Re-engineering Sources of Law for Unaided Litigants

Philip Leith

Cite as: Leith P., “Re-engineering Sources of Law for Unaided Litigants”, in European Journal of Law and Technology, Vol 1, Issue 1, 2010.

"The disparity between litigants who are wealthy and those who are not is an unfortunate reality. Undoubtedly, some litigants have better access to unpublished opinions, just as some litigants have better access to published opinions, statutes, law review articles - or, for that matter, lawyers. The solution to these disparities is not to forbid all parties from citing unpublished opinions. After all, parties are not forbidden from citing published opinions, statutes, or law review articles - or from retaining lawyers. Rather, the solution is found in measures such as the EGovernment Act, which makes unpublished opinions widely available at little or no cost." [1]

Abstract

The better models of e-Gov posit high levels of informational communication between citizen and state. Unfortunately, in one area, that communication has traditionally been poor: that is, access to sources of law. There have been a number of reasons for this, but a primary one has been that law was historically mediated for the citizen by the legal profession. This situation is changing with ever increasing numbers of unrepresented litigants being involved at all levels of national court systems in each and every country as well as a generally higher level of intrusion of legislation into everyday home and business life.

There have been attempts to improve access through internet based services, but these have improved communication ('understanding of law') to only a limited extent. It may be time, this article suggests, considering re-engineering legal sources so that they better fit the needs of eGov.

1. Citizen Access and EGov Goals

The traditional view of the citizen has been that they are recipients of the expertise of others - particularly, in terms of law, lawyers. We have seen that this model is now changing as technology provides the driver for a more active and demanding citizen. Partly this has been due to the excessive costs of litigation in the common law countries, but there are also a number of other reasons. Amongst the latter has been the difficulty of accessing sources of law as legislation piles up on legislation and case law grows the pile even larger.

In an ideal world the citizen would be able to determine what the state of the law was in relation to any problem or need they may have. [2] That, of course, is an ideal because knowing the state of law is only one part of the necessary process - the secondary part is knowing what to do with that knowledge, which has both a strategic and a procedural element. For example, a neighbour may know exactly the statutory basis of boundary walls and may have access to all relevant case law concerning boundary walls and foundations, but they still have to find out how to use that law to coerce or persuade their neighbour to allow them, say, to build up to that wall with associated foundations. Such matters are of concern to the citizen - in a world where housing density is rising constantly; the role of the state to better regulate property rights between citizens becomes necessary.

In England the state enacted The Party Wall etc. Act 1996, which is easily available form free sources (e.g. BAILII [3] ). The Act, being important to many - and long called for - is also detailed by many local authorities in online explanatory leaflets. Case law is also available from BAILII: at the time of writing 6 appeal cases are available and 2 High Court cases. The citizen thus has relatively easy access to information about the state of the law, how to notify neighbours of intended actions, what operations on a wall are allowed under the Act, how to utilise dispute resolution (an independent surveyor) and when they may turn to the Court to appeal that surveyor's decision (though how to proceed to court is more problematic). Interpretative differences about the meaning of legislation can also be viewed in the court decisions. The situation in England is good, but in other parts of the UK where such a legislative system is not in place, the property owner is in a much more difficult position with regard to 'knowing what the law is' about party walls and boundaries.

Another example from planning regulation - but taking the view that the underlying law can be accessed through non-textual means - is from the AddWijzer project [4] where an intermediary tool was used:

"Planning a festival, moving a petrol station, extending a family house, re-routing a water supply, and so on - all require some knowledge of laws, regulations, permits, and even local geography. The final users of the information can be companies, citizens or organisations of people (civil society, local authorities or business groups), but they depend on local 'experts', many of whom are not trained lawyers. These are the customers for Add-Wijzer."

In this approach, the law was analysed but rather than provide text based information, a map oriented interface was utilised to indicate to users which geographical areas were regulated and in which way. This provided a graphical interface which then allowed access to planning regulations and other textual information. Thus since law is related to location, citizens can access - if they wish - the law which is hidden behind that locational index.

Clearly, these are positive examples of how the citizen can be better informed of how law regulates their social activities, and are indications of how access to this kind of information can be enabled through eGov. The central notion is that there is - like the Protestant and God's word in the Bible - a direct link between the citizen and the law, without the requirement for a priestly intermediary to explain either the Bible or planning/property legislation. This is the ideal for eGov - the citizen enabled to understand the law of his or her land.

2. The rise of the Unaided Litigant

'Litigants in person' in the UK or 'pro se legal representation' in the US - the individual who seeks or finds themselves in the civil justice system is a rising factor for court systems. Family law in particular, where divorce and access to/care of children, are areas where the unaided litigant appear in increasing numbers. These litigants have a number of significant problems - they tend to make more mistakes in the process and struggle to understand substantive law and procedure. [5] In an ideal world, every participant would have access to legal advice and advocacy, but the legal world - the common law world especially - is not ideal, and complex procedural and substantive law acts as a barrier to participation. There are two views on where the problem lies - first, that litigants in person take too moral a view of their litigation (they seek 'justice') and fail to tailor their litigation in terms of court requirements, and thus put extra pressures on the court. Here, the litigant is being viewed as the problem, failing to adhere to court standards and requirements. The extreme usually suggested by this view is the obsessive who eventually finds themselves on a list of vexatious litigants. [6]

The second view is that it is the complexity of the court system which is the problem: a system which has grown up to service the needs of the lawyer directly and the client indirectly, is not appropriate for a world with a higher need for involvement in the civil justice system. We take this view for the vast majority of litigants in person as has other research.

Some deregulation of legal services has been driven by this latter group. For example, house purchase in the UK, tribunal avenues rather than the courts, etc. But for many areas of law, there is no alternative to the court system should a resolution of a problem not be found through negotiation or alternative, non-court routes. [7] For these, knowledge of law is essential.

3. Current Barriers to Citizen Access

If the law relating to party walls in England is a good example of citizen access to legal sources, what are the barriers which tend to reduce ease of access to the citizen? There are a variety, of which the following are examples:

3.1 The confusion of legislation

The Party Wall etc Act is relatively self-standing. It has only two pieces of subsidiary legislation affecting it (neither of which amends the Act itself). In other areas, this is not the case. Take a small business which wishes to protect its intellectual property rights. Here the quantity of relevant legislation is striking - various Directives, several large Acts, and many, many Statutory Instruments - and it would be difficult for anyone who was not expert in the field to understand how these are all put together. Yet copyright is - we are told by governments - an important part of the modern digital economy: if it is so important to the economy, why is it so confusing and difficult to access the underpinning texts of copyright law?

3.2 The confusion of case law

In common law countries the real meaning of law lies in the case law which interprets legislation. Until relatively recently access to this case law was very difficult and expensive - a situation which has its explanation in the historic role of the private publisher - and older judgments are still in some jurisdictions considered proprietary information. [8] This access situation has improved greatly over the past decade with decisions in the US such as Hyperlaw [9] which effectively removed the copyright protection being claimed by private publishers and systems such as AustLII and BAILII in the common law countries, which offer free access to court decisions. Not everything useful is available, of course: one example is that in Northern Ireland first instance employment tribunal decisions are available, but not in England and Wales.

In other European countries, of course, case law is frequently reworked into primary texts of law so the problems are lesser, though still present. In some of these countries case law remains privatised.

With access to case law, the citizen can - without the need for an intermediary - glean the thinking of the judiciary and see how law is being interpreted, as well as picking up on the moral framework of the judge (given that 'who behaved well' is an important element in advocacy). Without it, they have only the legislation to consider and - as every lawyer knows - legislation can be interpreted in a variety of ways [10] .

3.3 The Confusion of Procedure

To the advocate, procedure is the most important tool in their tool box. Without knowledge of how and when to do something (fill in a form, use a legal procedure, seek evidence, etc.), the advocate will flounder to achieve their client's goal. [11] Procedural knowledge is something which is usually gained through practice and repetition of the same kind of case load, and rarely taught in the law school. It is thus part of the craft skill of being a lawyer. This suggests that it is not available to the un-aided litigant, and indeed the evidence confirms this - where parties are not represented there is a tendency for cases to last longer or for there to be less frequent interaction with the court and to achieve less.

3.4 What is the quality of information provided?

There is often a suspicion from users of government advisory resources that the legal information provided may be counter to their own interests (e.g. may be pushing a view of the law which is biased towards departmental needs) or that providing information may affect other interactions with that department or other departments, or that no-one wants to give advice. In earlier research [12] examples were found of these:

"[government department] have specialists but it is hard to get anyone to take responsibility for providing accurate advice - they are afraid of being held responsible, so they keep passing you on to someone else. Also some of our members are afraid to ring government departments in case they invoke inspections from that department or other departments."

And:

"There is an environmental help line - funded by government … It is well-resourced (full legal team) and useful - they will give specific interpretative help, but people don't trust one government department not to talk to another government department and are afraid to use it."

We should not underestimate the need for trust to be built in any interaction - eGov or not. Without trust in a system it will not be utilised. Also, given that law is agonistic the combatants in litigation are unlikely to trust an interpretation of law provided by the opposing side.

3.5 Individuals find provided information difficult to understand

One of the problems of providing information about law is that some find the processing of that information into something which can be acted upon difficult. Leaflets have been one of the traditional ways to communicate with non-aided court users for some time, but these have consistently been undervalued by their intended user. As one court staff member put it to Moorhead and Sefton':

"And, I mean, we've got leaflets out there, we've got free advice agencies, we've got the CLS leaflet, we've got every leaflet that is available, we've got a public counter and I've been there for 12 years, so I know what the public want. But, if they're not reading the leaflets, and a lot of people don't or don't understand the leaflets, then really there is very little you can do in some respects." [13]

Why this should be is not clear - it may be that textual sources are difficult for some to relate to practice, or it may be that there is a lack of trust that the information will be neutral or that the litigants want positive rather than neutral advice.

4. Technological and/or System Remedies?

The earlier view of - for example Berring [14] - that non-lawyers should be kept away from legal information sources for their own good has been shown to be outdated. The evidence from systems such as BAILII is that they are used effectively by non-lawyers. So can technology help the unaided litigant? Of course it can, but the question is more one of how much it can help and whether the access barriers can be effectively remodelled so that an eGov approach can be utilised:

"the trend toward disintermediation, client-centred service and self-help will continue to accelerate because of the power of information technology to enable access to the law in ways that a non-lawyer can comprehend and use effectively in a widening spectrum of situations and cases." [15]

To date, there have been significant uses of technology, but the civil justice system has been remodelled only marginally to support that technology. Examples of this remodelling are the production of online systems to initiate 'low level' actions such as, in the UK, Money Claim Online and Possession Claim Online. [16]

However, there are substantial problems in simply applying a technological solution. We can see an example of this from the Statute Law Database[17] (SLD), a project funded by the UK government to make legislation easier to access. The Renton Report [18] in the 1970s had looked at various ways of making legislation easier and briefly suggested technology might help, [19] and this idea was taken up in the SLD where legislation was processed so that the user would be enabled to see a copy of the law at any particular point in time. The project is certainly effective, but at a very high cost - in terms of delay in getting the project to a usable state, continual costs of processing of legislation and of restricted coverage. [20] In a current climate where public funding is under scrutiny, such a project may be viewed as desirable but uneconomic.

The problem for the SLD is that it had to take legislation as it was given - that is, sources of law were being produced in the same statutory language with the same baroque structure as traditionally produced. The difficulty which the project team have met has arisen from an attempt to use technology to enable access to information in a pre-technological format. An analogy would be to design word processing software to produce manuscripts. This suggests that throwing technology at the problem will succeed, but at a much greater cost than when that technology is used with re-engineered forms of legal sources.

5. Re-engineering Sources of Law for eGov

Calls to simplify legislation and make it more accessible are hardly new and a variety of proposals have been made and some have had considerable effect - the role of the Office of the Law Revision Counsel in producing the various Titles in the US Code is a clear example. [21] Lawyers themselves have encouraged the development of systems to improve the accessibility and reading of statute law through law commissions and 'statute law' associations. [22]

However, the rise of eGov needs gives extra impetus to take this problem more seriously and to marry technology with the needs of the user of legislation and law. Many of these past attempts have either been located in purely technological approaches, or - more rarely - haven't understood what technology can offer. A research and development process should use the concept of re-engineering - rethinking how we produce law, how we formalise it, how we index it and relate it to case law, and how we enable the non-lawyer to understand what law is at any point in time.

How to get there? A solution will be part-technical, part codification, but also will require legislatures and legislative draftsmen to adopt new ways of thinking. In the EU funded project 'Breaking Barriers to eGovernment' [23] the concern is mostly with which national legislative enactments limit, but we can use their 'inventory' of barriers categories to suggest what might bound our attempts to make law accessible:

  1. Leadership failures - the problem of producing clear law has been with us for centuries, and may seem to be too big a problem for any politician to decide to take a leadership role.

  2. Financial inhibitors - the current process of legislating is cheap and cheerful only requiring an underfunded legislative draftsman's office. Why expend more money when there are other calls on funding?

  3. Digital Divides and Choices - even if providing better accessible law, will the 'leaflet problem' still exist and only the better educated make use of accessible law?

  4. Poor coordination - there are so many actors in the current system (lawyers, politicians, judges, pressure groups, etc.) that co-ordinating the required strategic plan which keeps all users on board will be difficult. Coordination then becomes near impossible.

  5. Workplace and organizational inflexibility - the difficulties of changing constitutional practice have been shown in the problems in updating the UK Parliament's working practices. Similar problems arise in every parliament. Legislating is the core working of a parliament and thus particularly difficult to change. The judiciary, too, is not known for its desire for radical change.

  6. Lack of trust - law is political and there will be fears that amending how we legislate will change its nature and affect some of those groups in the system.

  7. Poor technical design - that rather than build incrementally upon successful to date strategies, a vainglorious research project is taken to provide a system which seeks to do too much (see the expert systems movement from the 1980s.)

The goal of clarity and accessibility in law is thus a difficult one. However it should be seen as a core goal if government is seriously concerned about eGov and communication with the citizen. Hopefully, the Zeitgeist may be changing as we see that all can potentially benefit from better law making in a digital world.

6. Conclusion: What do we mean by re-engineering?

It is easier to use the term 're-engineering' than to suggest exactly what we mean by this in practical terms. Does it mean replacing leaflets with video, making judges publish decisions, making them publish them in a given format, providing tools such as citation indexes, or facilitating the integration of web 2.0 tools? It could mean all of these, but probably also includes possibilities which have not yet been considered.

In the 1970s and the 1980s there was an interest in how technology could enable the understanding of law. This generated a great interest in using artificial intelligence techniques and an unfortunate dismissal of other kinds of technological applications in law. [24] With the failure of the AI approach, there was almost a total lack of interest in funding any other kind of approach and this re-engineering of law and legal sources became a very difficult field in which to seek research funds. It is also the case that any tool which was viewed as intruding upon the judge's domain was seen as a threat to the judiciary and - though they may formally have accepted involvement in programs such as judicial information systems - they do so without enthusiasm or desire to see these progress through to success. [25]

We are currently at a point where information scientists' interest in carrying out research into legal information sources is at a low. Re-engineering must mean the coming together of lawyers and these technologists to describe and test tools which might make citizen access to law better, and then to hope that government will have the desire to overcome the problematics we have listed.


[1] Report of Advisory Committee on Appellate Rules, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, 2005. Available at http://www.uscourts.gov/rules/Reports/AP5-2005.pdf

[2] A positivistic view of law is not being pushed here: there is no single interpretation of law - each call to a rule depends upon facts and the wider context.

[3] http://www.bailii.org/uk/legis/num_act/1996/ukpga_19960040_en_1.html In the US there is a similar service offering free access to judgments from CornellLawSchool. See Martin P, 2008, Finding and Citing the "Unimportant" Decisions of the U.S. Courts of Appeals" at http://topics.law.cornell.edu/wex/papers/lir2007-1. Other jurisdictions are covered by AustLII (www.austlii.org).

[4] The author was a member of the project team which was an eContent project funded by the EU looking into how public sector information could be better reused for the benefit of the citizen. A short final report is available at http://www.addwijzer.info/addwijzer_finalreport.pdf. More detailed information is available from Wilson F and Peters R, "Mapping The Law: Knowledge Support for Business Development Enquiry", eChallenges 2004 Conference - Vienna - 27-29 October 2004, available at www.i-d.co.uk/pubs/AddWijzer.pdf.

[5] Moorhead R and Sefton M, [2005] Litigants in Person: Unrepresented litigants in first instance proceedings, DCA Research Series 2/05, London. See also Greacan, JM, 2002, Self Represented Litigants And Court and Legal Services Responses to Their Needs: What We Know, available at http://www.lri.lsc.gov/pdf/02/020045_selfrep_litigants&whatweknow.pdf

[6] Clarke A, "Vexatious litigants & access to justice: past, present, future", Keynote address, Conference on vexatious litigants 2006 - Italy. Available at http://www.judiciary.gov.uk/publications_media/speeches/2006/sp300606.htm

[7] See for example Nadja Alexander, "Mobile Mediation: How Technology is Driving the Globalization of ADR", 27 Hamline J. Pub. L. & Pol'y 243 (2006)

[8] Leith P & Fellows C, forthcoming, ">Enabling Free On-line Access to UK Law Reports: The Copyright Problem", in International Journal of Law and Information Technology

[9] The full documentation is available at the Hyperlaw web site - http://www.hyperlaw.com/westlit/hlvwest-pleadings.html

[10] European patent law shows that in Art 52 of the EPC with attempts to circumvent clear statutory language by the Boards of Appeal of the European Patent Office when it is unwelcome but difficult to change. See Leith P., Software and Patents in Europe, CambridgeUniversity Press, 2007.

[11] See Morison J and Leith P. (1992) The Barrister's World: And the Nature of Law, para 376, available at http://www.bailii.org/uk/other/books/1992/b1.html

[12] Leith P & McCullough K, 2004, Developing European Legal Information Markets based on Government Information, in International Journal of Law and Information Technology 2004 12(3):247-281

[13] Moorhead R and Sefton M, [2005] Litigants in Person: Unrepresented litigants in first instance proceedings, DCA Research Series 2/05, London. Pamphlets were earlier promoted as an effective means to reach the citizen - see Citizen Access to Legal Information: State Bar Association Pamphlets Promote Public Understanding, 112 LIBR. J. 38 (June 15, 1987)

[14] "Amateur researchers can do more harm than good. They fail to understand both the system's limitations and their own minimal ability. Just as attorneys could be liable for poor research with traditional methods, the inept computer researcher may be the subject of tomorrow's malpractice claim." Berring, RC, 1985, 'Terminal Awareness', California Lawyer, Nov.

[15] Granat, R. S. "From Legal Services to Information Services" The Digital Legal Applications Center < http://www.granat.Committee/legalservice.html> p.6

[16] http://www.hmcourts-service.gov.uk/onlineservices/index.htm

[17] http://www.statutelaw.gov.uk/

[18] The Preparation of Legislation (Report of the Renton Committee on the Preparation of Legislation) Cmnd. 6053, HMSO.

[19] It mentioned logical AI-based approaches which have not proven themselves - see http://www.leibnizcenter.org/

[20] Statutory Instruments have become a very frequently used method of legislation. See government view of including updated SIs in the Statutory Database at http://www.publications.parliament.uk/pa/ld200506/ldselect/ldmerit/275/27507.htm Recommendation 13.

[21] http://uscode.house.gov/lawrevisioncounsel.shtml

[22] In the UK each jurisdiction has its own law commission "to keep the law under review" and also there exist societies such as the Statute Law Society.

[23] http://www.egovbarriers.org

[24] See Leith P (forthcoming) "The Rise and Fall of the Legal Expert System" in European Journal of Law and Technology (www.ejlt.org).

[25] Cyrus Tata "Resolute Ambivalence: Why Judiciaries Do Not Institutionalise Their Judicial Decision Support Systems?'" International Review of Law, Computers and Technology 2000 Vol. 14 No.3 pp 287- 316