While I don’t rank in the very first rank of cynics, I think of myself as at least county standard. ‘He would say that, wouldn’t he’ is practically a motto. So, I have viewed the recent rush by courts towards a full embrace of technology with some reservation. And it really is a rush by the standards of the past 30 years, during which progress has been marked by movement so glacial that the Courts Service came 4th in a glacier race. The sudden clamour for more rapid adoption of technology has come from a number of top judges and, more important, money has been allocated by the Treasury. Here is something that I have long hoped for and it really looks as though it might happen. My immediate thoughts were predictable. Can it be for real? And, to slip into the vernacular, how are they going to stuff it up this time? This is a lengthy look at how I overcame my reservations about ODR and a call for more emphasis on one of the planks that must be in place for ODR to be truly effective.
{b}Doubts{/b}
If I have general doubts about the chances of an increased use of technology improving the justice system, there is a more nuanced reason for my reservation which applies especially to ODR. Like most of you, I mourn the declining status of the justice system in the minds of both government and citizens. The questionable clamour to dispense with things we can no longer afford has found a target. You and I may not think it should be an easy target but it has proved to be an easy target nonetheless. I still recall the looks of pity and bemusement that were directed at me when I recently tried to argue to non-lawyer friends that a working legal aid system was almost as important as the NHS. The effective disappearance of legal aid in so many situations has led to a situation where many are without remedy or are forced to act in person when totally ill-equipped to do so. As Lord Justice Briggs observed in his interim report for the Civil Courts Structure Review, ‘[t]hose who choose, or are forced, to litigate in person suffer crippling disadvantages by comparison with represented opponents which none of the present efforts to alleviate do more in reality than palliate’. He was presumably addressing the situation in civil claims – most people seem to think that the situation in the family jurisdiction and the criminal justice system is much worse. We may be 20 years away from realising the effects of some of the changes to the availability of representation in family proceedings and the encouragement given to the decline in quality and availability of representation in criminal proceedings. If you are under the impression that we have a functioning system at present, read {this: http://www.buzzfeed.com/patricksmith/lawyers-sound-alarm-as-digital-courts-revolution-beset-by-pr?utm_term=.nwN5Br8nO4#.jp90rmbDeJ}, {this: http://www.legalvoice.org.uk/2016/04/04/laspo-the-cuts-that-keep-on-cutting/} or {this: https://crimbarrister.wordpress.com/} for an idea of what life is really like these days. But given my likely readership, I suspect you all know that things aren’t going too well for the justice system.
The use of technology within the justice system isn’t really an answer to the problems and, with some real justification (because not all of those advocating increased use of ODR have motives that are pure), has been characterised as a sticking plaster for a wound that requires long-term devoted care and a bloody great bandage. So, when I see the application of IT trotted out as some sort of answer to all the problems with access to justice, I bristle and my cynicism reaches its zenith.
But the truth is that {i}ODR{/i} is an answer to a problem that has been with us for much longer than the decline in legal aid availability that has steadily accelerated over the last decade. The Ritz Hotel syndrome (open to all if you can afford it) has been around even longer than the aphorism itself. One danger is in thinking that such obstructions to access to justice are, like the poor, always with us. That is a ‘truth’ which we need to unlearn. This is an area where technology really can transform. We all now have access to Wikipedia when once only a handful had ready access to Encyclopaedia Britannica and we may all look forward to a time when some sort of access to dispute resolution is available to all. The comparison with Wikipedia is doubly apt as the ODR regime may well have glaring errors and be manipulated by those with special expertise but it will still be better than the alternative vacuum.
In short, I have put aside my reservations and embraced the ODR concept. It may be an answer that helps only the educated and committed and it may leave the socially disadvantaged little better off but the adoption of ODR will not be the {i}cause{/i} of the unanswered problems of the disadvantaged. The danger is that it allows those problems to be ignored and that’s a danger that those who believe in the usefulness of ODR need to bear in mind.
Most of the potential problems with ODR are carefully considered in the submission of the ODR Advisory Group to the Civil Courts Structure Review of Lord Justice Briggs. That submission can be read {here: https://www.judiciary.gov.uk/wp-content/uploads/2016/04/cjc-odr-advisory-group-response-to-lj-briggs-report.pdf}. It is vital reading in this context but I think it lays insufficient emphasis on the difficulties that some members of the public will encounter. Those difficulties go beyond the lack of access to tech and extend to a lack of the level of education that an online system requires if a case is to be put succinctly and cogently on paper.
{b}Resolving Technical Implementation Fears{/b}
I believe that we are entering a crucial phase in the implementation of ODR, especially if the plans for a separate ‘ODR court’ come to fruition. Many would point me to the MoJ’s track record on implementation of pretty much anything and ask ‘why have you any hope?’ I have doubts, of course, and cling to the hope that lessons from past failures have been carefully digested. But the track record of indifferent implementation does suggest that those involved are going to need as much help as they can get. Only if those with relevant knowledge embrace ODR, however warily, will it be as good as it should be. Ignoring it as an initiative until it collapses in on its own inadequacies isn’t a sensible strategy (even if it succeeded).
I hope that some of the help that the MoJ and the Courts Service needs will come from other branches of central government. While the landscape of large-scale government IT projects is littered with corpses, my own experience of some important aspects has been almost relentlessly positive. Income tax and VAT returns, car tax, company returns, passport applications all have gone without a hitch and more smoothly than many much less complicated transactions involving private sector technology (it can take three attempts to buy a train ticket). A recent use of Money Claims Online was surprisingly smooth, and much more satisfying than the preceding ‘helpline’ exchanges with VictoriaPlum (where a wildly inaccurate tutorial on consumer law and the law of evidence left me a tad frustrated). Even my favourite government IT failure has its benefits – I always encourage as many people as possible to use their e-passport so that I have fewer people in front of me in the queue for the manned, and much quicker, gates.
In short, it is wrong to think that all government IT projects are doomed. The Government Digital Service certainly talks a good talk and appears to know what it is doing. One hopes that they can have some useful input and don’t find departmental boundaries obstructive.
I also hope for really valuable input from the judiciary, which is rapidly transforming in attitudes and understanding. While there is sometimes a disconnect between what judges think they know about technology and what they actually know, there are pockets of real understanding and there is real enthusiasm so it does not seem likely that the history of subtle judicial obstruction of the implementation of technology, some of which was not all that subtle, will be repeated. But it is very important to note that the purpose of court-based technology is not to make judges life easier. It should do that, but that should not be its ultimate objective and, it follows, the occasional adjustment required of judges should not sound the death knell for technological innovation.
{b}Resolving Application Fears: Guidance Systems{/b}
My greatest fear, hinted at above, is that we will see all the resources that are available spent in the creation of an ODR system that helps the educated middle classes and leaves the less well-off behind (I am assuming that the rich won’t be using it). It is not that a limited solution is a bad thing in itself – if we wait for universal solutions, we will wait for ever – but there have to be concerns about priorities in spending. While I would like to see reverses in the trends on legal aid spending, I accept that reverse is not going to happen for a while so worrying about priorities in spending has to include spending priorities in the application of ODR.
While the ODR Advisory Group gives real weight to the need to create educational resources which offer guidance rather than just information, as that Group observes ‘the task of providing basic legal websites is not trivial … the current combination of available legal websites (public, private, and voluntary) is confusing for users – there is duplication, there is no consistency of style and tone, and it is hard for a non-lawyer (and even for lawyers) to know whether the materials are accurate and up to date’. The Group don’t mention that the best resources, though still full of defects in this context, are expensive. The suggestion that this problem with the resources available as an adjunct to those engaging with ODR will be fixed by working closely with ‘not-for-profit legal advice providers’ and the expression of a ‘hope’ that funds will be available to assist in the development of this assistance in tandem with the development of the online court leave me cold – tepid at best.
There would be no reason for limiting this collaboration to the not-for-profit sector if it were not for a real fear that there will be limited resources – and I suspect that, in this context, limited resources means zero money. So the ‘hope’ feels empty.
It must not be left there. Richard Susskind, who is Chair of the Advisory Group on ODR, was the inventor of the phrase ‘legal information engineer’ and predicted that this would be a new career option for many. While I don’t know of anybody with ‘legal information engineer’ as a job title, there are now a good number of such people working under a variety of job titles. ODR offers a great opportunity for an explosion of that career path – people who understand the technology for ODR and grasp the law concerning disputes. But that isn’t going to happen, and the ODR is not going to be as effective as it might be, without more resources – and substantial resources at that. There is no reason why the ‘for profit’ sector should not be engaged in this, especially the remaining legal aid solicitors (who may well be ‘not for profit’- just not on purpose) and the Bar.
Each and every assessment of the value of ODR has to grasp this nettle: it needs money spent on supporting guidance and information because it is not {i}just{/i} a technology issue. I think the ODR Advisory Group may be mistaken in bemoaning the lack of consistency of style and tone because the guidance should be aiming at a very broad target. We need guidance that will work for the poorly educated – bullet points on the law and interactive technology that pares down a case to its legally relevant bones. But we also need to allow access to deeper analysis and original sources (case law and legislation) for those with the determination to research fully – and make it a lot easier for them to understand those sources.
ODR as one weapon in an armoury of citizen remedies, which might one day even include a resurgent legal aid system, is to be embraced and welcomed. But please, pretty please, don’t skimp. Get it right first time.
