Virtual hearings have been touted as providing easier access to the courts for low-income and self-represented litigants. But in a recent study, The Pew Charitable Trusts concluded the online judicial system is still designed for lawyers, and those parties without attorneys continue to be at a disadvantage.
Pew’s study, “How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations,” examines the impact of the civil courts’ swift shift to online operations at the outbreak of the COVID-19 pandemic. The report applauded the rapid adoption of technology but recommended the courts do more to transform their processes so unrepresented litigants can access the judicial system.
“Courts do play an unexpected but outsized role in people’s lives and their finances and their families,” said Qudsiya Naqui, officer, Civil Legal System Modernization Project at The Pew Charitable Trusts. “So it’s really critical to consider them as an actor or a player and to make sure that they are more open, efficient and equitable so that the people who are navigating them have a meaningful opportunity to participate in a real way and have their cases heard and have outcomes delivered for them.”
Pew highlighted that courts had recognized technology could be beneficial to the system long before the pandemic struck and had been moving some functions online. Primarily, technological tools were being used to complete discrete tasks like filing and notarizing documents, and to conduct some virtual hearings as well as online dispute resolution.
Indiana courts completed the transition of their dockets to the Odyssey case management system in 2019, with Sullivan County being the last to make the digital switch. Also, with the arrival of the pandemic, Indiana allowed different methods for signing and notarizing wills.
The technology is credited with enabling the Hoosier judicial system to continue working in 2020 when lockdowns and social distancing were the only way to stop the spread of the coronavirus.
Pew found the technology benefited those with attorneys. In Indiana, attorneys said they were more efficient when they could attend a hearing seated at their desk and going online. Also, they noted their clients were taking advantage of the easy access by tuning in for procedural hearings.
However, Pew discovered the technology posed multiple hurdles for unrepresented litigants.
Among the findings, pro se parties often could not use the digital tools because things like e-filing were accessible only to attorneys. Also, the information posted on public websites was limited in providing litigants the specifics of how and where documents should be submitted or which types of cases would be served by virtual hearings.
Moreover, the lack of high-speed internet and sufficiently powerful computers made interacting with the courts even more difficult, particularly for minorities and people with disabilities or limited English proficiency.
Naqui pointed to evictions as an example. In eviction cases, she said, 82% of states encouraged their courts to use virtual hearings and 15% of the states actually required it.“We found that in nine states, people without lawyers could not electronically file paperwork in eviction cases,” Naqui said. “So that means that in some instances it’s likely that individuals were required to participate virtually in eviction hearings, but they couldn’t file the paperwork necessary to prove their care or support their case because they couldn’t file it electronically.”
Examining pro se participation
Seemingly contrary to the findings that unrepresented individuals face numerous difficulties maneuvering the online courts, the Pew study stated the access offered by the technology actually increased participation in civil courts.
Judges and other state court officials reported higher numbers of litigants appearing in 2020 when the proceedings were remote. In Michigan, Chief Justice Bridget Mary McCormack told Pew that the number of people showing up for virtual court is equal to the amount who didn’t appear for in-person proceedings.
The Pew study noted the higher participation rate is consistent with the belief that reducing the obstacles to getting to court — such as getting transportation to the courthouse, taking time off work and finding someone to care for their children — would enable more people to “meaningfully engage” in their cases.
Even so, Pew maintained that courts need more data and analysis to confirm the upward trend in participation.
Also, little is known about how effectively pro se parties are able to advocate for themselves if they do appear for their remote hearings. But Pew pointed to a multiyear study on virtual courts being led by Indiana University Maurer School of Law professor Victor Quintanilla. IU Maurer is taking a close look participant experiences and perceptions of the virtual hearings along with what technological challenges they had to overcome.
“So we’re hoping that some preliminary findings from that research will uncover more about what participation looks like for people,” Naqui said.
Pew concluded its study by offering three recommendations to help courts officials make their processes “more open, equitable, and efficient.”
Specifically, Pew recommends courts combine technological tools with improvements to the judicial system. Just layering the technology on top of the complex court process will just reinforce the hurdles unrepresented litigants face. Officials should examine the procedures and identify to simplify them for pro se individuals.
Also, Pew suggested any new tools that are offered not be implemented in a vacuum. The digital upgrades should be tested with the intended users, and the data should be collected and analyzed to help guide decisions about technology.
“By studying how technology worked well — or did not — during the COVID-19 pandemic,” the report concluded, “courts can better understand their effects on litigants, especially those without lawyers, and undertake improvements to help Americans settle disputes and avoid life-altering consequences.”