The new Access to Justice Commission: Update 4 (Professor Susskind)

This is a summary of Professor Susskind’s evidence to the Commission.   I must explain that he has been a friend and adviser of mine for many years.  He consistently advised on the need for strategies that embraced three different time-frames: short term (1-3 years), medium term (3-10 years) and long term (10 years and beyond).  Sadly, the machinery of modern government was not in the past able to accept such a discipline – with the disastrous consequences we see all around us today.  The trouble with a  Cassandra is that nobody believes her, although she is never afraid to tell the truth.

Professor Susskind’s CV

Professor Richard Susskind OBE is an author, speaker, and independent adviser to major professional firms and to national governments.  His main area of expertise is the future of professional service and, in particular, the way in which the IT and the Internet are changing the work of lawyers.  He has worked on legal technology for over 30 years. He lectures internationally, has written many books, and advised on numerous government inquiries.

Richard lectures internationally and has been invited to speak in over 40 countries and has addressed audiences (in person and electronically), numbering more than 250,000. He has written and edited numerous books, including Expert Systems in Law (OUP, 1987), The Future of Law (OUP, 1996), Transforming the Law (OUP, 2000), The Susskind Interviews: Legal Experts in Changing Times (Sweet & Maxwell, 2005), The End of Lawyers? Rethinking the Nature of Legal Services (OUP, 2008), Tomorrow’s Lawyers (2013), and The Future of the Professions (with Daniel Susskind, 2015) and has written at least 150 columns for The Times. His work has been translated into 10 languages.

His evidence (23rd February 2016)

Opening statement

Richard Susskind told us that he had devoted his entire adult life to thinking about how technology might transform the way the justice system works.

Technological change

It is now 20 years since he wrote his book the Future of Law in which he explored the possibilities of what technology might do.  Since then it has evolved at an unimaginable rate.  The changes can broadly be categorised under four headings:

  • An exponential growth in information technology: in processing power, bandwidth etc. A more than 1,000-fold increase in storage capacities in ten years, for example. We are now at the knee of the curve. It is about to take off in ways that we don’t understand;
  • Increasingly capable machines. New systems, new apps etc. are taking on tasks we thought could only be done by human beings. A massive increase in the kind of things they can do.  A qualitative as well as a quantitative shift;
  • Increasingly pervasive devices. More people have more devices than ever.  There are 2 billion smartphone users: the number is expected to be 4 billion by 2020;
  • Increasingly connected human beings.  Connections through social media, open source software, the integration of different digital technologies etc.

It is often said that about 80% of people in the UK have Internet connections.  In fact, all but about 3% of them have some kind of access to the Internet through friends and family.  The digitally deprived are very hard to reach, but there are fewer of them than we might think.

Public legal education and preventive justice

In the 1990s he had held the view, like Lord Woolf and many others, that improving access to justice was simply about improving access to the courts.  In fact, it is broader than that: it is about dispute containment as much as it is about dispute resolution.[1]   At present incentives seem to be in place which encourage people’s problems to escalate.   The systems used by courts and lawyers exist both institutionally and economically to escalate disputes, not to contain or prevent them.   It would be marvellous if they contained and dissolved disputes, as opposed to seeking out ways to resolve them.

This trinity of dispute resolution, dispute containment and dispute avoidance is fundamental to the delivery of access to justice.

If we take off our legal hats, most people would refer there to be no problem at all.  The ambulance should be at the top of the cliff, unused[2].  The state should play its part in promoting dispute avoidance.  If we place a fence at the top of the cliff, we will reduce the need for dispute resolution.

Public legal education is another aspect of this. Most people think of the law as imposing restrictions.  Actually it is wonderfully empowering if we know what our entitlements arte, and what avenues are available to us to pursue claims and enforce our rights in relation to our employer, landlord, retailer etc.

In his book Transforming the Law (2000) he wrote about the legal service chain: how events actually unfold in practice.  This has three stages:

  • Recognition;
  • Selection;
  • Service delivery.

The first stage is when someone recognises that their circumstances are ones in which the law has a bearing.  The paradox inherent in our traditional, reactive legal service is that unless you are a lawyer you don’t know that your situation is laden with legal implications.  Public legal education seeks to overcome this.

The next stage comes when you know you have a legal problem, but you don’t know who can help you: is it a lawyer, an online service, a barrister etc.?  Most people don’t know the difference between solicitors and barristers,[3]  or the difference between a court, a tribunal and an ombudsman.

The final stage comes when you have to understand how services are best delivered.  Is access to a court the best way of resolving your problem?  Do we need to congregate together in one place to resolve a difference, or can we use online or other means of alternative dispute resolution?  What is the role of online dispute resolution, online advice services, online diagnostic services etc.?

In other words, before we can talk about access to the courts, there are the two earlier stages we have to consider first.

We must appreciate, too, that there is no finishing line with technology.  The world is moving very fast.  The provision of online information guide services is a natural use of technology.

Conclusion

We live in a time of greater technological progress than the world has ever seen.  It is occurring on our watch.  It is manifested in the switch from print to online newspapers.  In many everyday situations, most people’s natural first point of call tends to be technology, and the justice system should reflect this changed reality.  Currently the justice system is not meeting the needs of those who need it most.  The changes that are needed don’t just relate to the delivery of a service.  They also relate to the way we recognise that our problems be have a legal character, and how we then select the service we need.

 

Answers to Commissioners’ questions

The new systems we should aiming for

He is not blind to the limitations of technology.  The kinds of systems he has in mind (when compared what we have now) do not involve rocket science.  They are as easy as Amazon to use.  The website at www.resolver.co.uk should be compulsory viewing for people who are interested in seeing what may be possible.   It is providing an intuitive, easy to use, jargon-fee way to complain about the problems you have with suppliers.

I.T. projects in the public sector can become over-engineered, with far too little emphasis being placed upon the needs of users.  Our legal system has been designed by lawyers for lawyers.  It should be designed, instead, by consumers for consumers – not by lawyers.  In accountancy, for instance, we can create systems that are better and more reliable than what we have now.  In the NHS technology is being used to try to improve a dire situation.  We are looking for something better than what we have now – not for the best.  Voltaire would approve.  The severe financial constraints we have experienced since 2008 are encouraging the legal sector to think more creatively, in ways they wouldn’t have countenanced in better times.

In Uganda, a young man is promoting a barefoot lawyer’s service, similar to the service provided by barefoot paramedics, who have made a major impact.  The service is accessible by tablet etc.  Paralegals can go out to the villages of Uganda to see abused women who have no idea what their entitlements are, and what their remedies might be.

There is also potential for self-help.  Well over 1 billion people now have IPhones.  Many homeless people possess handheld devices, which represent their connection to survival.   Something similar to the Ugandan barefoot lawyer project should be developed here.  In simple areas of law, we should be identifying 20 main problem areas with simple diagnostic tools and dropdown menus to explain things in simple terms.

Initiatives in the United States are well worth exploring.[4]  Very good work has been carried out there in the development of online services.

The need for a strategic approach

The way in which we use pro bono lawyers will have to change.  Traditionally they take time out of their practice to do pro bono work in courts or tribunals or in other people’s offices.  But now that many more people have access to Skype, couldn’t potential clients go online, identify their problem out of 20 different subject matters, and click the button?  Of our 150,000 lawyers, 2,000 of them might make a commitment to be available online at any particular time.  In this way there would always be someone online to take a call.

We could do a far better job than we are doing at present.  At present there is no over-arching strategy, no systematic long-term thinking.  A strategy will be needed, to enable us to bring these resources together.  Currently we are trying to fix access to justice in a very piecemeal way.  There are so many websites: how can anyone judge their provenance, their reliability, etc.?   NHS Online was a very good example of the value of centralisation – until the Coalition Government dismantled it.  The legal profession needs something equivalent, with an identifiable brand, through the operation of some kind of portal.  At present, if you are not a lawyer you do not know where to go for help.

How to start creating a better legal world

If there is something wrong in practice, there is something wrong with the theory behind it.  How can we start creating a better legal world?  We do it by increments: not in one great leap into expert diagnostic systems and the like.  How do we get from here to there? In measured steps.

Professor Roger Smith has been round the world looking at systems overseas.  You need to hear from him.[5]

A Commissioner has mentioned the recent Law for Life study [6], whose findings were based on large sets of data accumulated in 2010 and 2012.  There has been more recent work which shows a greater number of people are now using the Internet for some purpose or other.

To make the move to a better legal world, you don’t start off with online legal information and guidance.  If people are online, a natural first step for them is to use Skype.  Anyone with an Internet connection will have access to Skype.  The first step would be to have human beings involved, but in a much more efficient way than is happening today.  This would be a far better way of using our limited physical resources.

We must remember we are not planning a system for 2016, but for future years.  We have got to aim for the future: to try and understand where technology will be in, say, five and ten years’ time.

A useful first step would be to make advice services online via Skype, Facetime or online chat.  More and more people are feeling comfortable when they come online.  We also need to start working, in parallel, on the development of systems like www.resolver.co.uk   The take-up shows evidence of the market needs for this type of product.  I remember showing the Rechtwijzer system[7] to judges.  You need to see this system in action.

In the world beyond the law, 48 million people in the USA recently submitted their tax returns online.  3-4 years ago this simply wasn’t possible.  We need to achieve a blend: we should develop online services while at the same being ready to provide human help to hard-to-reach groups.

Of course online courts can’t be unassisted, at least at the start.

The reluctance of professions to embrace transformative change

He is not prepared to take an uncritical look at the legal profession.  He has seen nothing that presents a benign view of the legal profession, taken as a whole.   He has also spent five years studying the practices of doctors, accountants and so on.  He is not suggesting that there is any malice at work.  However, in terms of economic and institutional incentives, we are inclined to conceptualise and categorise issues as problems in our fields in our own orthodox legal ways.

There is empirical evidence of the value of changing practices in the field of family law.  In collaborative law[8], two lawyers resolve marital issues together.  They agree a date, and if after that date the dispute is not resolved they have to withdraw.  This practice changes their incentives, and thereby changes the pace at which they resolve cases.  This has been well-researched.  At present we incentivise inefficiency.  We don’t reward efficiency.

We need to explore whether there are other ways of sorting out problems to which the professions have provided the answer in the past.  We can’t afford their current answers.  Our educational, health and legal systems are all creaking.  At present we only have one mechanism for making our expertise available.  We need more than one.

Lawyers don’t like this sort of talk.  New entrants to the profession are asked whether they want to be like Rumpole of the Bailey, but that is a 20th century conception of legal practice.  Nowadays you should go into the law to improve access to justice, not to pursue the traditional profession of being a lawyer.  The new generation of young professional men and women are going to be the people who change the way we work – not to preserve the way we work.

We should not shy away from criticising institutions.  Is it anti-lawyer rhetoric that makes lawyers unable to change? No, they don’t want to change because they, like all the rest of us, are deeply entrenched in our current working habits.  Sometimes lawyers joke that they hope they get to retirement age before these changes happen: there is some truth in this saying.

The new professions will need wholly new skills, when compared with those that their members possess now.  They will require people to design systems.  Who goes through law school today thinking they will become a systems designer?  Imagine, for example, you developed an online system in welfare advice which would help millions of people at once.  That is a much more exciting prospect than becoming a traditional lawyer.  Today accountants are transforming their tax and audit practices and are being much more open to change.

Look at what happened to the mercers, the wheelwrights, the tallow chandlers… There are different, better ways of making candles now, and there are different, better ways of making legal advice available.

He is not intending to insult the legal profession: just to challenge it.

The value of technology in creating new ways of doing things and correcting power imbalances

He very much agrees that we should not be using technology to try to streamline inefficient manual processes (like the processes used by the Legal Aid Agency).  It should be used to design new and better processes.  Instead of fine-tuning current systems, we should go for radically new ways of looking at these issues.

We can develop predictive technologies to calculate the likely expenditure of costs on a case, based on past data.  Big Data was used to help a machine with no knowledge of law to predict the outcome of patents cases, its work being founded on a database of 22,000 past cases.  Predictive analysis is already more effective than human reasoning in the US medical profession, and it is becoming more reliable.  When filling out bureaucratic forms you are doing a predictive task: how long am I going to take on each task etc.  This can be automated.

He hopes that the arrival of online courts will reverse the playing field and correct the present power imbalance.    It should be easier to change the behaviour of powerful people – employers, landlords etc. – if people know their entitlements and have a better chance of asserting their rights.

We should allow people who are computer literate to get on on their own.  We must also be able to assist those who need it.

Of course we will need to have human beings “in the loop” to deal with people like those who are so depressed about life that they can’t open the envelope which tells them they have problems – with the result that the problems escalate.

We also need to change the nature of the physical locations at which help is given.  Why can’t we have stations within the community where people can go and plug in and get help – help on both health and legal issues, because the two are so interrelated.[9]  There would then be a mixture of machines and people to provide the help you need.  Compare the scene at a ticket barrier at a railway station.  Most people get through without help, but there are some station staff available who can help if need be.  One of the qualities for the advisers of the future is empathy: becoming less of a technical problem-solver and more of an emotional advisor.  If the work that is required of advisors is counselling, they should be trained for that.

Technology is not the panacea which can solve all mankind’s problems.  The more facilities are available; the more empowered people will be. Easier access to the answers also makes people like landlords less inclined to blind their tenants with legal science.  Their bad behaviour would be more easily overcome if people are more likely to be able to hold them to account.  We have to set up systems in ways that motivate people in power – landlords, employers, police officers etc. – to behave well in the first place.

On the fundamental problems in society that relate to imbalances in power, technology democratises.  It spreads power more evenly.  It is all about getting to a better place – not to the best place.  Voltaire again.

The importance of brand names and the way thing should develop

It is of fundamental importance that people should know which sites they can trust.  This needs strategic thinking.  It is allied to the questions about brand.  Citizens Advice is the best-known brand, and as such it is the first port of call for many people.  If you ask most worried people where they would go to for advice, they will name Citizens Advice.  It would be good to utilise this brand.  The use of SEO (search engine optimisation) so that the best one comes up on google searches etc. is entirely feasible.  Confidence in brand is really important.  Trust in online advice is absolutely crucial.  As a user you can’t judge if the advice you receive is good or bad.  If it is delivered by citizens Advice they will have confidence.

In social media people express their views on the services they receive.  Things like EBay work because people express their opinions.  The same will happen with legal information systems.  The best will rise to the top.

We are much too focused on formal credentials.  In+- the online world people are more focused on reality: did it help, was it useful?  People will share their experiences.

In our Committee we identified 18 different situations which dominate legal aid costs.

Strategic leadership by the commons

Strategic leadership can be developed in three ways: control by the market alone; control by the government and voluntary sector; or by the commons.  The third option is what he prefers.  Look at Wikipedia.  10 years ago we would have thought it unreliable.  Now we know it is a phenomenal resource. Lots of new research and programming is being developed on commons basis: it will be a common forum in future.

The point is to allow people to do things in entirely new and different ways.  This is the challenge across the professions.  The real ground-breakers are not automating the problem systems of the past, but inventing entirely new solutions.[10]

 

[1] See the Civil Justice Council’s report on Online Dispute Resolution (2015), which Professor Susskind chaired.

[2] Lord Low adopted the same analogy in his evidence to us: see Update 3.

[3] Research in the USA showed that 50% of people understood “mediation” to mean “meditation”.

[4] www.probono.net for instance.  Its website bears the message: “The need for legal services among the poor is overwhelming. According to an American Bar Association study, at least 40% of low and moderate-income households experience a legal problem each year. Yet studies show that the collective civil legal aid effort is meeting only about 20% of the legal needs of low-income people.”

[5] As we did, two weeks later.  A summary of his interesting evidence will appear in Update 5.

[6] Legal needs, Legal capability and the Role of Public Legal Education: A Report by Law for Life (Lisa Wintersteiger, 2015)

[7] Our next witness, Roger Smith, talks about this system: see Update 5 (when it is ready).  Although his description is now three years old, a 2013 blog gives a vivid, step by step description of what the site sets out to achieve.  More up to date information is available on the Rechtwijzer website.

[8] The website describes collaborative practice like this: “Collaborative Practice allows divorcing or separating couples to work together as a team with trained professionals, to resolve disputes respectfully, without going to court.   Each client has the support, protection and guidance of his or her own lawyer. Together, the lawyers and clients form the collaborative component of Collaborative Practice. The lawyers agree that they are there to help the clients through the collaborative process, they are not there to take the case to court and are prevented from doing so.  The main elements of Collaborative Practice are set out in a contract called a Participation Agreement, which both the lawyers and the clients sign.”

[9] For this interrelation, see Lord Low’s evidence in Update 3, and the Low Commission’s third report (July 2015).

[10] In the past I remember Richard Susskind frequently referring to cash machines in this context.  Banks never used to make money available by letting customers take it from a hole in a wall.  They had to queue at a cash desk.  Automation made it possible for banks to introduce an entirely new and much more efficient way of doing the job.

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