The COVID-19 pandemic has changed the way Americans interact (masks and social distancing), work (Zoom calls) and even shop (the mad dash for toilet paper). The pandemic has drastically altered the status quo in most businesses and industries, including the courts.
Most Americans who come in contact with the justice system interact with the civil legal system, which handles matters such as debt collection, child custody, protection orders, evictions, foreclosures, bankruptcy and more. Even before the pandemic, one in three U.S. households faced a housing, family or debt issue serious enough to result in an interaction with the civil justice system.
With the onset of the pandemic and the need for social distancing, state courts adopted technology at an unprecedented pace and scale, according to a new report from The Pew Charitable Trusts, an NCSL Foundation sponsor.
More Remote Hearings, More Participation
Before the pandemic, courts were just beginning to implement online proceedings. However, as the pandemic developed, state courts conducted record numbers of virtual proceedings. For example, the Texas court system conducted 1.1 million remote proceedings across its civil and criminal divisions between March 2020 and February 2021, and the Michigan courts held more than 35,000 video hearings totaling nearly 200,000 hours between April 1 and June 1, 2020, according to the Pew report.
“No jurisdiction in the country had consistently used virtual meeting technology for [eviction] proceedings before the pandemic, but by November 2020, 82% of all state courts were permitting or encouraging remote hearings, with 15% mandating them,” the report said.
These online proceedings may have driven an increase in overall judicial system participation, which can result in a decrease in default judgments, or automatic rulings in favor of the plaintiff when the defendant does not respond to a lawsuit. The Pew report noted that Arizona civil courts saw an 8% decline in the rate of default judgment resulting from litigants’ failure to appear, suggesting more defendants showed up in court. Additionally, “In Arizona’s largest county, Maricopa, the failure-to-appear rate for eviction cases decreased from nearly 40% in 2019 to approximately 13% in February 2021.”
Increased court participation may also play into public safety, as the report has data to suggest participation may increase even in criminal courts. For example, New Jersey “reported that the no-show rate fell from 20% in the first week of March 2020 to 0.3% the week of March 16, when the state began using virtual hearings. Additionally, Michigan’s no-show rate dropped from 10.7% in April 2019 to 0.5% in April 2020.”
The pandemic also changed who could file court documents and how. Since March 2020, 47 states and the District of Columbia have created processes to allow people without lawyers to electronically file court documents in at least some civil cases. Additionally, as of fall 2020, 42 states and D.C. allow electronic notarization or have waived notarization requirements altogether. In addition to such process changes, some states have looked at updating the user interface of their current resources.
For example, the report points to a collaboration between courts in three states and the Suffolk Law School in Massachusetts. The joint effort developed Court Forms Online, a web-based tool that “improves on typical e-filing tools by offering a more user-friendly interface that guides litigants through various court processes.” Although the content is specific to Massachusetts, the creative team behind the technology is sharing its work so it can be replicated in other jurisdictions.
Modernizing the court system and making justice more accessible was a goal among justice stakeholders well before the onset of the pandemic.
There has been a consistent call to action from court leadership and organizations to modernize the courts. For example, the 2016 report Achieving Civil Justice for All, from the nonprofit National Center for State Courts, notes that, “Americans deserve a civil legal process that can fairly and promptly resolve disputes for everyone—rich or poor, individuals or businesses, in matters large or small.” The report made 13 recommendations to the Conference of Chief Justices, including that the courts take full advantage of technology to implement case management, provide access to litigants and collect data to measure progress in reducing unnecessary delays.
Technology Doesn’t Always Create Equal Access
As adoption of technology moved quickly through courts during the pandemic, researchers found that many of its benefits were focused on individuals with attorneys. Technological improvements made it easier for them to file large numbers of cases in a short time. Thanks to online filing tools, national debt collectors initiated thousands of lawsuits each month, according to the Pew report.
Certain populations may not have been able to take advantage of the burgeoning technology used in the courts because they lacked access to a personal computer or high-speed internet. According to Pew’s report, there was little evidence that people with language barriers in need of interpreters or others relying on accommodations for disabilities had their needs met with court technology. In fact, “Of nearly 10,000 state and local pandemic-related orders reviewed for this study, none specifically addressed technology accommodations for people with disabilities and limited English proficiency,” the report said.
As courts look to the future, the Pew report says they will need to “assess and improve these tools, they will need to incorporate feedback from court users, test multiple technology products, collect and analyze use and performance data, combine technology with other process improvements, and implement the principles and safeguards that court officials already have identified as critical to ensuring effective use of technology.”
To help guide these long-term policy discussions, the Conference of Chief Justices and the Conference of State Court Administrators jointly released the following six guiding principles to help courts build on the technological advances made during the pandemic:
- Ensure principles of due process, procedural fairness, transparency and equal access are satisfied when adopting new technologies.
- Focus on the user experience.
- Prioritize court-user-driven technology.
- Embrace flexibility and willingness to adapt.
- Adopt remote-first (or at least remote-friendly) planning, where practicable, to move court processes forward.
- Take an open, data-driven and transparent approach to implementing and maintaining court processes and supporting technologies.
At the beginning of the pandemic, courts quickly adopted (and continue to adopt) technology under emergency authority, but as the pandemic’s second anniversary nears, the permanence of these changes remains in question. With the current unprecedented adoption of new technology and potential benefits being seen from early adopters, states find themselves in a perfect moment to modernize their civil (and even criminal) courts to make them more open, equitable and efficient than ever.
Michael Hartman is a policy associate in NCSL’s Civil and Criminal Justice Program.