As courts now look to make technologies part of their continued pandemic response and, potentially, post-pandemic operations, they may need to turn a critical eye to what to keep and what to improve.
Court services have long been designed with the assumption that they will be used by legal professionals who are prepared to parse legal jargon and navigate complicated processes. But civil cases — like those involving evictions, child support and debt collection — see plenty of lay people who cannot afford lawyers left to represent themselves. As it stands, courts must ensure defendants in criminal cases have access to a lawyer, regardless of ability to pay; not so for most civil cases.
The digital shift has removed some barriers that make it difficult for regular people to navigate the legal system on their own, but also reinforced some long-standing hurdles and added others, the report found.
“Despite their many documented benefits, the digital tools that courts implemented during 2020 often widened the chasm between people with and without attorneys,” Pew’s report noted.
The study focused on civil cases and examined court technology adoptions during the first months of the pandemic to assess where the tools helped not just maintain but improve service, as well as areas to improve to achieve greater equity, transparency and efficiency.
As courtrooms closed, hearings went virtual. By November 2020, 82 percent of state courts allowed remote eviction hearings, and 15 percent required them, per the report. Courts appear to be embracing the shift, with “a majority” of 240 magistrates, trail judges and appellate justices saying in a June 2021 national survey that they anticipate keeping remote options long-term.
Difficulty missing work, arranging child care and traveling to court can all make defendants less likely to make their court dates, and offering remote hearings often lifted these barriers. That rising participation meant more people were able to plead their sides and avoid default judgments, in which judges rule against participants based on their failure to appear. Arizona, for example, reported that the share of civil court cases ending in default judgments declined 8 percent year-over-year in June 2020.
Still, not everyone has reliable access to Internet or computers powerful enough to support livestreamed hearings, while others may be blocked by lack of technological know-how. That makes it important for courts to supplement high-tech offerings with other options, including the ability to join remote hearings by phone.
Many courthouses that used to rely on paper documents and in-person notarization have launched digital alternatives, and some states that had only enabled lawyers to e-file moved to extend access to laypeople as well.
Attention to user experience matters, too, and three states worked with Massachusetts’ Suffolk Law School to create a user-friendly website where residents could apply for eviction protections and file domestic violence restraining orders.
The scramble to go online saw some courts fail to provide enough clear, detailed information to guide residents through new digital procedures and options, but courts worked to smooth out communication tangles over time by providing legal information portals, virtual help desks and other supports, Pew found.
Here again, courts must be sensitive to the digital divide, the report said. They should still allow constituents to submit paper court documents through drop boxes placed outside courthouses — a step that many, but not all, states have adopted.
The disparity in digital access and in courts’ choices of which tools to adopt could tilt the playing field in favor of well-resourced litigants, and against attorney-less defendants.
Some large debt collection agencies and their lawyers took advantage of new online tools to file lawsuits in bulk, rapidly bringing slews of new cases during the early months of the pandemic, for example. But several states failed to give defendants without lawyers the tools to help them respond.
“In eight states, people without lawyers had almost no way to file court documents in debt claims against them, leaving most debt defendants in those states unable to participate in court proceedings so that the judges could hear all the facts and render verdicts accordingly,” the report stated.
Pew researchers also expressed concern that courts may have fallen short of ensuring residents with disabilities or limited English proficiency could easily use digital services. Their review of roughly 10,000 documents issued by courts from February 2020 to October 2020 in response to the pandemic did not turn up any that explicitly mentioned “technology accommodations” to meet these groups’ needs. Only a small portion of the document addressed accessibility for people with limited English (less than 3 percent) or disabilities (less than 1.5 percent).
As courts move to embrace a more digital future, they can follow several practices to better ensure their efforts support all constituents, the report noted.
Court proceedings already tend to be designed with attorneys — not regular residents — in mind as the end users, but the push for digital transformations is an opportunity to re-examine and simplify the old ways of doing things, alongside equipping new tools, authors suggested.
“Courts’ advances in technology show promise. However, if courts fail to improve existing processes, they run the risk of digitizing their problems rather than solving them,” Qudsiya Naqui, officer for Pew’s Civil Legal System Modernization project, said in a press release.
Researchers also urged engaging potential users in testing and giving feedback on court technologies, before officially committing to their adoptions. Then, once the tools are in place, courts can hire third-party researchers to assess the technologies’ impacts, enabling courts to use the findings to improve anything that isn’t working and embrace what is.
To reach their findings, Pew’s team reviewed the pandemic emergency orders given by states and D.C.’s supreme courts between March 1, 2020, and Aug. 1, 2020. Researchers also analyzed roughly 70 academic and not-yet peer reviewed studies; a database of state and local courts’ emergency orders; and Census Bureau and Federal Communications Commission (FCC) data.