Legal information behavior

IT and the Access to Justice Crisis

Applications, comparative, Dissertations, free access to law, knowledge management, Legal information behavior, Legal information systems for pro se litigants, Legal information systems for self represented litigant, Legal knowledge management, Nonlawyers' legal information behavior, Nonlawyers' legal information needs, Pro se litigants, Public access to legal information, Self represented litigants 2 Responses »

Aug 012010

This post explores ways in which information technology (IT) can enhance access to justice. What does it mean when we talk about “the access to justice crisis,” and how can information technology help to resolve it? The discussion that follows is based on my 2009 book, Technology for Justice: How Information Technology Can Support Judicial Reform, particularly Part 4, on the role of information and IT in access to justice.

The normative framework for access to justice

International conventions guarantee access to a court. Everyone is entitled to a fair and public hearing by an independent tribunal in the determination of their civil rights and obligations or of any criminal charge against him or her, according to The International Covenant on Civil and Political Rights (article 14) and regional conventions like the The European Convention on Human Rights (article 6). In practice, the normative framework for access to justice does not provide us with clearly defined concepts.

The major barriers to access to justice identified in the scholarly literature are:

Distance, which can be a factor impeding access to courts. In many countries, courts are concentrated in the main urban centers or in the capital.
Language barriers, which are present when justice seekers use a language that is different from the language of the courts.
Physical challenges, like impaired sight and hearing and motor and cognitive impairments; these as a barrier to access are an emerging topic in the debate on technology support in courts.

These first three factors are all relatively straightforward and do not strike at the heart of the legal process.

Cost, for instance lawyers’ fees, court fees and other components of the price of access to justice, in many forms, has been identified as a factor affecting access to courts. However, cost is extremely hard to research and subject to a lot of ramifications. Because of this complexity, cost will not be discussed directly in this post.
Lack of information and knowledge, lack of familiarity with the court process, the complexity of legal and administrative systems, and lack of access to legal information are commonly identified factors (Cotterrell, The Sociology of Law p. 251; Hammergren, Envisioning Reform: Improving Judicial Performance in Latin America, p. 136). They are related because they all refer to the availability of information. They are the starting point for our discussion.

Potentially, information on the Internet can provide some form of solution for these problems, in two ways. First, access to information can support fairer administration of justice by equipping people to respond appropriately when confronted with problems with a potentially legal solution. Access to information can compensate, to some extent, for the disadvantage one-shotters experience in litigation, thereby increasing their chance of obtaining a fair decision. Second, the Internet provides a channel for legal information services, although experience with such online service provision is limited in most judiciaries. The discussion here will therefore focus on access to legal information and knowledge. Lack of information and knowledge as a barrier to access to justice is the focus for discussion in the first few paragraphs. The first step is to identify the barriers.

Knowledge and information barriers to access to justice

What are the information barriers individuals experience when they encounter problems with a potentially legal solution? We need empirical evidence to find an answer to this question, and fortunately some excellent research has been done, which may help us. In the U.K., Hazel Genn led a team that researched what people do and think about going to law. Their 1999 report is called Paths to Justice. A similar exercise led by Ben van Velthoven and Marijke ter Voert in The Netherlands, called Geschilbeslechtingsdelta 2003 (Dispute Resolution Delta 2003), was published in 2004. Although there are some marked differences between them, both studies looked at how people deal with “justiciable problems”: problems that are experienced as serious and have a potentially legal solution. Analysis of empirical evidence of people and their justiciable problems in England and Wales and The Netherlands produced the following findings with regard to these barriers:

Inaction in the face of a justiciable problem because of lack of information and knowledge occurs in a small percentage of cases.
Unavailability of advice negatively affects dispute resolution outcomes. It lowers the resolution rate. Cases in which people attempted to find advice were resolved with a higher rate of success than those of the self-helpers.
Respecting the inability to find advice: If people go looking for advice, the barriers to finding it have more to do with their own competencies, such as confidence, emotional fortitude, and literacy skills, than with the availability of the advice. In the United Kingdom, about 20 percent of the population is so poor at reading and writing that they cannot cope with the demands of modern life, according to data from the National Literacy Trust. In The Netherlands, the percentage of similarly low literacy is estimated at about 10 percent, according to data from the Stichting Lezen en Schrijven, the Reading and Writing Foundation.
Respecting incompetence in implementing the information received: Different competence levels will affect what can be done with information and advice. Competencies in implementing the information received include, for example, skills such as working out what the problem is, what result is wanted, and how to find help; simple case-recording skills; managing correspondence; confidence and assertiveness; and negotiating skills, according to research reported by Advicenow in 2005. Some people do not want to be empowered by having information available. They want assistance, or even someone to take over dealing with their problem. People with low levels of competence in terms of education, income, confidence, verbal skill, literacy skill, or emotional fortitude are likely to need some help in resolving justiciable problems.
Ignorance about legal rights exists across most social groups. Genn notes that people generally are not educated about their legal rights (Genn p. 102).
Respecting lack of confidence in the legal system and the courts and negative feelings about the justice system, Genn observes that people are unwilling voluntarily to become involved with the courts. People associate courts with criminal justice. People’s image of the courts is formed by media stories about high profile criminal cases (Genn p. 247). This issue is related to the public image of courts, as well as to the wider role of courts as setters of norms.

Information needs for resolving justiciable problems

After identifying knowledge and information barriers, the next step is to uncover needs for information and knowledge related to access to justice. Those needs are most strongly related to the type of problem people experience. The most frequently occurring justiciable problems are simple, easy-to-solve problems, mostly those concerning goods and services. People themselves resolve such problems, occasionally with advice from specialist organizations like the consumers’ unions (e.g., in the U.S., the National Consumers League). For more important, more complex problems, people tend to seek expert help more frequently. The most difficult to resolve are problems involving a longer-term relationship, such as labor or family problems. Any of the problems discussed in this section may lead to a court procedure. However, the problems that are the toughest to resolve are also the ones that most frequently come to court.

The first need people experience is for information on how to solve their problem. In The Netherlands, the primary sources for this type of information are specialized organizations, with legal advice providers in second place. In England and Wales, solicitors are the first port of call, followed by the Citizens’ Advice Bureaux. In both countries, the police are a significant source of information on justiciable problems. This is especially remarkable because the problems researched were not criminal justice issues.

If people require legal information, they primarily need straightforward information about rules and regulations. Next, they look for information about ways to settle and handle disputes once they arise. Information about court procedures is a separate category that becomes relevant only in the event people need to go to court.

Respecting taking their case to court: People need information on how to resolve problems, on rights and duties, and on taking a case to court. The justiciable problems that normally come to court tend to be difficult for people themselves to resolve. These problems are also experienced as serious. Many of them involve long-term relationships: family, employment, neighbors. Therefore, people will tend to go looking for advice. Some of them may need assistance. Most people seek and receive some kind of advice before they come to court.

In summary, information needs in this context are mostly problem-specific. Most problems are resolved by people themselves, sometimes with the help of information, or help in the form of advice or assistance. The help is provided by many different organizations, but mostly by specialized organizations or providers of legal aid and alternative dispute resolution (ADR).

Different dispute resolution cultures

There are, besides these general trends, interesting differences between England and Wales and The Netherlands. The results with regard to dispute outcome, for instance, show the following:

The Netherlands has fewer unresolved disputes, more disputes resolved by agreement, and the rate of resolution by adjudication is half that of England and Wales. It looks as if there is more capacity for resolving justiciable problems in Dutch society than there is in society in England and Wales. Apart from the legacy of the justice system where there is a propensity to settle differences that Voltaire described in one of his letters, many factors may be at work in The Netherlands to produce a higher level of problem-solving capacity. One probable factor is the level of education and the related competence levels for dealing with problems and the legal framework. The functional illiteracy rate is only half that in the United Kingdom. Another factor may be a propensity to settle differences by reducing the complexity of problems through policies and routines.

Diversion or access, empowerment or court improvement?

The debate respecting whether diversion or court improvement should come first as an objective of legal policy, has been going on for some time. These are the options under discussion:

Preventing problems and disputes from arising;
Equipping as many members of the public as possible to solve problems when they do arise without needing recourse to legal action;
Diverting cases away from the courts into private dispute resolution forums; and
Enhancing access to legal forums for the resolution of disputes.

Genn argues that it is not an answer to say that diversion and access should be the twin objectives of policy, because they logically conflict. I would like to contribute some observations that could provide a way out of this apparent dilemma.

First, user statistics from the introduction of the online claim service Money Claim Online and the case study in Chapter 2.3 of my book suggest that changes in procedure facilitating access do not in themselves lead to higher caseloads. Changes observed in the caseloads are attributable to market forces in both instances.

The other observation is that Paths to Justice and the Dispute Resolution Delta clearly found that self-help is experienced as more satisfying and less stressful than legal proceedings. Moreover, resolutions are to a large degree problem specific. A way out of the dilemma could be that specialist organizations that make it their business to provide specific information, advice, and assistance, should enhance their role. There is an empirical basis for this way out in the research reported in Paths to Justice and the Dispute Resolution Delta. Although goods and services problems are largely resolved through self-help, out-of-court settlement, or ADR, nonetheless a fair number of them still come to court. Devising ways to assist individuals in informal problem solving and diverting them to other dispute resolution mechanisms can keep still more of these problems out of court. Even in matters for which a court decision is compulsory, like divorce, mediation mechanisms can sort out differences before the case is filed. Clearly, information on the Internet will provide an entry point for all of these dispute resolution services. Online information can thus help to keep as many problems out of court as possible. All this should not keep us from making going to court when necessary less stressful. Information can help reduce people’s stress, even as it improves their chances of achieving justice. The Internet can be a vehicle for this kind of information service, too.

Taking up this point, the next section focuses on courts and how information technology, particularly the Internet, can support them in their role of information providers to improve access to justice. Two strains concerning the role of information in access to justice run through this theme: information to keep disputes out of court, and information on taking disputes to court.

Information to keep disputes out of court

An almost implicit understanding in the research literature is that parties with information on the “rules of thumb” of how courts deal with types of disputes will settle their differences more easily and keep them out of court. Such information supports settlement in the shadow of the law. Most of this type of settlement will be done with the support of legal or specialist organizations. In the pre-litigation stage, information about the approaches judges and courts generally take to specific types of problems can help the informal resolution of those problems. This will require that information about the way courts deal with those types of problems becomes available. Some of the ways in which courts deal with specific issues are laid down in policies. Moreover, judicial decision making is sometimes assisted by decision support systems reflecting policies. In order to help out-of-court settlement, policies and decision support systems need to be available publicly.

Information on taking disputes to court

If a dispute needs to come to court, information can reduce the disadvantage one-shotters have in dealing with the court and with legal issues. This disadvantage of the one-shotters — those who come to court only occasionally — over against the repeat players who use courts as a matter of business, was enunciated by Marc Galanter in his classic 1974 article, Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change. Access to information for individual, self-represented litigants increases their chances of obtaining just and fair decisions. Litigants need information on how to take their case to court. This information needs to be legally correct, as well as effective. By “effective,” I mean that the general public can understand the information, and that someone after reading it will (1) know what to do next, and (2) be confident that this action will yield the desired result. In a case study, I have rated several court-related Web sites in the U.K. and in The Netherlands on those points, and found most of them wanting. My test was done in 2008, and most of the sites have since changed or been replaced. And although the U.K. Court Service leaflet D 184 on how to get a divorce got the best score, my favorite Web site is Advicenow.

Such an information service requires a proactive, demand-oriented attitude from courts and judiciaries. Multi-channel information services, such as a letter from the court with reference to information on the court’s or judiciary’s Web site, can meet people’s information needs.

Beyond information push

Other forms of IT, increasingly interactive, can provide access to court. [Editor’s note: Document assembly systems for self-represented litigants are a notable example.] Not all of them require full-scale implementation of electronic case management and electronic files. In order to be effective for everyone, the information services discussed will require human help backup. There are also technologies to provide this, but they may still not be sufficient for everyone. The information services discussed here, in order to be effective, will need to be provided by a central agency for the entire legal system. A final finding is the importance of public trust in the courts in order for individuals to achieve access to justice. Judiciaries can actively contribute to improved access to justice in this field by ensuring that correct information about their processes is furnished to the public.

In summary, access to justice can be effectively improved with IT services. Such services can help to ameliorate the access-to-justice crisis by keeping disputes out of court. The information services identified here should serve the purpose of getting justice done. They should not keep people from getting the justice they deserve by preventing them from taking a justified concern to court. If people need to go to court, information services can help them deal with the courts more effectively.

[Editor’s Note: A very useful list of resources about applying technology to access to justice appears at the technola blog.]

Dory Reiling, mag. iur. Ph.D., is a judge in the first instance court in Amsterdam, The Netherlands. She was the first information manager for The Netherlands’ Judiciary, and a senior judicial reform expert at The World Bank. She is currently on the editorial board of The Hague Journal on the Rule of Law and on the Board of Governors of The Netherlands’ Judiciary’s Web site Rechtspraak.nl. She has a Weblog in Dutch, and an occasional Weblog in English, and can be followed on Twitter at @doryontour.

VoxPopuLII is edited by Judith Pratt. Editor in chief is Robert Richards.

Collaboration and Open Access to Law

Legal descriptive metadata, Legal information behavior, Legal semantic web, Peer production 9 Responses »

Mar 142010

One could wonder what Jeremy Bentham would have thought of the 4 billion people who are currently excluded from the rule of law. That number comes from a 2008 report of the United-Nations Development Program’s Commission on Legal Empowerment of the Poor (UNDP-CLEP). The British philosopher’s vision of “every man his own lawyer” certainly finds an echo in the UNDP-CLEP assertion that:

Empowering the poor through improved dissemination of legal information and formation of peer groups (self-help) are first-step strategies towards justice. Poor people may not receive the protection or opportunities to which they are legally entitled because they do not know the law or do not know how to go about securing the assistance of someone who can provide the necessary help. Modern information and communication technologies are particularly well suited to support interventions geared towards strengthening information-sharing groups, teaching the poor about their rights, and encouraging non-formal legal education. (p. 64)

Without actually saying it, the UNDP-CLEP seems to be describing what some call Web 2.0 or the participative web. In fact, these represent a series of tools and technologies, such as blogs, wikis, social networks, and content hosting and sharing sites, which allow many individuals to collaborate. Tools and communities are precisely what are required for a good old-fashioned barn raising–except, of course, for a green pasture on which to erect it !

This is where the global open access to law movement comes in. My goal, humbly submitted to the VoxPopuLII community for review, is to attempt to model how Web 2.0 and collaboration could be used to bring forth a greater understanding of the law in society, using the Canadian Legal Information Institute (CanLII) as a model and working with Daniel Poulin of the Université de Montréal’s LexUM. The full version of my findings can be found in my master’s thesis (en français) as well as in a paper submitted at the Law via the Internet Conference in November 2009 (my slides are hosted here).

I first set out to describe and define both Web 2.0 and collaboration. After a review of various theories and tools, I offer the following visual summary, which I call the Collaborative Document Management Framework (CDMF):

In this model, I posit that Agents — people like you and me as well as institutions or information services — and documents — such as court cases, newspaper articles and books — interact with each other in four generic relationships. Agents engage in conversations or exchanges, documents link or refer to each other, while agents consume or read documents, and documents are written by agents.

Manifestations of these relationships abound. For example, people exchange views via the comment or trackback function of blogs or through open letters in newspapers. A journalist covering a recent Supreme Court ruling is writing a document (her article) while linking to the ruling (although implicitly). Individuals accessing a statute in a public library are consuming the document.

Collaborative digital technologies offer the potential to explicitly keep track of all these interactions. In turn, these data could yield a great deal of insight on which bits of legal information are useful to whom. My goal was to explore how this could come about in a conceptual sense, hopefully offering some guidance by pointing out key success factors from a variety of examples. [Please note that this is in fact a theoretical exercise from my own personal point of view and does not reflect the position of the Canadian Legal Information Institute.]

Here are some ideas that could foster a vision of collaboration within the context of open access to law, using my own blogging experience as an example. I have always entertained an unhealthy fascination with the interaction of law and information. I revel in the paradoxes that arise from the tension between libel and freedom of expression, privacy and freedom of the press, government secrecy and the right of access to information, economic imperatives and fair or private copying …. This means that my personal consumption habits of legal information usually revolve around these topics, particularly discussing court cases and pointing out issues in the law. I currently use a simple blog for this function (CultureLibre.ca), and I know there are many of us out there, be they practicing lawyers, academics, laypeople or others.

Counting beans: developing a citation tool for legal documents

When I want to cite a paragraph of a court ruling, I simply copy-paste the snippet of text into my blog. This is a bit unfortunate as there is a lost opportunity. Imagine a system by which a user highlights a bit of text on an open access legal website, clicks on a button and is offered a bit of code to place in her blog (instead of the direct copy-pasting).

This bit of code, akin to what allows users repost YouTube videos, could create a box on the blog where the legal text is shown. If the statute were to be amended or the court decision reversed on appeal, the box could display a code (say, a red flag) alerting readers of the change. On the other side, the open access legal website would be able to keep track of every time this blog is read, providing a precise metric of use, useful for relevancy statistics.

Another powerful use of this mechanism would be to offer users of the open access legal website the links to the various blog postings when they hover over the quote in the original legal text. A simple voting system could offer a way for the community to regulate itself. Similarly, users could turn this feature on or off in their personal settings.

Let the data in: building better bibliographic tools

On my blog, I keep track of relevant newspaper or research articles as well as books or government reports. Compiling all this bibliographic data is a painstaking but rewarding process, as it saves me much time in the long run. If I could add this information via a web form into an open access legal information website, this process could be streamlined. After a while, one could find that some documents are already within the system, which would save time. As well, a diligent operator of an open access legal website could obtain bibliographic data in bulk either from vendors or from library catalogues.

In turn, users could be offered tools to link bibliographic data with legal documents, offering a richer browsing experience. Imagine having a list of recommended reading available directly from a specific statute or court ruling as described in the previous point, as certain commercial vendors are already doing. In fact, the real power would lie in the ability to link to a specific article in a law or a specific (short) passage in a court ruling. Creating anchors on the fly and linking back and forth would yield immense value.

People are suckers for popularity

The previous examples imply that one can register on such a website. This allows for a much richer browsing experience through personalized settings and interface customization. Most users are now accustomed to this and even expect it from contemporary websites, such as existing social networking websites. This provides the added benefit of determining the relative value of a single user’s contribution, based on how others vote.

Slashdot offers a similar mechanism, where some users are also reviewers and may agree or disagree with a comment. In fact, some legal social networking platforms already allow for this feature. What would be needed is a mechanism to link to snippets of legal text, perhaps as an add-on to legal social networking sites…

Its all about granular information

Computers are better at dealing with granular information, such as a date, or a piece of code. Textual information is better left for humans. That is why operators of open access legal websites should focus on identifying ways to trick users into giving them bits of data, not text, unless it is from a highly regarded member of the community or a trusted source (such as a judge). A simple agree/disagree vote is much better than a text box where one could write their objections. If people feel the urge to write, they should start their own blogs.

Insofar as the open access legal information website is concerned, there are only a few elements of value in this scenario — for example, when the blogger quotes a court case or statute. It would be hard to evaluate what is said without the intervention of a human operator. That is why the feedback mechanism between users (the agree/disagree button) is a useful way to allow for a very minimal amount of discussion while still being able to derive value from this process.

Parting words

Many of you are probably thinking of a flipside to what I propose. What happens if the information provided on blog-posts is wrong? What is the legal risk of blogging? What of legal advice from individuals who are not members of the Bar?

I have to admit that I am very concerned with these issues. I am tempted to say that an information-literate individual will apply due diligence to any information that is available — online or otherwise. As we all know, legal battles usually oppose two very crystallized visions of a rule or norm. One can find two sides to a story — or more. These debates add value to civil society, but one has to be aware of them. And that is not even getting into distinguishing strategies in common law!

The position I think most defensible in my proposed way forward is the following. In the practice of law, lawyers hold a monopoly in legal procedure as well as in giving legal advice within an individual case. In online communities, however, I would certainly hope that we, laypeople and jurists alike, may still discuss the law in general terms. There is a fine line to walk, but it is important for the legal community to recognize that the more people talk about the law, the more our society benefits from the Rule of Law, as Jeremy Bentham asserted.

As a side note, I would even wager that the need for legal services in a society is directly proportional to the number of legal topics discussed by laypeople in that society. But perhaps this is the subject of yet another post …

Olivier Charbonneau on www.culturelibre.ca In any case, I hope this paper will provide the opportunity to discuss some of the ideas that could bring digital collaboration to the open access to law movement. I invite you to also download my full paper for additional insight on this question. Also, I will be presenting some of these issues at the Legal IT conference in Montréal on April 26-27 2010. Perhaps this could be an opportunity to engage in a conversation about this issue?

Thanking you for your interest in my work,
Olivier Charbonneau
Associate Librarian, Concordia University (Montreal, Canada)
Doctoral candidate, Faculty of Law, Université de Montréal
www.culturelibre.ca
The author would like to thank his employer for supporting him in his research.

VoxPopuLII is edited by Judith Pratt. Editor in Chief is Rob Richards.

Surveying is Hard

Law librarians, law library assessment, Legal information behavior 4 Responses »

Nov 092009

Where the culture of assessment meets actual learning about users.

These days, anyone with a pulse can sign up for a free Surveymonkey account, ask users a set of questions and call it a survey. The software will tally the results and create attractive charts to send upstairs, reporting on anything you want to know about your users. The technology of running surveys is easy, certainly, but thinking about what the survey should accomplish and ensuring that it meets your needs is not. Finding accurate measures — of the effectiveness of instructional programs, the library’s overall service quality, or efficiency, or of how well we’re serving the law school’s mission — is still something that is very, very hard. But librarians like to know that programs are effective, and Deans, ranking bodies, and prospective students all want to be able to compare libraries, so the draw of survey tools is strong. The logistics are easy, so where are the problems with assessment?

Between user surveys and various external questionnaires, we gather a lot of data about law library stacks law libraries. Do they provide us with satisfactory methods of evaluating the quality of our libraries? Do they offer satisfactory methods for comparing and ranking libraries? The data we gather is rooted in an old model of the law library where collections could be measured in volumes, and that number was accepted as the basis for comparing library collections. We’ve now rejected that method of assessment, but struggle nevertheless for a more suitable yardstick. The culture of assessment from the broader library community has also entered law librarianship, bringing standardized service quality assessment tools. But despite these tools, and a lot of work on finding the right measurement of library quality, are we actually moving forward, or is some of this work holding us back from improvement? There are two types of measurement widely used to evaluate law libraries: assessments and surveys, which tend to be inward-looking, and the use of data such as budget figures and square footage, which can be used to compare and rank libraries. These are compared below, followed by an introduction to qualitative techniques for studying libraries and users.

(Self)Assessment

There are many tools available for conducting surveys of users, but the tool most familiar to law librarians is probably LibQUAL+®. Distributed as a package by ARL, LibQUAL+® is a “suite of services that libraries use to solicit, track, understand, and act upon users’ opinions of service quality.” The instrument itself is well-vetted, making it possible for libraries to run it without any pre-testing.

The goal is straightforward: to help librarians assess the quality of library services by asking patrons what they think. So, in “22 items and a box,” users can report on whether the library is doing things they expect, and whether the librarians are helpful. LibQUAL+® aligns with the popular “culture of assessment” in libraries, helping administrators to support regular assessment of the quality of their services. Though LibQUAL+® can help libraries assess user satisfaction with what they’re currently doing, it’s important to note that the survey results don’t tell a library what they’re not doing (and/or should be doing). It doesn’t identify gaps in service, or capture opinions on the library’s relevance to users’ work. And as others have noted, such surveys focus entirely on patron satisfaction, which is contextual and constantly shifting. Users with low expectations will be satisfied under very different conditions that users with higher expectations, and the standard instrument can’t fully account for that.

Ranking Statistics

The more visible or external data gathering for law libraries occurs annually, when libraries answer questionnaires from their accrediting bodies. The focus of these instruments is on numbers: quantitative data that can be used to rate and rank law libraries. The ABA’s annual questionnaire counts both space and money. Site visits every seven years add detail and richness to the picture of the institution and provide additional criteria for assessment against the ABA’s standards, but the annually reported data is primarily quantitative. The ABA also asks which methods libraries use “to survey student and faculty satisfaction of library services”, but they don’t gather the results of those surveys.

The ALL-SIS Statistics Committee has been working on developing better measures for the quality of libraries, leading discussions on the AALLNet list (requires login) and inviting input from the wider law librarian community, but this is difficult work, and so far few Big Ideas have emerged. One proposal suggested reporting, via the ALL-SIS supplemental form, responses from students, faculty, and staff regarding how the library’s services, collections and databases contribute to scholarship and teaching/learning, and how the library’s space contributes to their work. This is promising, but it would require more work to build rich qualitative data.

Another major external data gathering initiative is coordinated by the ARL itself, which collects data on law libraries as part of their general data collection for ARL-member (University) libraries. ARL statistics are similarly heavy on numbers, though: their questionnaire counts volumes (dropped just this year from the ABA questionnaire) and current serials, as well as money spent.

Surveys ≠ Innovation

When assessing the quality of libraries, two options for measurement dominate: user satisfaction, and collection size (using dollars spent, volumes, space allocated, or a combination of those). Both present problems: the former is simply insufficient as the sole measure of library quality, and is not useful for comparing libraries, and the latter ignores fundamental differences between the collection development and access issues of different libraries, making the supposedly comparable figures nearly meaningless. A library that is part of a larger university campus will likely have a long list of resources paid for by the main library, and a stand-alone law school won’t. Trying to use the budget figures for these two libraries to compare the size of the collection or the quality of the library would be like comparing apples and apple-shaped things. There’s also something limiting about rating libraries primarily based on their size; is the size of the collection, or the money spent on the collection, the strongest indicator of quality? The Yankees don’t win the World Series every year, after all, despite monetary advantages.

The field of qualitative research (a.k.a. naturalistic or ethnographic research) could offer some hope. The techniques of naturalistic inquiry have deep roots in the social sciences, but have not yet gained a stronghold in library and information science. The use of naturalistic techniques could be particularly useful for understanding the diverse community of law library users. While not necessarily applicable as a means for rating or ranking libraries, the techniques could lead to a greater understanding of users of law libraries and their needs, and help libraries to develop measures that directly address the match between library and users’ needs.

How many of us have learned things about a library simply by having lunch with students, or chatting with faculty at a college event, or visiting another library? Participants in ABA Site Visits, for instance, get to know an institution in a way that numbers and reports can’t convey. Naturalistic techniques formalize the process of getting to know users, their culture and work, and the way that they use the library. Qualitative research could help librarians to see past habits and assumptions, teaching us about what our users do and what they need. Could those discoveries also shape our definition of service quality, and lead to better measures of quality?

In 2007, librarians at the University of Rochester River Campus conducted an ethnographic study with the help of their resident Lead Anthropologist (!). (The Danes did something similar a few years ago, coordinated through DEFF , the Danish libraries’ group.) The Rochester researchers asked — what do students really do when they write papers? The librarians had set goals to do more, reach more students, and better support the University’s educational mission. Through a variety of techniques, including short surveys, photo diaries, and charrette-style workshops, the librarians learned a great deal about how students work, how their work is integrated into their other life activities, and how students view the library. Some results led to immediate pilot programs: a late-night librarian program during crunch times, for instance. But equally important to the researchers was understanding the students’ perspective on space design and layout in preparation for a reading room renovation.

Concerns about how libraries will manage the increased responsibilities that may accrue from such studies are premature. Our service planning should take into account the priorities of our users. Perhaps some longstanding library services just aren’t that important to our users, after all. Carl Yirka recently challenged librarians on the assumption that everything we currently do is still necessary — and so far, few have risen to the challenge. Some of the things that librarians place value on are not ours to value; our patrons decide whether Saturday reference, instructional sessions on using the wireless internet, and routing of print journals are valuable services. Many services provided by librarians are valuable because they’re part of our responsibility as professionals: to select high-quality information, to organize and maintain it, and to help users find what they need. But the specific ways we do that may always be shifting. Having the Federal Reporter in your on-site print collection is not, in and of itself, a valuable thing, or an indicator of the strength of your collection.

“Measuring more is easy; measuring better is hard.”
Charles Handy (from Joseph R. Matthews, Strategic Planning and Management for Library Managers (2005))

Thinking is Hard

upside down toddler

Where does this leave us? The possibilities for survey research may be great, and the tools facile, but the discussion is still very difficult. At the ALL-SIS-sponsored “Academic Law Library of 2015” workshop this past July, one small group addressed the question of what users would miss if the library didn’t do what we currently do. If functions like purchasing and management of space were absorbed by other units on campus or in the college, what would be lost? Despite the experience of the group, it was a very challenging question. There were a few concrete ideas that the group could agree were unique values contributed by law librarians, including the following:

Assessment of the integrity of legal information
Evaluation of technologies and resources
Maintaining an eye on the big picture/long term life of information

The exercise was troubling, particularly in light of statements throughout the day by the many attendees who insisted on the necessity of existing services, while unable to articulate the unique value of librarians and libraries to the institution. The Yirka question (and follow-up) was a suggestion to release some tasks in order to absorb new ones, but we ought to be open to the possibility that we need a shift in the kind of services we provide, in addition to balancing the workload. As a professional community, we’re still short on wild fantasies of the library of the future, and our users may be more than happy to help supply some of their own.

Doing Qualitative work

Could good qualitative research move the ball forward? Though good research is time-consuming, it could help us to answer fundamental questions about how patrons use legal information services, how they use the library, and why they do or don’t use the library for their work. Qualitative research could also explore patron expectations in greater detail than quantitative studies like LibQual+, following up on how the library compares to other physical spaces and other sources of legal information that patrons use.

It’s important that librarians tap into resources on campus to support survey research, though, whether qualitative or quantitative. When possible, librarians should use previously vetted instruments, pretested for validity and reliability. This may be a great opportunity for AALL, working with researchers in library and information science to build a survey instrument that could be used by academic law libraries.

Stephanie Davidson is Head of Public Services at the University of Illinois in Champaign. Her research addresses public services in the academic law library, and understanding patron needs and expectations. She is currently preparing a qualitative study of the information behavior of legal scholars.

VoxPopuLII is edited by Judith Pratt

If the mountain will not come to the prophet, the prophet will go to the mountain

European Union, Legal informatics, Legal information behavior, liis 7 Responses »

Sep 032009

Within the field of legal informatics, discussions often focus on the technical and methodological questions of access to legal information. The topics can range from classification of legal documents to conceptual retrieval methods and Automatic Detection of Argumentation in Legal Cases. Researchers and businesses try to increase both precision and recall in order to improve search results for lawyers, while public administrations open up the process of legislating for the benefit of democracy and openness. Where are, however, the benefits for laypersons not familiar with retrieving legal information? Does clustering of legal documents, for example, yield a legal text any more understandable for a citizen?

To answer these questions, I would like to go back to the beginning, the purpose of law. Unfortunately for us lawyers, law is not created for us, but to serve as the oil that keeps society running smoothly. One can imagine two scenarios to apply the oil: If the motor has not been taken care of sufficiently, some extra greasy oil might be necessary to get it running again (i.e. if all amicable solutions are exhausted, some sort of dispute resolution is required), this would be the retroactive approach. The other possible application is to add enough oil during driving, so the engine will continue running smoothly without any additional boost, in other words trying to avoid disputes, this would be the proactive line of thinking.

How can proactive law work for the citizens? The basic assumption would be that in order to avoid disputes, one has to be aware of possible legal risks and how to prevent them. In line with the position of the European Union, we can further assume that the assessment and evaluation of risks requires relevant information about the legal facts at hand. It is only possible for a citizen to reach a decision regarding, for example, social benefits or certain rights as an employee, if she or he is aware of the various legal rights and obligations as well as possible legal outcomes.

Having stipulated that legal information is the core requirement for being able to exercise one’s rights as a citizen, the next questions would include which type of information is actually necessary, who should be responsible to communicating it and how it should be provided. These questions I would like to discuss below. That is, we will talk about why, what, who and how.

Why?

Before we move on to the main theme at hand on access to legal information, I would like to highlight a few more things about the why. As already mentioned, and as many legal philosophers have noted, law is the clockwork that makes society click. The principle Ignorantia juris neminem excusat (Ignorance of the law is no excuse) is commonly accepted as one of the foundations of modern civilization. But how would we define ignorance in today’s world? What if a citizen has troubles finding the necessary information despite endless efforts? What if she or he, after finding the relevant information, is not able to understand it? Does this mean she or he is still ignorant?

Public access to legal information is also a question of democracy, because citizens’ insight into politics, governmental work and the lawmaking process is a necessary prerequisite for public trust in the legislative body.

“In shifting from infrastructure to integration and then to transformation, a more holistic framework of connected governance is required. Such a framework recognizes the networking presence of e-government as both an internal driver of transformation within the public sector and an external driver of societal learning and collective adaptation for the jurisdiction as a whole.” (UN e-Government Survey 2008)

In this spirit, governments should consider the management of knowledge an increasing importance. “The essence of knowledge management (KM) is to provide strategies to get the right knowledge to the right people at the right time and in the right format.” (UN e-Government Survey 2008) What, then, is the right knowledge?

What?

The term legal information is as obvious as the word law. It is both apparent and imprecise, and yet we use it rather often. Several scholars have tried to define legal information and legal knowledge, inter alia, Peter Wahlgren in 1992, Erich Schweighofer in 1999, and Robert Richards in 2009.

If we consider the term from a layperson’s perspective, one could define it as the data, the facts and figures, that are necessary to solve an issue–one that cannot be handled amicably–between two persons (either legal or physical). In order for a layperson to be able to utilize legal information she or he has to be able to access, read, understand and apply the information.

The accessing element is one of the tasks that legal information institutes fulfill so elegantly. The term “reading” is here to be understood as information that can be grasped either with one’s eyes or ears. The complexity begins when it comes to understanding and applying the information. A layperson might have difficulties understanding and applying the Act on income tax even though the law is accessible and readable.

Is this information then still legal information if we assume that the word “information” means that somebody can receive certain signs and data and use this data meaningful in order to increase her or his knowledge? “Knowledge and information […] influence in a reciprocal way. Information modifies knowledge and knowledge guides potential use of information.” (Schweighofer)

If a layperson does not understand the information provided by official sources, she or he might refer to other information sources, for example by utilizing a Google search. In this case, the question arises how reliable the retrieved information is, however comprehensible. A high ranking in Google search does not automatically relate to high quality of the information even though this might be a common misconception, especially for laypersons not trained in source criticism. Here the importance of providing citizens with some basic and comprehensible information becomes apparent.

This comprehensible information might include more than plain text-based legislation and court decisions. Of interest for the layperson (both in business-consumer as well as government-citizen situations) can furthermore be, inter alia,

additional requirements according to terms and conditions or specific procedural rules in public administrations
possible legal outcomes and necessary facts that lead to them
estimated time of delivery of the product or the decision
creditability of the business, including the amount of pending cases before the courts or complaints before the consumer protection authorities.

For a citizen it might also be very significant to know how she or he could behave differently in order to reach a desired result. Typically, citizens are only provided with the information as to how the legal situation is, but not what they could do to improve it, unless they contact a lawyer.

Commonly all these types of data already exist, if maybe not in one location. The most – technically – accessible information are traditional legal sources, such as legislation and case-law. Again, here the question mainly focuses on how to provide and utilize the existing information in a fashion understandable to the user.

“Like any other content transmitted through a communication system, primary legal sources can be rendered more or less understandable, locatable, and hence effective by structuring and presenting them differently for different audiences. And secondary sources must of course be constructed for a particular market, audience, or level of understanding. “(Tom Bruce)

Who should then be responsible for structuring, presenting and rendering it understandable, especially in the light of source criticism and trust?

Who?

Ignorantia juris neminem excusat presupposes that the legal information provided is correct and of high quality. Who can guarantee such a quality? The state, private entities, research facilities, non-governmental organizations or citizens? My answer would be that all could contribute their part of the game.

One should, however, keep in mind, that user-friendliness is not the same as trustworthiness, which leads to the question of how to ensure that citizens are supplied with the right answers? In a world where even governments do not always take responsibility for the correctness of the provided information, such as in the case of online publications for law gazettes, the question remains who, or what entity, should be held liable for the accuracy of its services. But even if a public authority would sustain accountability, to what extent could that influence an already reached legal decision?

The answer of who should provide a certain legal information service could also depend on who the target group of the information is.

“The legal information market is really no longer conceivable as bipolar – it can no longer be seen as a question of lawyers on the one hand versus a largely legally ignorant everyone else on the other. […] Internet-based legal information systems are used by many cases and conditions of people for many different reasons. […] Probably the most interesting group [are] non-lawyer professionals. These are people whose interest in law is vital, ongoing, and professional rather than either being casual and hobby-like or sporadic and trauma-driven. […] Such new and diverse audiences require new and diverse legal information architectures. They will want specialized collections of law of particular relevance to them. They will want those collections organized and presented in ways that reflect their profession or their situation, in ways that collections organized according to the legal abstractions and legal terms in use by lawyers do not. They are concerned with situations and fact-patterns rather than theories, doctrines, and concepts. They are, in short, a very intelligent and exciting type of lay users, and a potentially enormous audience. ‘(Tom Bruce)

Non-lawyer professionals probably constitute a large market for businesses that can tailor their services to a specific group and therefore render them profitable, as the services are considered of value for these professionals.

Traditional laypersons, however, typically do not represent a large market power simply because they will not always be willing to pay for services of this kind. This leaves them to the hands of other stakeholders such as public administrations, research institutes, non-governmental organizations and private initiatives. As already mentioned, conventionally the raw data is supplied by public administrations. The question, then, is how to deliver it to the end-user.

How?

The Austrian civil code knows two concepts regarding fulfilling one’s part of the contract, Holschuld and Bringschuld. Holschuld means a debt to be collected from the debtor at his residence. Bringschuld constitutes an obligation to be performed at creditor’s habitual residence. In today’s terminology, one could compare Holschuld with pull technology and Bringschuld with push technology. In other words, should the citizens pick up the relevant legal information or should the government actively deliver it at people’s doorsteps, so to speak?

In the offline paper world, the only way to reach a citizen was to send a letter to her or his house. Obviously, information technology offers many more possibilities when it comes to communicating with citizens, either via a computer or even a mobile phone, taking privacy concerns into consideration.

Several e-government and initiatives (video feed from European Parliament sessions and EU’s channel at Youtube) increase the public participation and insight into politics. While these programs are an important contribution to democracy, they typically do not facilitate daily encounters with legal issues of employment, family, consumer, taxes or housing, or provide citizens with the necessary information to do so.

In this respect, technologies enabling interactivity and re-use of public information are of greater importance, the latter also being a strategic concern of the European Union. In particular, semantic technology offers solutions for transforming raw data into comprehensible information for citizens. Here, practical examples that utilize at least part of this technology can also be found within e-government projects as well as in private initiatives.

The next step would be law being built into the code already. Intelligent agents negotiate the most advantageous terms and conditions for their owner, cars prevent being switched on if the driver exceeds the permitted alcohol level (Ignition interlock device) and music songs do not play unless your device is authorized (iTunes).

So, from a technological point of view, anything from presenting legal information on a website to implementing law directly into the end device is possible. In practice, though, most governments are content with providing textual legal information, at best in a structured format so it can be re-used easier. The technical implementation of more advanced functions is often left to other market players and businesses.

There are two initiatives in this respect that are worth mentioning, one being a true private project in Sweden and the other one being provided by the Austrian government.

Lagen.nu (law now) has been around for some time now as a private initiative offering free access to Swedish legislation and case law. Recently the site was extended by adding commentaries to specific statutes, which should enable laypersons to understand certain legislation. The site includes explanations for certain terminology and particular comments are also categorized and include links to other laws and cases.

The other example, HELP, a service provided by the Austrian Government Agency, structures and presents legal information depending on the factual situation, e.g. it contains categories such as employment, housing, education, finances, family and social services. The relevant legal requirements are then explained in plain text and the responsible authority is listed and linked to. In some cases the necessary procedure can even be initiated through the web site.

Both projects are fine examples of the possible transformation of legal information from pull to push technology. They are not quite there yet, though.

The answer

The question we are faced with now is not so much how or which technique would be the best, but rather in which situation a citizen might need certain legal information. Somebody trying to purchase a book via a web site might need information at that moment, and either as a warning text or a check list or its intelligent agent, the purchaser might go to another web site that has better ratings and more favorable legal terms and conditions and no pending law suits. In some other cases, the citizen might need certain information in a specific situation right at the spot. For example, while filling out a form she or he might want to know what would be most favorable choice, rather than simply the type of personal data required for the form. Depending on the situation, different approaches might be more valuable than others.

The larger issue at hand is where the information is retrieved and who is the provider of the information. In other words, trust is an important factor, particularly trust of the information provider. As previously stated, legal information is not usually provided by public bodies but instead is rerouted through various other entities, such as businesses, organizations and individual efforts. This increases the importance of source criticism even more.

In many cases citizens will use general portals such as Google or Wikipedia to search for information, rather than going directly to the source, most often because citizens are not aware of the services offered. This underlines the importance for legal information providers to co-operate with other communication channels in order to increase their visibility.

The necessary legal information is out there, it just remains to be seen if and how it reaches the citizens. Or to put it in other words: The prophet still has to come to the mountain, but in time, with the increasing use of technology, maybe the mountain will come a bit closer.

Christine Kirchberger has been a junior lecturer at the Swedish Law and Informatics Research Institute, Stockholm University) since 2001. Besides teaching law and IT she is currently writing her PhD thesis on Legal information as a tool where she focuses on legal information retrieval, the concept of legal information within the framework of the doctrine of legal sources and also takes a look at the information-seeking behavior of lawyers.

VoxPopuLII is edited by Judith Pratt.

Suffusion theme by Sayontan Sinha

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