Categories
Research Themes

Fairness

From a user’s perspective, several factors affect the perception of being ‘fairly’ treated. Those specific to technology enhanced A2J include; usability, access to legal information and autonomy. There are both objective and subjective considerations to fairness in TE-A2J.

Overview

User perception of fairness will offer a valuable quantifier in determining how effective an innovation is at increasing access to justice (Hou et al., 2017, p. 2511). When assessing this, designers will consider the user experience to help them design a better system whereas legal professionals and scholars may consider the concept of procedural justice, asking people whether they consider the system to be fair and dignified (Hagan and Kim, 2017, p. 1). Both perspectives are important for an innovator to consider.

In terms of user experience, relevant factors to the perceived fairness of online case resolution systems appear to be how easy the system is to use, the outcome and the sense of justice (Hou et al., 2017, p. 2511). More generally, resources that enhance the dignity and autonomy of a user are likely to increase the perception of fairness and therefore trust in the overall legal system but this will vary depending on how much a user can actually engage with the system (Hagan and Kim, 2017, p. 6).

When considering fairness, vulnerable clients may present the most accurate indicator of how effective an innovation is in terms of increasing access to justice as they are among those most likely to have limited digital skills (See: Engagement). Risk factors that exploit vulnerability, such as making digital services mandatory, need to be identified and addressed (Legal Services Consumer Panel, 2019). A combination of digital services and human interaction may provide a way to do this, particularly in relation to vulnerable clients (Cabral et al., 2012, p. 260). A better perception of fairness in the justice system may be influenced by innovations that incorporate greater access to legal information, online support tools and guided pathways.

Perceptions of procedural justice appear to be linked to public confidence and trust in legal authorities and the legal system (Tyler cited in Byrom, 2019, p. 19). Where an innovation is linked to a public body, some users may be influenced by their previous experience with the authorities when determining the fairness of the innovation. In addition, it is important to be aware of the complications that can arise when the user is in a dispute with a local authority as their perception of fairness may be skewed. If the resolution does not go their way, they may consider the outcome to be biased against them because the local authority is in a stronger position and may have ties to an innovation. This is important to consider because if users feel that a service is unfair from the start, it is unlikely that they will be motivated to use it to explore their legal issues.

In order to enhance user participation, technologies must be built and deployed in ethical ways (Donoghue, 2017, p. 1001). We need to be aware of the potential for technology to be biased (Legal Services Consumer Panel, 2019). One example of bias in legal technology is an algorithm used by judges in the US called COMPAS; the algorithm was used to determine the likelihood of reoffending and it was found to have incorrectly judged black defendants as having a higher risk of reoffending (Legal Services Consumer Panel, 2019). In considering fairness, innovators should consider the neutrality and appropriateness of outcomes that are suggested in order to improve access to justice (Cabral et al., 2012, p 260). In addition, using existing, validated tools to measure fairness may be useful to boost the credibility of these technologies (Byrom, 2019, p. 20). The Solicitors Regulation Authority has already produced adapted regulations in relation to technology innovations in the legal sector (Solicitors Regulation Authority, 2020). To ensure the fairness of innovations, further regulatory guidance may be needed.

Related themes

Trust and Transparency; Engagement

Case studies

  1. COMPAS
  2. SRA Innovate – Legal Access Challenge

References

1. Ministry of Justice (2019) Evaluating our reforms: response to PAC recommendation 4 [online]. Ministry of Justice. Available from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/775588/Public_Accounts_Committee_Recommendation_4_31_Jan_2019pdf.pdf [Accessed 1 April 2020].

2. Byrom, N. (2019) Developing the detail: Evaluating the Impact of Court Reform in England and Wales on Access of Justice. The Legal Education Foundation [online]. Available from: https://research.thelegaleducationfoundation.org/wp-content/uploads/2019/02/Developing-the-Detail-Evaluating-the-Impact-of-Court-Reform-in-England-and-Wales-on-Access-to-Justice-FINAL.pdf [Accessed 30 March 2020].

3. Hou, Y. et al. (2017) Factors in Fairness and Emotion in Online Case Resolution Systems. Human Computer Integration [online]. 6(11). pp. 2511. [Accessed 16 March 2020].

4. Hagan, M. and Miso, K. (2017) Design for Dignity and Procedural Justice. Advances in Intelligent Systems and Computing, Proceedings of the Applied Human Factors and Ergonomics International Conference. Springer Press [online]. Available from: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2994354 [Accessed 17 March 2020].

5. Legal Services Consumer Panel (2019) Lawtech and consumers [online]. Legal Services Consumer Panel. Available from: https://www.legalservicesconsumerpanel.org.uk/wp-content/uploads/2019/06/LSCP-Technology-Paper-2019.pdf [Accessed 17 April 2020].

6. Cabral, J. et al. (2012) Using Technology to Enhance Access to Justice. Harvard Journal of Law Technology [online]. 26[1]. pp. 241-324. [Accessed 17 March 2020].

7. Donoghue, J. (2017) The Rise of Digital Justice: Courtroom Technology, Public Participation and Access to Justice. Modern Law Review [online]. 80(6). pp. 995-1025. [Accessed 14 January 2020].

8. Solicitors Regulation Authority (2020) SRA Innovate [online]. Available from: https://www.sra.org.uk/solicitors/resources/innovate/sra-innovate/ [Accessed 14 April 2020].

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