Innovation and an online family law sector

Open note to Roger Smith

 

Hello Roger

 

The nub of your article in New Law Journal 17 February 2017 seemed to be: ‘We are talking of automation of any element of a job which is predictable’. You were talking about automation of appropriate part of the legal process, and predicting job losses of between a third and a half in legal services just as in the motor industry.

 

My lap top is open, Roger (as you urge at the end of your article); but I am sure I am nowhere near your league for technological ability. That said, I am no Luddite. I have felt for years that procedural clarity and reform to achieve savings of costs should precede legal aid starvation; and that if clarification is not achieved – a slightly different point – then the rule of law is threatened. Yes, yes, yes, you say… OK, I’ll come back to earth; but the need for a rule of law in all this must be kept in mind.

 

In my own field a divorce on-line scheme has been introduced by Ministry of Justice (http://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/practice-direction-36d-pilot-scheme-procedure-for-using-an-online-system-to-generate-applications-in-certain-proceedings-for-a-matrimonial-order; and for a discussion of it see https://dbfamilylaw.wordpress.com/2017/02/03/on-line-divorce-scheme-an-update/). That must be one of the most obvious fields for on-line efforts. Unless a divorce is defended there is no need for any exercise of a judicial mind (though even with that I cannot see how a client gets into the scheme – pilot or not – as things now stand). Access apart, a divorce on-line cannot be much of a challenge, for the Ministry of Justice; though my search for it on-line does not enable me to find it any longer. .

 

Let us look at child maintenance. Like income tax as an end, it is essentially a two-dimensional problem. Work out someone’s income; count up the dependent children; and then say what proportion the payer parent must pay. There are relatively few external factors. The Department of Work and Pensions are onto their fourth major reform of that idea over nearly 25 years; and still (if they are honest) I suspect the arrears are mounting. I accept that is as much an administration and an enforcement problem. Maybe online access to, and operation of, the scheme would help a lot; but on-line enthusiasts will see that – even for this two-dimensional issues – there are problems.

 

But, Roger (and while I think of it): you know what you are doing when you open your lap-top. Remember that there are still Daniel and Daniella Blakes out there who cannot – or like a very good classics PhD friend of mine, will not – access the internet. Will our brave new internet world impose that obligation on them? Will conscientious objection be recognised? Or is a right not to use the internet to be lost? Will all of us have to submit to the Big Brother surveillance which internet access makes inevitable? (I remain bewitched by its powers. I could not do my job without it. That doesn’t mean I would deny a person the right not to use it; any more than I would destroy your fountain pen.)

 

But back to my law subject: I entirely agree that we should simplify process. This must be so, and where legal proceedings are needed, where mediation has failed: for more on mediation etc online see Online Dispute Resolution for low value civil claims (February 2015) by the Online Dispute Resolution Advisory Group (of which you were a member: http://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf ; and see my comment on this at https://dbfamilylaw.wordpress.com/2015/02/16/online-dispute-resolution-can-it-work-for-family/).

 

If family litigation, say over money, has not been resolved by mediation, it must be easier to find a largely on-line scheme than the matrimonial finance process we have at present. Whilst, as every family lawyer will say, each family is different, there must be enough common features about most families with relatively straightforward finances to reduce initial – perhaps most – stages to a similar framework. This will cut out a lot of work now done needlessly (eg disclosure of unnecessary documents). Great expense to the parties on lawyers – or, with legal aid reduced, wear-and-tear on their lives to the parties themselves.

 

And once we think about it, I am sure – without disproportionate damage to the family law legal system – that lots of ideas can be developed; and this within a procedurally simplified family law on-line system.

 

Worth a chat?

 

David

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