Scots law could benefit from eBay’s technology

The science fiction writer, William Gibson, observed that the future is already here, it’s just not evenly distributed. In many ways, this is the current state of technology and the justice system.

There are many exciting developments taking place, though there are many areas barely touched by the progress of technology: forms that still need to be filled out by hand; bundles of papers that still need to be brought to court; and parties, victims, witnesses, jurors that still have to appear in person to progress or resolve cases.

This is beginning to change, and from a range of different sources, the government, the judiciary, the courts, the legal profession and the wider technology sector. As a government response, a digital strategy has been published which will see the development of information on justice issues at mygov.scot, moving over time from static content to interactive help.

For courts, a new portal will launch later this month, allowing legal professionals and members of the public to lodge and track low value civil claims. A court videoconferencing pilot has taken place and the Criminal Evidence and Procedure Review is considering proposals around using pre-recorded evidence from witnesses rather than requiring attendance in person. The outcome of these developments is intended to help people assess legal problems, allow court action to be brought online and move large parts of the court process to phone or online.

Across the UK, a number of developments in the private sector are also looking to improve access to justice. Similar to platforms like Kickstarter, there are now platforms available from which people can look to crowdfund legal actions. Some platforms provide free initial advice online for a small monthly fee (and a discount if more detailed legal work is required). And some platforms offer online dispute resolution services, for instance, through the complaints processes of companies, local authorities and other organisations.

One particularly interesting project in England and Wales, currently in beta stage, is the Relate Rechtwijzer, which offers help with family separation. It has been developed in partnership with a Silicon Valley-based team who helped build the online dispute resolution systems for eBay and PayPal, and is based on the Rechtwijzer platform developed in the Netherlands, in partnership with the Dutch Legal Aid Board. As a concept, it separates out the steps towards successful resolution, offering the opportunity for a mediated solution or more formal adjudication. Some of the stages of the Rechtwijzer in the Netherlands are available without charge, and others with, aiming overall to be more cost-effective than traditional dispute resolution.

A platform that offers effective and affordable legal help to the public has great potential to improve access to justice. In the same way that telephone banking or NHS 24 offer self-help services that remove the need for face-to-face provision. The development of online dispute resolution platforms, though, is not without difficulty.

Digital poverty is prevalent across Scotland, and there will be some people who do not have the facilities or capability to access these new online platforms. Even for those looking to access these services, systems need to be intelligently designed to identify vulnerable clients or complex cases for which online self-help or mediation-focused solutions may not be appropriate.

There are risks, particularly in a justice system that faces financial constraints alongside other public services, that a two-tier justice system is created or even one where there is no ability to access face-to-face advice and support. There may also be regulatory issues around the role of lawyers as these new platforms digitally unbundle legal services and the consumer protections available to people if these systems provide inadequate help.

These challenges are not insurmountable, the potential of new technology to improve access to justice is substantial, and the experience of other industries – such as how automated advice develops in financial services – will be instructive.

The Law Society’s recent technology survey of members highlighted the opportunities from new technology: 78% agreed or strongly agreed that technology is enabling the profession to become more efficient and the same percentage that technology is creating ideas for new models of firm and process innovation. As an emerging area, 36% of respondents agreed or strongly agreed that technology is reducing costs by replacing salaried humans with machine-read or Artificial Intelligence (AI) systems.

The potential of legal artificial intelligence was a theme emerging from the recent Law Society and Legal Hackers Scotland hackathon on access to justice, Tech4Justice 2016. AI systems are already being used in some areas, such as assisting with electronic disclosure of documents in England and Wales, or through platforms such as Ross AI, based on IBM’s Watson architecture. A number of teams participating looked at the ways in which legal AI or intelligent ‘chatbots’ could help people through legal processes such as bringing civil money claims.

Overall, the huge progress that small, cross-disciplinary teams made over the course of a weekend in developing new solutions showed that innovation need not require huge IT budgets. It’s an area that we’ll be exploring more at the Law Society in the coming year and we firmly believe that technology can transform the profession and step-change the provision of access to justice across Scotland.

Andrew Alexander is Head of Policy at the Law Society of Scotland

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