One legacy of our experience with the COVID-19 pandemic has been the realization that the legal system can innovate with astonishing speed when necessary to maintain operations. Zoom hearings, e-filing, virtual closings, and drive-by estate planning are now widely accepted aspects of the practice of law in the United States.
We’ve had a taste of the future, and it’s intoxicating, particularly for overburdened institutions that have glimpsed a better way to do business. Until very recently, discussions about courtrooms of the future were largely confined to tech experts at places like the National Center for State Courts and the Legal Design Lab at Stanford Law School. The innovations they described made sense for everyone in the legal community worried about access to justice issues, but enthusiasm for change was missing among other, more influential stakeholders.
Back in 1995, the U.S. Judicial Conference, not widely appreciated as a cutting-edge group, saw the future clearly in its Long Range Plan for the Federal Courts document:
When courts are able to receive documents electronically from parties already equipped to submit their cases in this manner, the concept of the “virtual courthouse” envisions a court able to schedule proceedings through visual tele-communication, with participants at different locations, lessening the need for a “physical courthouse.”
That future never arrived, a casualty of institutional inertia, low demand for change, and a lack of funding from state legislatures.
All that is changing now.
According to the NCSC’s recent report, Guiding Principles for Post-Pandemic Court Technology, state court administrators should act now to leverage the current forward momentum by making significant changes to the ways that courts use technology to serve the public. Per the report:
The COVID-19 pandemic is not the disruption courts wanted, but it is the disruption that courts needed: to re-imagine and embrace new ways of operating; and to transform courts into a more accessible, transparent, efficient, and user-friendly branch of government. Institutional inertia should not end this transformation once the pandemic passes.
The report’s authors, the Post-Pandemic Planning Technology Working Group of the Conference of Chief Justices and Conference of State Court Administrators, go way beyond mere calls for more Zoom hearings. The report touches on nearly every aspect of courthouse operations, offering a mix of specific reform proposals and broad principles that courts should consider when acquiring new technology for judicial operations:
- Preserve fundamental rights. Court rules and local statutes should be amended, if necessary, to authorize electronic service of notices of legal proceedings. More information, written in plain language, should be made available to litigants. Online systems should be re-designed so all necessary information about a legal problem is available in one location. Case files should be more readily available. New dispute resolution technologies should have the ability to connect litigants with legal assistance. For represented parties, technology should permit their counsel to participate fully—and remotely—if necessary. Technologies that facilitate online negotiation should also be made available to litigants.
- Focus on the user experience. Public-facing technologies should be mobile-friendly and easy to use. When designing courthouse technologies, judicial officials should take steps to ensure that they are usable for underserved communities and disabled individuals. Offer public-facing access technologies free of charge and provide alternative means for users to access court services (e.g., telephone, text messaging), including access for persons who lack Internet services.
- Prioritize court interests over vendors’ interests. The report encourages courts to collaborate with one another to help drive down the cost of technology acquisition. “Courts should consider collaborating on a local or regional basis to standardize requirements and leverage negotiations with vendors,” the report states. “The tendency to regard each court as a unique business problem permits vendors to charge bespoke prices for what may be across-the-board very similar solutions.”
- Build systems iteratively. The report encourages cost-effective technology design by calling on courts to start small, test often, and gradually add new functionality in response to experience. Explore technology development partnerships with legal aid groups, law firms, community organizations, and vendors.
- Adopt a remote-first mindset. Move as many processes online as possible. Create an information infrastructure that supports remote work for employees and others involved in the day-to-day operation of the courthouse.
- Foster transparency and data-driven processes. Collect data frequently and establish metrics for defining success. Protect personal information processed in court operations. Share successfully developed technologies with other courts. Budget for future costs to modify court technologies in response to changes in the law.
Similar efforts to maintain the innovation momentum necessitated by COVID-19 are underway in Florida, California, and Michigan, and other jurisdictions. The task of making permanent changes in the way courts use technology to provide judicial services will, in many cases, fall to state legislatures and courts of last resort. Those proceedings will provide everyone in the legal community an opportunity to weigh in on what promises to be a grand redesign of all aspects of the U.S. system of dispensing justice.