When practising as a solicitor, I remember well the time spent emailing, calling and even faxing the court or other previous legal representatives searching for new clients’ case papers. Sometimes a subject access request was the best route, but that came at a cost and would take months. All that work before I was even able to do something actually useful for my client.
The difficulties faced by lawyers and litigants accessing information pertaining to their own case is a structural problem that delays hearings, inflates costs and stifles innovation. It puts established legal practices at an advantage and burdens new firms who are forced to shoulder the costs of retrieving papers before they are able to advise a new client.
It was problems of this nature that led the Competition and Market Authority (CMA) to conclude in 2016 that competition in legal services for individual consumers and small businesses 'is not working well' and call for greater transparency amongst providers. It is not clear what progress, if any has been made.
The financial sector used to be subject to the same sorts of criticisms. Following a market investigation into retail banking 2016, the CMA found that 'older and larger banks do not have to compete hard enough for customers' business, while newer banks find it difficult to grow.' Under a programme of work called the Open Banking Movement that commenced in 2016, personal customers or small businesses can now give permission for their private information to be transferred to another financial service provider within a matter of hours via a standard interface. The movement has triggered a huge growth in new providers and led to established banks providing more tailored services, information and advice.
While there are obvious differences between the financial services and legal services, the open banking movement provides us with an interesting framework and technical model to consider.
As well as improving how confidential case information is transferred between lawyers, litigants and the courts, the same framework could help tackle another, more pernicious problem.
If we think of case files not just as papers containing private information about a legal matter, but as important bits of justice data that anonymised and analysed en-masse would provide unprecedented insight into what is happening in our courts and tribunals. It would allow researchers and policy makers to measure the impact of proposed legislative changes using hard data.
For example, what if we could assess outcomes for parents who seek access to their children without legal representation, compared with those who are able to pay for a lawyer? Or if we could understand at what stage new businesses first look to access legal advice? Or, on average, how far someone has to travel to get advice on a social housing matter? Powerful, potentially paradigm-shifting information, which remains at present out of reach: fragmented and siloed.
As occurred in the open banking movement, we need to come together as a community to develop a set of common data standards. Key stakeholders, the MoJ, HMCTS, the judiciary and developers of case management systems, should look at how (anonymised) meta data can be gleaned from the legal sector and put to use.
The development of a dataset that pools information from our institutional and private legal providers and eases transfer of confidential data between relevant bodies is technically possible, particularly now that the open banking movement has paved the way.
It's time to start exploring our own open law movement: to create a level playing field for new legal service providers and to new perspectives on the cold, hard reality of legal practice today.
Sophie Walker is chief executive of Just: Access, a social enterprise that harnesses technology to overcome barriers to accessing justice