cj2000/cj2000.htm >
9. The Community Legal Service's website Just Ask! at < http://www.justask.org.uk/> already provides access to an extensive collection of online leaflets produced by a wide range of public sector and voluntary organisations.
10. Susskind, n 5 above, 140.
11. See Legal Services Commission, n 7 above, section 7.
12 . Katsh, M. (1995) Law in a Digital World (Oxford: Oxford University Press) chapter 8.
13 . The development of such free resources is already under way - see Lord Chancellor's Department, n 8 above, paras 4.28-4.36. An excellent example of such a service is the British and Irish Legal Information Institute (BAILII) at < http://www.bailii.org/>
14 . Nolo, the USA's premier legal self-help website at <http://www.nolo.com>, already offers such research facilities.
15 . Katsh, note 12 above, 141-142.
16 . Research undertaken as part of the International Adult Literacy Survey (1997) suggests that as many as 25% of adults in England and Wales have poor literacy skills - see the Basic Skills Agency website at < http://www.basic-skills.co.uk >
17 . Lord Chancellor's Department, n 8 above, para 4.14.
18 . Interestingly, recent evidence indicates that private solicitors, at least, are responding to a client-lead demand for asynchronous email communication facilities - See Fletcher, N Solicitors' Involvement in E-Business: A Survey Of The Extent and Nature of Solicitors' Use of Information and Communication Technologies (2002) Law Society Research Study 46 (London: Law Society) 15-16 + 23.
19 . FAQs are collections of frequently asked questions of the sort that new users or beginners commonly ask, together with the appropriate answers.
20 . Nolo, n 14 above, makes extensive use of FAQs.
21 . For an account of some of this research, see Leith, P. & Hoey, A. (1998) The Computerised Lawyer: A Guide to the Use of Computers in the Legal Profession (Berlin: Springer-Verlag, 2nd edition) chapter 12.
22 . On this point, see the frank discussion in Oskamp, A. & Lauritsen, M. 'AI in Law Practice? So Far, Not Much' (2002) AI & Law 227-236.
23 . Susskind, n 5 above, 146.
24 . Cameron, N (2003) 'Technology focus: Collaborating with Clients' (31st July 2003) Legal Week at < http://www.legalweek.net/ViewItem.asp?id=15861 >
25 . Genn, n 3 above, 192-3.
26 . Genn, n 3 above, 100.
27 . See, for example, the BBC's Get Confident website at <http://www.bbc.co.uk/health/confidence/learn/>
28 . This account draws on the author's own experiences while employed as a housing lawyer by Brixton Community Law Centre at the relevant time.
29 . An electronic mailing list is an address list with its own group email address. When a new email is sent to the group email address it is distributed to all members on the electronic mailing list. Some mailing lists are unmoderated i.e. incoming emails are distributed to members of the mailing list without being checked for source or content. Other lists are moderated i.e. all incoming emails are checked by either a human or a computer program before being distributed to members of the list.
30 . Susskind, n 5 above, 115.
31 . Weizenbaum, J. (1984) Computer Power and Human Reason: From Judgement to Calculation (London: Pelican) 188-191.
32 . Weizenbaum, n 31 above, 189.
33 . See Negroponte, N. (1996) 'Affective Computing', WIRED 4.04 at
,< http://web.media.mit.edu/~nicholas/Wired/WIRED4-04.html >
34 . See generally, for example, Nelson-Jones, R. (2000) Practical Counselling & Helping Skills (London: Continuum, 4th edition).
35 . Genn, n 3 above, 257.
36 . Genn, n 3 above, 261.
37 . Lord Chancellor's Department, n 8 above, paras 3.34-3.35.
38 . According to rule 2.3 of the Civil Procedure Rules at
< http://www.lcd.gov.uk/civil/procrules_fin/contents/parts/part02.htm#rule2_3 >:
'"defendant's home court' " means:
(a) if the claim is proceeding in a county court, the county court for the district in which the defendant resides or carries on business; and
(b) if the claim is proceeding in the High Court, the district registry for the district in which the defendant resides or carries on business or, where there is no such district registry, the Royal Courts of Justice…'
39 . At < http://www.courtservice.gov.uk/>.
40 . Lord Chancellor's Department, n 8 above, para 4.14.
41 . In some jurisdictions, court use of electronic filing is already well advanced - see e.g. Griese, M. 'Electronic Litigation Filing in the USA, Australia and Germany: a Comparison ' (2002) 9(4) Murdoch University Electronic Journal of Law at < http://www.murdoch.edu.au/elaw/issues/v9n4/griese94_text.html >
42 . See the Money Claim Online service at < http://www.courtservice.gov.uk/mcol/index.htm >.
43 . A digital signature involves attaching additional, encrypted data to a digital message, which positively identifies the sender and verifies that the message has not been tampered with.
44 . Woolf, Lord (1996) Access to Justice: Final Report (London: HMSO) chapter 21, paras 21-22.
45 . See the discussion of PREMA in Magee, I. '21st Century Justice' (2002) 152.7053 NLJ 1599-1600.
46 . On current the use of standard case management directions in cases allocated to the small claims track, see the Civil Procedure Rules: Practice Direction 27 at
< http://www.lcd.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part27.htm >
47. Lord Chancellor's Department, n 8 above, para 4.14.
48. See for example Widdison, R. 'Electronic Law Practice: An Exercise in Legal Futurology', (1997) 60 MLR 143-163.
49 . There is an interesting discussion of this topic in Hörnle, J. 'Disputes Solved in Cyberspace and the Rule of Law' (2001) 2 JILT at < http://elj.warwick.ac.uk/jilt/01-2/hornle.html/>..
50. < http://www.icann.org/udrp/udrp.htm >.
51 .On the operation of the Uniform Domain-Name Dispute-Resolution Policy, see e.g. Bettink, W. (2002) 'Domain Name Dispute Resolution Under the UDRP: The First Two Years' 24 EIPR 244.
52 . See rule 13 of the Rules for Uniform Domain Name Dispute Resolution Policy at < http://www.icann.org/dndr/udrp/uniform-rules.htm > which states:
'There shall be no in-person hearings (including hearings by teleconference, videoconference, and web conference), unless the Panel determines, in its sole discretion and as an exceptional matter, that such a hearing is necessary for deciding the complaint.'
53 . Magee, n 44 above, 1600.
54 . Weizenbaum, n 31 above, 207.
55 . 'The Computer Judge: Early Thoughts' in Susskind n 5 above, chapter 13.
56 . Compare Legal Services Commission, (2001) Alternatives to Court (London: Legal Services Commission) at < http://www.legalservices.gov.uk/leaflets/cls/alternatives-to-court-23.htm >
57 . Genn, n 3 above, 256.
58 . See National Statistics Online, (2003) Internet Access: Households and Individuals at < http://www.statistics.gov.uk/pdfdir/int0403.pdf >
59 . An interesting comparison can be made with the asynchronous Short Message Service (SMS) - the means by which text messages are sent from one mobile phone to another. SMS is commonly regarded as inferior to synchronous voice communication. Despite this, recent research indicates that some 3 out of 5 United Kingdom customers make use of their mobile phones for text messaging - see Oftel, Consumers' use of mobile telephony at
< http://www.oftel.gov.uk/publications/research/2002/q9mob_r0702.htm >.
60 . The Latent Damage Adviser was the first commercially available package of this type in the United Kingdom - see Capper, P & Susskind, R. (1988) Latent Damage Law: The Expert System (London: Butterworths).
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