Making the law accessible
Gerald Abila, founder of Barefoot Law, is a shining example of someone making human rights possible. Access to legal services, despite being a right, is reserved for the privileged few who have access to it.
The increasing digitalisation of legal services could impact this. We spoke to Dr. Judith Townend, an expert on the matter to better understand the impact of this shift.
Digital access to justice
Dr Judith Townend is a lecturer and director of the Information Law and Policy Centre at the Institute of Advanced Legal Studies, University of London.
Bundles. Bundles and bundles of paper are one of the defining features of the contemporary courtroom.
They are one of the many mounting costs of a court trial, and a persistent remnant of the analogue era.
Around the world, governments and judiciaries are looking for ways to cut costs and bring courts up to date with other industrial sectors.
In the United States, many state courts are on their way to becoming “paperless”, with an obligation for lawyers to electronically file documents that judges can access via laptops and other devices.
The US Supreme Court is planning to introduce full electronic filing of different types of motions and applications, with free public access to these materials on the Court’s website.
Updating the world’s courts
The English judicial system evolved over 1,000 years has influenced courts around the world and is admired for its independence and quality. But few would dispute it is in dire need of modernisation.
The physical courtrooms are particularly antiquated. The piles of paper cost money and time – as judges and lawyers rifle through files and pages in court, looking for the right bundle, and the precise reference that is being discussed.
Paper in the courtroom is not the only problem. The requirement for physical attendance by witnesses, parties and their representatives, and the way cases are scheduled in blocks, ensure an expensive and slow process.
According to the Law Society, which represents solicitors in England and Wales, there are “significant inefficiencies in the way in which the courts work which create costs for everyone”.
It is for this reason that digital technology is increasingly – but very slowly – being adopted to manage cases in and out of court around the world. Canada, for example, has introduced a new online tribunal for small civil claims, offering an alternative to going through a physical court process.
Independently, lawyers are exploring new ways of working, such as BarefootLaw in Uganda, which is making use of social media and online tools to offer “virtual counsel”.
Globally, more legal materials are appearing online; many through WorldLii, a member of the Free Access to Law movement and host to 1746 databases from 123 jurisdictions. Governments and court services increasingly make legislation, guidance and case law freely available on their sites, and new third party tools are appearing – such as mySociety’s SayIt which could allow better access to court transcripts.
Legal systems are becoming increasingly computerised, as has been advocated for many years by Professor Richard Susskind, an IT Adviser to the Lord Chief Justice of England and Wales since 1998 and strong critic of the traditional practices of lawyers.
The Civil Justice Council advisory group he chairs has recommended the introduction of an online system in England and Wales for low-level civil claims called the HM Online Court (HMOC).
eBay-style dispute resolution
Partly inspired by the Canadian tribunal and other online dispute resolution (ODR) systems devised by technology companies such as eBay and Nominet, the group proposed a three-tier system for civil claims worth less than £25,000.
The aim is to improve access to justice by being more affordable and user-friendly, with substantial savings for the court service. It would also aim to contain or avoid disputes before the accrual of high costs and time.
Though these plans were well-received by the media and supporting members of the judiciary, proposals for digital systems can be treated sceptically.
Critics are worried by the effect of removing physical human interaction during the legal process and whether online dispute resolution can provide a fair hearing under Article 6 of the European Convention on Human Rights. There is also an issue about universal access to these services – an estimated 22 per cent of the British population are non-users of the internet.
The Law Society, in its own recommendations for technological change in-house and in court, says that technology “cannot fully replace face-to-face legal advice, particularly for people who cannot access technology through poverty, age, disability or lack of relevant education and skills”.
It is also worried that the law organisations most affected by cuts to legal aid will struggle to innovate without investment and “substantial capital expenditure”.
The path ahead
The UK with its traditional legal system is far behind other countries, such as the Netherlands. There, the Ministry of Justice and Security provides a service called Rechtwijzer 2.0 which offers parties automated legal guidance through matrimonial disputes, including divorce and matters of custody and maintenance.
Investment is needed and in its latest spending review and autumn statement, the UK government indicated it would be investing £700 million “to modernise and fully digitise the courts, moving from a paper-based to an online system”. Its modernization programme would also involve selling some “underused” courts.
But money alone won’t provide for a digital future. Physical and paper based routines are firmly embedded in the social practices of lawyers, judges and court staff – and contemporary understandings of law.
There are big cultural, as well as legal and financial, obstacles to overcome before we see the burning of the bundles in the UK and other countries.