Smith: exquisitely difficult times for justice campaigners
The digital delivery of legal services in England and Wales to people formerly entitled to legal aid could be at the cusp of a “tipping point”, according to Professor Roger Smith, the leading researcher into online law.
He also predicted that high street law firms would be increasingly vulnerable to website-based national brands, as retailers have been to Amazon.
In an annual update to last year’s report on the provision of digital services, Digital delivery of legal services to people on low incomes, backed by the Legal Education Foundation, Professor Smith said this was an “exquisitely difficult moment” for people committed to access to justice.
The potential of technology was “exciting” but there was also a danger that people on low incomes and their advisers could be “passed over in the dash for technology”.
He highlighted trends during 2016 that could affect legal services for people on low incomes. These included the maturing of online legal solutions pioneered by the Dutch Rechtwijzer project, automated document assembly, unbundling, and the report by Lord Justice Briggs on creating an online court.
Professor Smith said it was “striking how much has changed over the last year” and that the developments amounted to “the sense of the arrival of a tipping point, at least in England and Wales”.
He said deregulation of the legal services market and the possibility of an online court could create a “once-in-a-lifetime opportunity for cash investment”, fuelled by the prospect of selling off physical courts in favour of cheaper virtual alternatives. Last week it was mooted that Southwark Crown Court in London could be sold for some £100m.
However, on the other hand, the “relatively coherent nationwide network of legal aid practices” could be replaced by a growing division between digital ‘haves’ and ‘have nots’. He said: “Clients might split between those who are able to access a wide range of innovative services on the internet and a group who are excluded through lack of access and the necessary skills.
“In the worst case, ‘advice deserts’ would grow ever larger as local authorities cut back on funding and national internet-based information provision was unable to compensate.”
The combination of technological advances and deregulation would have an “enormous” impact on the work of solicitors, and anyone who took comfort from failures among new model businesses “should probably think again”, he said, adding: “It seems likely that traditional high street practice in law will be as vulnerable to national, website-based brands as other forms of retail have been to a company like Amazon…
“There are likely to be a range of new entrants from outside the legal profession who seek to maximise their capacity to deploy the initial capital investment – both in terms of providing services direct to clients or subcontracting elements from other providers.”
The potential for artificial intelligence (AI) to be influential in the delivery of services to poorer people was a long way off, he said, but in future it could become important. “You can… imagine in time how law and practice relevant to poverty law practice could be parcelled up and managed by AI.”
He continued: “AI programmes [could] revolutionise the presenting of arguments in court – buttressing rather than threatening existing advocates and their structures of practice. You could, for example, scan all relevant speeches, judgments and other information to identify the arguments which would best sway individual justices of the Supreme Court”.
Virtual legal practices and associated technology were showing potential to be useful to low-income clients, he said: “If acceptable access can be established for clients then the potential of video connection through technology such as Skype seems to be large and could go some way, as in New Mexico, to giving access to specialist providers even in remote locations… where there might otherwise be an ‘advice desert’ without physical provision.”
Automated document assembly and ‘guided pathways’ – standalone systems that give DIY assistance to users, such as the approach taken to online dispute resolution (ODR) by Rechtwijzer and – later this year – in England and Wales by Relate, could in time be integrated with courts-based online dispute determination (ODD), which ends in a judicial phase, the professor said.
Meanwhile, the Rechtwijzer – soon to be renamed Rewired – model, which offers a seven-stage approach to the resolution of divorce and relationship breakup, has “enormous promise”, he said. The latest version 2.0 of Rechtwijzer was launched in November 2015, he reported. Since then it has been used in over 700 cases, with more than 200 finalised. The cost of the using the system was around £350.
He continued: “One could imagine the Rechtwijzer approach being absorbed within an approach to divorce that consisted of a cheap internet-based resolution appropriate for those in basic agreement on major issues and relatively competent in using the internet [and] lawyers who integrated a Rechtwijzer style programme… within their practice so that conventional lawyer time was focused only on the issues where it was really required.”
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