This article first appeared in Legal Web Watch June 2018. Legal Web Watch is a free email service which complements the Internet Newsletter for Lawyers. To receive Legal Web Watch regularly sign up here.
Two recent reports consider in some detail the application of technology in delivering legal advice and assistance, viewed through different prisms. Both are, I think, essential reading if you are at all interested in legal tech as we are in danger of being swept away by the hype surrounding leading edge AI and blockchain developments at the top end of the market.
Automated legal advice
The first report, by researchers at University of Melbourne's Network Society Institute, is a discussion paper examining the Current State of Automated Legal Advice Tools (ALATs) in Australia.
The paper seeks to identify the current state of ALAT development, to consider how they are disrupting the legal industry and creating challenges for regulators. The following are brief exerpts to whet the appetite:
What are ALATs?
We recognise that technology can change not just the efficiency with which legal advice is delivered, but the way in which it may be bundled with other services (so that boundaries, such as between legal and business advice become more blurred), and, even more fundamentally, that technology may perform certain advice-giving tasks quite differently from human advisers. This of course reflects the extent to which advising, above a relatively basic level, requires capabilities that stretch, or are currently beyond the reach of software: for example, the capacity to factor-in complex considerations of interests, tactics and values, or the ability to engage in unstructured communication with others.
Legal advice or legal information?
In theory there is a general distinction made between the giving of legal advice and the giving of legal information. However, in practice, there is not always a clear line between these. The problem is apparent when we consider the development of technology-based and technology-enhanced document generation services, where there is a range of choices enabling a degree of customisation and selection. At what point does the technological assistance move from information to advice?
Adoption of technology by lawyers
The new and emerging ALATs that are the focus of this project are sometimes simple. Yet they are becoming increasingly smart, smarter and intelligent. They are built on artificial intelligence, natural language processing, and machine learning tailored for legal services. They have access to vastly increasing amounts of digitised data such as court cases, legal documents and pleadings, legal journals and research, legal websites, and a range of legal subject matters.
Legal advice: just by lawyers?
A fundamental and controversial question is the role of lawyers in giving legal advice. Are lawyers enablers of access to the law or seekers of monopoly rents? Is the current regulatory monopoly of lawyers over legal advice justified in this technology-driven world? Underlying these crucial questions are a number of others.
There is much to think about here, which subsequent reports will address in more detail, and there is in an appendix a useful selected directory of many current examples of ALATs on the market from the UK, US and Australia.
The report is published under a Creative Commons Attribution-ShareAlike licence. Image: detail from the cover of the report.
Access to justice
The second report, Digital Delivery of Legal Services to People on Low Incomes 2017-2018 by Roger Smith, is the third annual report on developments in access to justice and technology published by the Legal Education Foundation.
Roger starts by pointing out that most commercial legal tech currently focusses on AI and blockchain developments. However, "successful technology in the cause of access to justice is generally much lower tech; depends on the leverage of existing face to face provision; and looking for more incremental change than an existential leap."
Although he reviews services from around the world, I've confined myself below largely to reference to UK developments.
Roger first considers developments in online information services, in particular:
Citizens Advice is in the process of revamping its public information based on a content strategy which still relies on normal web pages as the advice format most of the time, with tools or decision-trees (eg benefit checkers) to help people find the right solution to more complex issues, underpinned by research to help define people's problems and the language they use.
Advicenow, run by the charity Law for Life, is an extremely good aggregator website which references relevant content from other organisations and provides a range of its own guides. These include a booklet on How to Win a PIP Appeal, supplemented with a tool that facilitates making a successful claim.
Moving on to developments in interactive provision, where new technologies are more in evidence, the report looks at provision under these heads:
- Assisted document assembly – citing CourtNav developed by RCJ Advice in partnership with Freshfields Bruckhaus Deringer, designed to help with completing a divorce petition; and Advicenow and seAp, both of whom have developed a checklist approach to building up a Personal Independence Payments (PIP) claim.
- Guided pathways – interactive questioning presenting information to the user in bite sized chunks addressed to their particular need and personalised.
- Legal Health Check Ups – expert systems of branching questions and answers that help members of the public to identify legal issues in specific subject areas and refers them to appropriate resources
- Chatbots – computer programmes which interact with users, capable of understanding questions and presenting answers.
It is really the degree of interactivity that distinguishes recent developments from earlier attempts: all essentially use decision trees to produce a tailored result from stored information. As Roger admits, "Most [chatbots] rely not actually on any sophisticated AI but on more mundane guided pathways with a verbal front end."
The report also includes sections on virtual legal practice, crowd funding, ODR, online education, training and support and innovative reporting.
For him the most depressing development has been HMCTS's online small claims court programme which "threatens to atrophy the shimmering potential of the internet into an object lesson of what happens when you combine hubris, haste, austerity and a reform programme funded by court sales" (words from his blog, rather than from the Report itself).
Nick Holmes is Editor of the Internet Newsletter for Lawyers.Tweet