Ch 19 Access to Justice Comes in All Shapes and Sizes

Access to Justice Comes in All Shapes and SizesSometimes Obvious and Sometimes Not

[These examples] demonstrate that alternative structures open quite wide a very large spectrum of possibilities with respect to access to justice — possibilities that today we can easily predict, as well as ones that only the future and our own creativity will reveal.

As mentioned above, a common argument made in relation to alternative structures is that there is no evidence they increase access to justice.[1] A work that is often cited in support of this argument is that of Canadian Professor Jasminka Kalajdzic. In her 2014 paper commissioned by the Ontario Trial Lawyers Association, she examines “the empirical literature in the UK and Australia with a view to identifying any data that would speak to these five metrics:” reduced cost of legal services, increased number of represented litigants, greater availability of legal services in smaller city centers, fewer unmet legal needs, and better quality of work performed.[2] Applying these five metrics in her examination of the available literature, she concludes that there is “a dearth of empirical evidence to support any of the contentions” that alternative structures lead, directly or indirectly, to an increase in access to justice.[3]

As also mentioned above, it is true that there is no “empirical” evidence that alternative structures increase access to justice. However, that does not mean that there is no evidence at all.

In the excerpts below[4] founders, managers and employees of England and Wales-, Australia-, and Washington DC-based alternative structures describe their how their structures work (or, in the last excerpt, how they plan it will work in the future). These excerpts expose a multitude of examples of access to justice, in a large variety of shapes and sizes. Sometimes the example is obvious from the excerpt, but sometimes it is less obvious (but no less significant) and for that reason the excerpt requires attentive reading:

Jenny Beck, Partner with UK-based ABS Stephensons Solicitors, explains how, using fixed prices, unbundling, and technology, the firm makes its services accessible on a number of levels:

Some of our services remain eligible for legal aid; those that are not are provided at a fixed price, so people need not fear the uncertainty of not knowing what the service will cost them…; We offer modular [unbundled] services, so that we can put together bespoke packages that suit everyone’s pocket; We offer extended services by phone and email, so that people who do not want to come into an office don’t need to (whether it’s because they are simply busy or because they’ve been subjected to violence and prefer to remain in a place where they know they are safe); We offer flexible hours, including evenings and weekends; We demystify law by talking to clients in plain English…

The Constant hub provides free access to legal support and many client loyalty benefits. Constant is unique in its offering to clients who can access a helpline open 24-hours a day / 365 days a year for 30 minutes of free legal help. Constant includes additional extras relevant to a client’s legal needs, such as access to a network of counsellors and advice on managing the media. Finally, the Constant hub also offers access to a range of guides [and] DIY legal advice videos … Constant provides a person with the assurance that their lawyer is ready to work with them at all times, delivering this message in a client-friendly way.

Andrea Pierce, Legal Services Director of UK-based ABS Kings Court Trust, explains how the company’s case management processes and software enable a high volume of client matters to be handled faster as well as with fewer errors and provides clients with greater visibility:

[A]t any given moment we have in excess of 500 open files. In contrast, in a traditional structure, typically a lawyer would deal with 10, 20 maximum, probate files a year….While the client has one point of contact, there are at least five, if not six, pairs of eyes that work on a file until it is completed. From a risk perspective, this offers a great advantage. In private practice, typically only one person oversees a file from start to finish — potentially something could be overlooked…. Another advantage we offer clients is a shorter life cycle for a file. This happens in part because of our project management software which has allowed us to build in efficiencies into our processes, and in part because of the way we structure our work — each person who works on a file is highly specialized and is able to provide solutions very quickly… [Finally,] technology is a very important part of driving our cases forward. In treating a file, we’ve broken the process into ten stages, and each stage has certain required components. With our technology, everyone knows what stage a file is in, and everyone knows what work they need to be doing. And the best part is that everything that we see in-house, our clients see too — it is fully transparent — they can track their files as we do.

Dina Tutungi, General Manager — Personal Injury Victoria, for Australia-based ILP Slater and Gordon, describes how the firm’s automated case management system allows the firm to handle a high volume of cases at the same time that it reduces errors and increases transparency:

We have created a “flow” for every type of matter that we handle in personal injury. It anticipates different combinations and permutations for how that matter can progress. It is like a “choose your own adventure” because it can go off in so many different ways by using prompts and checklists.

For example, it will prompt questions such as: Are you pursing a common law or statutory claims for damages, or both? Do you have a medical report? Will you make a claim for lost wages? Did you want to get a police report? Do you want to speak with witnesses? Do you need updated medicals?

There are thousands of these interactions in each “flow.” No, it will not teach you how to take a witness statement, or how to provide great customer service or how to manage your client’s expectations or undertake high level legal analysis. But it does minimize risk and improve efficiency, expertise and client service in a busy practice. And it is really empowering for the legal assistants because they can see exactly where the matter is at, keep the clients well informed and plan and manage their workload.

Tamyn Hearne, Associate of UK-based ABS Radiant Law, explains how the firm uses technology to systematize the collection and internal transmission of knowledge about its clients, and how the firm uses that technology to provide greater value-added:

We create what we call a “Playbook.” This is a live document which captures client-specific information and evolves as we develop a deeper and more practical understanding of the client and its operations. Depending on the work stream (client’s needs, type and complexity of an instruction), we refer to the information and/or processes within the client’s Playbook … some of the Playbooks contain a substantial amount of information, and we avoid client information sitting specifically within the knowledge realm of one person. We are always looking at ways to see how technology can assist in capturing an employee’s real time knowledge and ensure the quick and easy dissemination of Playbook information.

Compare this to how a traditional law firm typically serves its clients: One or more lawyers in the firm may or may not invest time to get to know the client. If they do, it would be exceptional that they would make the investment to get to know a client in the depth that we do, and unheard of to record their knowledge in a systematic and easily transferable way like we do. What’s more, traditional firms often shift responsibility for a client from one lawyer to another, especially from one junior lawyer to another, but without the necessary transfer of knowledge about the client and its specific needs. This is very frustrating for the client, and it limits the value that the firm may add to the client.

Karl Chapman, Chief Executive of UK-based ABS Riverview Law, describes how the company’s technology simplifies and accelerates the analysis of large volumes of contracts:

[I]magine you are [an in-house] lawyer… and you have all the contracts relating to a particular area of [your company’s] business. Imagine that all those contracts need to be re-negotiated to be sure they are in compliance with new regulations and a new company risk profile. And we also have to consolidate the number of suppliers that we have. How on earth do you start such a task? You have to find the contracts, you have to analyze them, you have to decide the strategy…[W]e can put all of the contracts in front of you on your screen, showing you how they connect, and suggesting which ones needs to be re-negotiated first. The lawyer then needs to review it and decide if that is, in fact, the right way to do it. What we are doing is short circuiting the decision making process, and making it better. You don’t take out the human interaction — quite the opposite — what we do take out is the foundation work that comes before, in order to present it to the lawyer in a way that they can interpret it and make the analytical decisions.

Jeff Winn, Managing Director of UK-based ABS Winn Solicitors, explains how the firm’s brand reduces client search costs and provides clients with peace of mind — because Winn Solicitors is a multidisciplinary practice, its clients need to deal with only one service provider:

What clients like about us, and why they come to us, is that we [offer a] one-stop-shop… Our clients know us as the place to go if the accident was not your fault — as the place that will take care of everything.

Julia Hulme, Managing Director of UK-based ABS Omnia Strategy, a multidisciplinary firm, explains how the firm’s clients are comforted from the knowledge that they will get a consistent message from a variety of professionals and experts:

[As an] ABS … we can assemble the entire team that the client needs. Take high-profile litigation for example: Normally, a client needs to hire a law firm for the litigation itself, a government relations firm for government advocacy, a communications firm for reputational and communications issues, and a strategy firm to help with how to move forward. With us, it’s a one-stop shop. The client can pick up the phone and speak to just one person, who understands all of the different work streams, and from who they can be confident they will receive a consistent message.

Martin Langan, founder of UK-based Road Traffic Representation (RTR, operated by the ABS Legalmatters Limited), explains that RTR is different from other services because RTR provides specific information and advice, tailored to the individual situation of each user:

The difference between RTR and other sites is that RTR offers much more than just generic information — it offers a diagnosis of the user’s case and information specifically tailored for that user, and it offers that for free… For a great many people, the free advice is all they want or need. It provides them with reassurance as to where they stand and what might happen to them.

Keith Arrowsmith, Partner of UK-based ABS Counterculture Partnership, explains how the multidisciplinary nature of his firm enables him to reach clients who need legal services but would otherwise not seek them out:

There are clients who talk to me now because I am sitting with them wearing a Counterculture badge that wouldn’t dream of walking through the door of what they see as a law firm. There is something about the perception of being in this more comprehensive structure that allows them to be more comfortable in engaging with me. Some of it might be related to concerns about cost, but I think that the real reason is that because I am wearing a Counterculture badge, I can begin conversations that otherwise I never would have been able to have. Many people in the arts start with the premise that their world and the legal world are so far apart, a lawyer could never understand them. With Counterculture, I am able to communicate with clients in a much more open way because they don’t see us as a traditional law firm.

Randy Price, Co-Founder & Managing Partner of Washington, DC-based Tandem Legal Group, explains how his fellow Co-Founder and CEO Mike McDevitt reassures the firm’s clients for the very reason that he is not a lawyer:

It is because of Mike that Tandem has been able to grow so quickly. He brings a combination of assets to the firm. … he is able to reassure our young CEO clients. Young CEOs are much more inclined to not trust lawyers than they are to trust them; with Mike sitting at the table, there is an immediate trust factor. Mike helps new clients to become comfortable with us much faster than with another law firm.

Ursula Hogben, Practice Leader and General Counsel of Australia-based ILP LegalVision, explains that many of the businesses that are clients of her firm had never worked with a lawyer before:

For clients, their first point of contact with us is usually our website, because it provides a vast amount of information. Their next point of contact is usually with our client care team… We do not charge for initial consultations or for preparing quotes and we offer fixed fees where possible. Our quotes include consultations and rounds of amendments to help us take the time to explain the advice or documents to our client… [I]t’s about honesty and certainty…Many of our clients have never used a lawyer before. It’s not because there was no lawyer in their locality, or because they couldn’t have gone into a city to use a lawyer. It’s because for some reason they did not engage those lawyers, whereas they did engage us. So, even if those clients theoretically had access to business law services before, they had not accessed those services.

Anne Copley, Head of Legal of UK-based BPIF Legal, explains how the ABS uses specialized industry knowledge and a privileged relationship to provide enhanced services to its clients:

Our [SME] members come to us because of our expertise in the industry. They do not have to explain to us how the industry works, they do not have to explain the terminology, the production methods, the processes. We know what our members are and we can ask questions that other lawyers might not know to ask because we know frontwards and backwards what goes on in a printing company. In addition, the relationship we have with our members is different than the one a traditional law firm would have with them. For lack of a better word, the relationship is more intimate. Since they are members, they consider that they have some ownership of us, rather than coming to us cap in hand. And since we liaise with the other services in our organization, we have a much more rounded view of their businesses.

Viv Du-Feu, Director of Legal Services, BMA Law, explains how in providing legal services to the members of the British Medical Association, BMA Law is able to learn about the types of issues they are facing and communicate that to the association’s leaders, who can then take that into account in formulating the association’s positions and policies:

[O]ur “core” activities are done in-house and […] our “core” expertise is located in-house. This is because the work they do is on the matters that keep our members awake at night. By having the lawyers that do that work in-house, I can keep my finger on the political pulse — I can feed into the association’s committees and management the types of things that the members are worried about. It’s a conduit for information and a virtuous circle.

Chris Byron, Managing Director of UK-based ABS Aspire Law, explains how the firm offers its clients with spinal cord injuries both a reduced fee as well as the opportunity to support a charity that helps others with spinal cord injuries:

Aspire Law provides to clients a better choice when they seek representation for spinal cord injury. They can go with firms like Irwin Mitchell or Slater and Gordon, or they can go with Aspire Law. If they go with Aspire Law, they know that a large contribution will be made to a charity that supports others who are in their circumstances. They also know that they can retain all of their compensation, rather than just 75% or less.

Jenny Holloway, Associate Dean, Nottingham Law School and Nick Johnson, Pro Bono Director, Nottingham Law School Legal Advice Centre, explain how the law school’s newly created ABS can be used to create a research center focused on developing new models for the delivery of legal services:

We can become a research establishment, experimenting with different ways of providing legal services. Like other university departments that research developments in science, we can research and develop new methods of delivering legal services and access to justice that could be exploited commercially later on. Universities do that — they develop things, and the good ideas are used by the rest of society, and help people in that way. For example, what about a short module on how to conduct your own litigation, that is available to people for a fee, like car mechanics classes?

Some of the above examples of access to justice are those that are commonly predicted by advocates of alternative structures: business models that facilitate reduced and fixed price legal services and/or unbundling, technology that enables standardization and improved processes to handle large volumes of cases or contracts, branding that reduces the client’s search costs and increases their level of trust, multidisciplinary services that significantly ease the client experience notably because they do not need to assemble or coordinate different streams of work.[5] Other examples are not so commonly predicted (if, indeed, they are predicted at all), yet are no less significant: business models that facilitate free legal services, the use of non-legal (notably industry and business) knowledge and experience to increase client trust in and comfort with the firm and with legal services more generally, the collection of knowledge about the legal issues of individual clients in the same industry for use by a trade association to assist and defend the rights of all in that industry on a collective basis, a severely injured client’s reassurance and comfort in knowing that in selecting a certain legal services provider the client is not just receiving highly specialized advice but also benefitting an association that helps others with the same type of severe injury, the development of a legal research establishment for experimentation with different ways of providing legal services. Indeed, this second set of examples steps far outside the five metrics that Kalajdzic applied in her research of secondary literature, and these examples demonstrate that alternative structures can operate to increase access to justice in ways that were not predicted, that do not lend themselves easily to metrics or empirical research, and that seemingly are limited only by creativity and imagination.

Could any or even all of these examples be developed by traditional structures, without changing the regulations to allow for alternative structures? Surely some of them could be, at least theoretically. Of course, as already mentioned, the theory of what traditional structures could do and the reality of what they actually are doing (and appear likely to do in the future) are very different things. The examples in this chapter demonstrate that alternative structures open quite wide a very large spectrum of possibilities with respect to access to justice — possibilities that today we can easily predict, as well as ones that only the future and our own creativity will reveal. And the examples in this chapter demonstrate that, with alternative structures, these possibilities can become very real.

Notes

[1]See, for example, Sands McKinley, “The Access to Justice Myth,” Sands McKinley On the Future of Law, March 6, 2015, http://www.sandsmckinley.com/access-justice-myth/; and Kristian Bonn, “The Future Law Firm: Lawyers in the Minority,” Boon Law, December 3, 2014, http://bonnlaw.ca/2014/12/03/lawyers-minority-access-to-justice/.

[2] Kalajdzic, “Memo to Linda Langston,” 6.

[3] Ibid., 14.

[4] These are excerpts from the stories that can be accessed here.

[5] Again, a number of persons have made these predictions, as detailed in the notes to the Introduction to this book.

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