Throughout the past 18 months, the pandemic has been a shared experience across our state, our country, and our world, yet everyone has experienced it uniquely. The same is true of our courts, which have taken different paths to the same goal: continuing access to justice and continuity of services—be it virtually or in person. The challenges they faced brought innovation at a scale and pace that we’ve never seen before, amounting to a year-long national pilot project for both state and federal courts.
Moving forward, the pandemic will have lasting implications for our justice system. The immediate focus on keeping the doors of justice open will inevitably shift to growing case backlogs, reduced funding, increased demand for low-cost legal assistance, inequities in access, and deepening concerns regarding public trust and confidence. Our justice system must be ready, but how do we create paths forward to achieve justice for all?
Reducing the Costs and Delays of Civil Litigation
In the last 15 years, there has been a significant focus on the cost, delays, complexity, and barriers to access in the American civil justice system, at both the state and federal levels—and a significant effort to address these concerns. We’ve made progress through rule changes, case management, technology innovation, and efforts to change the overall culture, but change has been slow. Committees and task forces often take years to develop recommendations before launching multi-year pilot projects.
Enter the pandemic. We’ve seen rapid, inspirational change and disruption to norms that have the potential to lead to significant and long-term changes to how our civil justice system functions—and to the ultimate delivery of civil justice in this country. This is an excellent time to ask a key question: what are the emergent reforms that courts, attorneys, litigants, and others in the justice system have made during this time that have helped our civil justice system become more efficient and less costly, while also ensuring the system is accessible, fair, equitable, and accountable?
The convenings highlighted a number of lessons learned that help answer that question:
- Flexibility already exists and is largely built into the rules.
- Case management is more critical than ever.
- Much of the pre-trial process works well and can be done more efficiently, remotely.
- Trials are a separate matter, and one size doesn’t fit all.
- Cooperation, civility, and professionalism remain paramount.
- Virtual proceedings have made courts more participatory.
- The courtroom still matters.
- The quality of technology also matters, as does security.
These conversations also highlighted an important takeaway: we are still in the midst of the pandemic, with challenges that we have not yet fully tackled. The impacts of the pandemic will continue for many years to come, as the justice system deals with the backlog of trials and the increase in certain cases as a result of the pandemic’s effect on people’s lives and businesses. We are learning that the hybrid world brings new complexities. Managing different views will be more challenging as judges and attorneys navigate more choices, and differences of opinions between the parties regarding in-person versus remote appearances.
Around the country, task forces, committees, individual judges and attorneys, and numerous other stakeholders are engaged in this process of determining lessons learned and recommendations for what changes should be continued. A key piece of this analysis must be further research. Courts had to respond to the crisis quickly, putting in place changes without long-term study or research. We have seen the value of innovation in this moment, and we should continue to encourage an agile approach to change management. We should bolster these efforts with data wherever that is possible. And, we need to identify the places where it is essential to slow down and conduct research, particularly where key system values are at stake, such as due process. Research into jury trials and virtual versus in-person presence (including concerns of attention span, credibility determinations, and witness interference and misconduct) are key areas for focus.
Ensuring Access to Justice in High-Volume Cases
The National Center for State Courts’ Landscape of Civil Litigation in State Courts study in 2015 highlighted that the makeup of civil litigation in our state courts had changed dramatically over the last several decades, and that today state court dockets are dominated by lower-value contract and small claims cases, with attorney representation on both sides in only 24 percent of cases.
These “high-volume” cases share a number of common characteristics. Plaintiffs tend to be represented, with more knowledge of the rules and procedures, as well as greater access to resources. Defendants, on the other hand, are likely to be self-represented, of low or modest income, and face numerous barriers to access to justice. These cases are where most people in our communities experience the justice system, and where civil justice reform efforts have urged more flexibility, creativity, and new solutions to address the gap in access to justice in our system. Innovation during the last 18 months has been particularly impactful and transformative for these cases.
A few key lessons learned stand out for high-volume cases:
- We need to shift the paradigm to think about courts as a service, not just a location.
- Holistic upstream solutions have huge potential to solve justice needs in our communities.
- Technology has allowed more people to access the courts in high-volume cases.
- Not all virtual access is equal.
- Technology has exposed a digital divide in high-volume cases especially.
- Communication is crucial for a court service approach.
- Streamlined and relaxed procedures are more important than ever.
- Court funding, staffing, and technology are crucial to address high-volume matters.
Just as with standard and complex cases, there remain continuing challenges around high-volume cases. Innovation has happened on a national scale, but has manifested in very different ways in each state, local jurisdiction, and virtual courtroom. The lack of uniformity is particularly concerning for fairness and equity in high-volume cases, where self-represented litigants may be navigating vastly different circumstances without any knowledge or expertise regarding what to expect or do.
We need more discussion and empirical research regarding remote appearances, as well as a framework for determining in-person versus remote appearances. A key question that has been raised around the country is who decides who gets to appear remotely and who appears in person? While judicial discretion plays a role, as does the type of case and type of hearing, it is also essential that the litigants and users of our system have a voice as well.