“[O]ur system of courts is archaic and our procedure behind the times.”
The coronavirus pandemic has given new urgency to the failings of the U.S. legal system to provide meaningful access to justice for many Americans. These failings are by no means new, but the pandemic has shone a spotlight on them.
Due to the high risk of coronavirus transmission in courthouses, most courts in the U.S. – from municipal small claims courts to state criminal courts – have closed their doors during much of the pandemic and moved their operations online, largely using technology such as Zoom.
For the notoriously change-resistant court system, this represents a mile of change during an inch of time. While access to justice involves much more, Zoom proceedings provide one illustrative case study, indicative of other potential ways in which courts can leverage technology to meaningfully expand access to justice, and of the challenges that must be addressed in doing so.
As coronavirus spread across the U.S. beginning in March, most courts continued operations remotely. Since then, some court functions have been put on pause, some resumed in person, and some have continued remotely.
In Miami, traffic court was the first to move its proceedings to Zoom. Texas became the first state to hold a criminal jury trial over Zoom in August. In Michigan, the courts held over 200,000 hours of hearings on Zoom just in April and May and made it all accessible to the public online both live and after airing. In just the first month of doing so, Michigan’s Virtual Courtroom Directory was accessed more than 15,000 times. The National Center for State Courts developed its own set of recommended guidelines on how courts should use Zoom. Along the way, many courts found serendipitous benefits to conducting proceedings online. Lawyers found that many clients preferred Zoom depositions because they are cheaper. Court interpreters found Zoom’s simultaneous interpretation functionality useful for multi-lingual proceedings. And of course, all parties saved the commute to the courthouse. Michigan’s Chief Justice, Bridget McCormack, described Zoom as representing a new paradigm for courts: “one that is more efficient, more convenient and accessible for litigants, more transparent, and less costly.”
The move to online proceedings was not all rosy, however. There were cases where the jurors, attorneys or judges did not take the hearing as seriously over Zoom, even leaving the Zoom screen for several minutes. Internet and computer access – the Digital Divide – is a major obstacle both in urban and rural areas. Some defense attorneys worry that empathy for their clients is reduced when the client is not in the same physical room as the other parties. Many jurisdictions instituted a rule that hearings could only be conducted remotely if both parties, plaintiff and defendant, have an attorney. While this rule aims to foster equity, in some cases it might have accomplished the opposite, forcing pro se litigants to wait weeks or months to proceed with their hearing in person. Some attorneys have voiced concerns that the elongated waits pressure litigants in pretrial detention to accept plea deals simply so they can leave jail, raising a possible due process legal violation.
What do online proceedings mean for access to justice?
“Access to justice” requires two things: access and justice. These are not the same thing and the presence of one does not guarantee the other. Access means the ability to be reasonably informed about one’s legal rights, to be able to obtain legal representation or plausibly represent oneself in settings such as courts and administrative agencies where one’s rights may be enforced or determined, and to have meaningful opportunity to pursue a legal claim. But that’s not enough; legal claims should yield justice. The second component is the probability that the legal system, once accessed, will lead to just outcomes.
Access to justice in the United States has long been in a dismal state. The U.S. ranks 103rd out of 126 countries for accessibility and affordability of civil legal services, despite having the second highest rate of lawyers-per-capita of any country globally (behind Israel). In criminal legal services, indigent defense remains sorely lacking as well. Consider:
- Lack of access: While 71% of low-income Americans experience a civil legal problem each year, only 14% receive adequate legal help.
- Lack of representation: Public defenders are perpetually under-resourced and often unable to provide adequate legal representation. In eviction cases, up to 84% of landlords have lawyers compared to only 1.3% of tenants.
- Lack of trust: Distrust of the criminal justice system leads many Americans, particularly low-income people of color, not to even seek legal recourse for civil claims.
- Racial disparities: African Americans are twice as likely as similarly situated whites to be charged by federal prosecutors with offenses carrying a mandatory minimum sentence.
- Wrongful convictions: As many as 100,000-180,000 individuals are estimated to be currently incarcerated in the U.S. for a crime they didn’t commit (error rates are estimated as high as 6% or 11%).
- Justice delayed is justice denied: Civil cases take an average of over two years, with virtually no transparency or advance predictability as to the exact duration.
Online proceedings and “access”
For many, attending court in person might require hours on public transit and a weekday off from work. For some, the courthouse itself might feel unwelcoming or intimidating, replete with gun-toting police and esoteric courtroom traditions. Many courts notoriously run far behind schedule, with parties waiting hours for their turn. These burdens fall disproportionately on low-income and minority groups, who often have more difficulty reaching the courthouse (lower car ownership), less ability to take off from work (disproportionately in hourly jobs), and higher likelihood of experiencing long wait times at the courthouse (under-resourcing of courts in urban areas).
Moving court online has the potential to expand access to judicial proceedings. During the pandemic, parties have attended court remotely from home or elsewhere, avoiding the commute, minimizing time off from work, and avoiding or working around wait times. For class action lawsuits, Zoom hearings might enable a larger number of geographically dispersed members of the plaintiff class to more easily attend court proceedings conducted online, if they have computer and internet access, says Dan Nagin, Professor at Harvard Law School and Faculty Director of the WilmerHale Legal Services Center. Similarly, Zoom hearings might make it easier for court observers to join hearings to show their support for a party and to hold courtroom actors accountable.
At the same time, the digital divide in the U.S. raises serious concerns over the equity of this access – up to 21 million Americans lack home broadband access, including 44% of those making less than $30,000 per year. Even among people with access, especially the elderly, some might not feel confident or capable of using the technology required to attend court online. For litigants in domestic violence cases or other challenging situations, accessing court via Zoom from home could prove impossible.
Online proceedings and “justice”
Research has indicated that the farther away one is from another, the easier it is to dehumanize the other person. This presents one clear concern for remote court proceedings. Some studies of immigration courts and criminal courts found that defendants who appeared on video as opposed to in person fared significantly worse in deportation and bail outcomes, respectively. This concern has led some defense attorneys to request postponements on trials for their defendants until they can be conducted in person or to allege due process violations for eviction hearings held on video. Some have also worried that evaluating the truthfulness of parties is more difficult over Zoom, due to the relative lack of body language, although research on this matter appears to be inconclusive.
Interestingly, this concern might not be as pronounced for restorative justice circles conducted over Zoom, says Adriaan Lanni, Professor at Harvard Law School and an expert on restorative justice. Since restorative justice circles involve active participation from all parties, including the accused, it is more difficult to dehumanize one participant as merely a box on the screen.
The pandemic has catalyzed the adoption of technology by courts. What happens after the pandemic ends, however, remains an open question. To take advantage of this opportunity to expand access to justice, courts should make thoughtful, strategic, evidence-based decisions. To do so, the legal profession can take a page out of medicine’s book, a field which has measured and analyzed aggregate outcomes to a far greater degree than the legal profession has. (This is not to say the medical profession is perfect, but just that its mindset is less ossified in the 19th century than that of the legal profession.) The legal system should create “legal analogues” to what the medical profession does to expand access to health: randomized control trials, public health interventions, and digital tools.
First, courts should utilize the opportunity created by the pandemic to conduct rigorous, experimental trials to evaluate the efficacy of Zoom versus in-person hearings, says Jim Greiner, Professor at Harvard Law School and Faculty Director of Harvard’s Access to Justice Lab. Once it’s safe to return in person, courts can formalize controlled experiments to conduct some hearings on Zoom and some in person, effectively creating treatment and control groups as is done in medicine. Measuring and evaluating the results of each will help identify, based on evidence rather than mere intuition or inertia, which approach leads to superior outcomes in terms of both access and justice.
Second, online courts should be evaluated at a systems level – much like medicine evaluates public health interventions – in addition to the case-by-case fashion more typical of the legal profession, according to Jon Hanson, Professor Law at Harvard Law School and Faculty Director of the Systemic Justice Project. Courts and governments can analyze the groups of litigants who have difficulty accessing online proceedings and target solutions to those groups; for instance, municipalities might re-allocate a portion of court budgets from courthouse expenditures (e.g. office space) to invest in computers and broadband accessible in private stalls for those who need it.
Third, there should be a broader reassessment of the rules regulating the legal profession which have contributed to the current inaccessibility crisis. Owing to licensing requirements, ABA accreditation, and rules which forbid non-lawyers from providing legal assistance even to those who could benefit from it, the modern legal profession in the U.S. functions as a legally-sanctioned economic cartel. David Wilkins, Professor at Harvard Law School and Director of the Center on the Legal Profession, notes that while this industry protectionism is unlikely to change anytime soon, the generational shift of more Millennials and Gen Z coming in to the legal profession, coupled with the new sense of urgency from the 2020 pandemic and protests for racial justice, is likely to expedite the openness of the legal profession to new technologies, new methods, and potentially new rules. For example, some legal jurisdictions are evaluating proposals to create regulatory “sandboxes” in which new legal or legaltech providers can innovate with few restrictions and only face general regulation if successful (an idea originating from financial regulation sandboxes). Online dispute resolution, already in the works for some years, might also be expedited by the coronavirus pandemic, although many courts’ lack of funding or data protocols presents obstacles. This could increase willingness to expand access through computer-assisted roles for legal services.
Thank you to Professors Jim Greiner, Jon Hanson, Adriaan Lanni, Dan Nagin, and David Wilkins for their helpful comments and conversations for this post.