There is much buzz about regulatory reform to improve Access to Justice. Our current legal system was designed by lawyers for lawyers. It was assumed that a person appearing in court would be represented. This was the norm when I started practicing in the 1970s, but it is no longer the case. Projects such as Utah’s Regulatory Sandbox offer promise for reforming the system.
Regulatory reform promises a more user-friendly system for unrepresented litigants, but it is unlikely to be a fast process. Lawyers are slow to adopt change. After all, our legal system is built on precedent. And what is precedent - how we did it yesterday. What can we do if we cannot quickly change a system that presents as highly complicated to a layperson? We need a workaround, and existing, well-tested technology tools offer such a solution.
The keystone of our legal system is forms. Nothing happens in a court until something is filed and a case is commenced. Sadly, many courts do not provide the forms needed for many common case types. Even when they do, these are usually paper or static PDF forms in legalese with confusing instructions. Also, we have a problem with form creep. As someone identifies an issue with a process, they introduce a new form to address that issue. While this is done with the best intentions, the number of forms required can be overwhelming.
While we might not get the court or the legislature to translate forms from legalese to plain language, we can design plain-language systems that elicit information to complete those forms. IF we cannot reduce the number of forms, we can automate them and streamline the process for litigants.
Each of the above forms probably needs the same information, such as the name of the parties, addresses, nature of the relationship, etc. Instead of needing to fill these variables out fifteen times, an automated interview would collect it once and then populate where required. A well-designed interview not only gathers information for the forms but identifies strategies and defenses to be used in the case. These can even identify statutory and case law to support a position.
The next logical step from automated forms in helping the litigant is to allow e-filing. By e-filing, I do not mean creating PDFs of the documents and then uploading them to the system. Modern e-filing systems should accept the data collected to populate the forms and import it into the court’s case management system (CMS). I hope to live long enough to see the day that we do not have “court forms” as such but instead only collect data. The COSCA/NACM Joint Technical Committee is exploring this.
How would this work? Suppose fifteen forms are needed to file for a protective order. In that case, the e-filing system should not require a litigant to do fifteen uploads. Instead, one data packet from the automated forms system would accomplish the same thing. Clerks and judges do not need to see the same boilerplate hundreds of times. They can adopt a Joe Friday “Just the facts, ma’am” approach.
Robust e-filing is not just for the unrepresented litigants. In March 2022, representatives from six states met at Stanford Law School as part of the school’s Filing Fairness Project. The Project defines its goal as, “… working towards a future where litigants and advocates can easily participate in the civil justice system through user-friendly filing tools. In addition to its clear benefits for litigants, the Project aims to assist courts and judges by creating more accurate and relevant filings, reducing the time and cost associated with high ‘bounce rates,’ and providing judges with the information they need to better adjudicate the matters before them.”
Case Navigation and Presentation
Unfortunately, the confusing justice system does not end with forms but continues with docketing and other procedures. The modern court CMS should text message litigants the next steps to guide them through the case. Several studies have shown that something as simple as a text reminder of a hearing date cuts down on failures to appear and the need for continuances. Not only is this better for litigants, it saves the court time and money. Sending the sheriff to arrest someone on a bench warrant and then holding them in jail until they can make an appearance is costly.
If a summons comes back not found, the litigant should get a text with a link to an instructional video detailing their options, such as hiring a special process server or doing service by publication. If service is accomplished and the defendant fails to file an answer, a text would inform them how to obtain a default judgment. If an answer is filed, a text would explain how to get the matter set for hearing. Whatever the next step in a case, the system would offer guidance to accomplish it.
Once on the docket, we need instructional videos on presenting a case. The rules of evidence are archaic and serve no purpose in a judge trial. If a judge is qualified to rule on the admissibility of a piece of evidence, that judge could just as easily admit it and give it the weight it deserves. But I digress.
The courts need to recognize the reality of smartphones and provide for litigants to get evidence from their phones into the record. Many courts still do not allow smartphones in the courthouse. We have seen pictures of cell phones hidden outside of the courthouses because litigants could not enter with them. Most litigants will expect to be allowed to show the judge a photo or a text from their phone. This is how people live these days, and it is unrealistic to expect otherwise.
To introduce photos or documents into the record from a smartphone would be as simple as having a cloud-based folder into which documents or pictures could be uploaded. Or an email address to which they could be forwarded. If my bank can let me deposit a check using my phone, a court can accept evidence that way.
Clear and Prompt Final Orders
Getting the forms needed to start the process is not enough. It is disingenuous to get someone into a court process without giving them a way out. At the conclusion of a case, the court should be responsible for composing the decree or final order. This can be readily accomplished using document automation and the data from e-filing in the CMS. Providing this to the litigants rather than tasking it to the prevailing party is timelier. And these final orders should be in plain language, not legalese. Doing so should lead to better compliance with those orders and reduce post-judgment litigation.
These tools are not just for unrepresented litigants but for service providers such as self-help centers, legal aid, pro bono lawyers, and assisted pro se through unbundled legal services. No advances in technology are needed to implement these tools for unrepresented litigants. These have been available for decades. It is not a lack ability but a lack of resolve that has stood in the way of providing them.
In its Guiding Principles for Post-Pandemic Court Technology, the Conference of Chief Justices/Conference of State Court Administrators stated, “The court user experience should drive innovation and the transitioning of traditionally in-person processes online where appropriate. Courts should focus on implementing technology improvements that better serve both court users and staff; and as such, are open to working with public/private entities to achieve desired innovation.” One can only hope.
About the Author
Glenn Rawdon is Program Counsel for Technology with the Legal Services Corporation. He is responsible for helping legal services programs with their technology efforts and with the administration of the Technology Initiative Grants (TIG) program. Glenn has served as co-chair of the Law Office Management section of the Oklahoma Bar Association and was a member of the Legal Technical Advisory Counsel of the ABA.