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How Courts Can Increase Access to Justice by Adopting Better Technology

By Nick Rishwain

Yes, the title of this article is a mouthful—and daunting. The technology options seem endless, and access to justice is broad. You have heard the phrase “access to justice” or the catchy abbreviation of “A2J.” What does it mean? Well, let’s look at two definitions of access to justice prior to attacking the technology issue.

Increase Access to Justice by Adopting Better Technology

Increase Access to Justice by Adopting Better Technology

In 2010 the U.S. Department of Justice (DOJ) established the Office for Access to Justice (ATJ). According to the DOJ archives, the ATJ identified three principles to guide its mission:

  • Promoting Accessibility—eliminating barriers that prevent people from understanding and exercising their rights.
  • Ensuring Fairness—delivering fair and just outcomes for all parties, including those facing financial and other disadvantages.
  • Increasing Efficiency—delivering fair and just outcomes effectively, without waste or duplication.

Promoting accessibility and increasing efficiency seem to be excellent principles to guide courts in increasing access to justice. Ensuring fairness, on the other hand, feels like it should be a guiding principle for the justice system as a whole. There should be no reason to reiterate fairness. If we have to restate it, we may have larger issues to address. Eliminating barriers to exercising rights and effectively and efficiently delivering justice are areas on which we need to focus.

For further guidance, I looked to my home state and the State Bar of California. The California Bar has a Center on Access to Justice. On its website, the Center on Access to Justice states, “The State Bar works to increase access to justice through: funding for legal services programs; pro bono efforts; administration of the Lawyer Referral Service certification program; foreclosure resources; and staff support for the California Commission on Access to Justice.” The Center does not really offer a definition for access to justice, although the website does state, “The State Bar is committed to expanding, supporting and improving the delivery of legal services to low- and moderate-income Californians.” California seems focused on delivery of legal services to lower income ranges. This is appropriate, as they seem to suffer the most from the access-to-justice crisis. However, if we are going to improve access to justice, we should do so for everyone. The changes should impact all seeking legal services.

Still, we don’t have a solid definition. We have a concept. For our purposes, this concept is best addressed by two of the components stated by the ATJ, in essence, promoting accessibility and increasing efficiency. If the DOJ and California Bar have not defined it, I’m going to take a stab at my own definition using their guidance. Access to justice is the improved delivery of legal services, to all citizens, by enhancing accessibility and constantly improving efficiency.

Not a bad definition, but what is the problem? Lawyer and leading legal technology consultant Robert Ambrogi, recently writing in Above the Law, summarized it as follows: “studies say 80 percent of the legal needs of low-income people and 60 percent of moderate-income people go unmet. Even those who qualify for free legal aid are often turned away due to providers’ lack of capacity.” This is not a problem that can be solved by more pro bono commitments from lawyers. We have an entire legal market that is not being served.

To implement lasting change, courts must adopt supportive technology. For the technology to be worthwhile and beneficial, courts must undergo a cultural shift or a transformation toward embracing technology and innovation. Technology is the enemy of habit. Eliminating the existing inefficient habits currently utilized by our legal system will free up time for all involved, including attorneys, judges, and court administrators and will allow everyone, especially the disadvantaged, access to the law. Technology has become a great equalizer. It is time for our country’s court system to recognize it as such and to implement it in a way that is advantageous to all.

Common Technology and Recommendations

In preparing this article, I reached out to several lawyer-friends for their input on adopting better technologies to improve access to justice. Some of the responses were as expected (greater access to e-filing). At the bare minimum, courts should be participating in the following technologies.

Readers may be familiar with CourtCall (courtcall.com). Since 1995, CourtCall has been used to allow attorneys to make routine appearances from their home or office. This saves time and money for the attorney and the client. If lawyers do not have to travel to court and wait for their case to be called, they do not have to bill for that time and, equally important, can free up that time to work on other matters.

E-filing of court documents should be the standard. Because I am not practicing, I assumed all courts had an electronic filing option by now. Unfortunately, I was reminded of what happens when one “assumes.” Effective May 1, 2018, the California Supreme Court required e-filing under its Rules of Court (Rules 8.70–8.79), unless there is a motion to excuse the e-filing. Part of the benefit of e-filing, however, is lost because counsel must also submit paper copies for each electronically submitted document. The ready availability of cloud-based systems should eliminate the need for all paper submissions, removing another layer of cost to the lawyer or legal operation that is effectively billed out to the client. At the time I wrote this article, even our local San Joaquin County Court had not fully adopted the time-saving, cost-efficient e-filing system.

For the purposes of having some empirical evidence to support my position, I posted a Facebook poll in a legal group to which I belong. Only 42 percent of respondents (all practicing lawyers) have e-filing available in all jurisdictions in which they practice, 29 percent of respondents have e-filing in some jurisdictions, and 29 percent have no e-filing options. Respondents for this poll are spread across U.S. jurisdictions from California, Florida, New York, Texas, and more. We can do better on the e-filing front.

Low-Hanging Fruit

Southern California–based attorney Mitch Jackson, of Jackson & Wilson, has recommended the use of video conferencing. Mitch and I agree on this front. It appears CourtCall offers this service. Personally, I am a big proponent of live video interactions and believe courts should take advantage of this readily available technology, less for the lawyers and more for the clients. In so many instances, a client should not have to be present in court. In fact, he or she should not have to be present in most instances, except for trial, perhaps, although I would like to think trial can also be accomplished via Skype or Zoom in the not-too-distant future. If depositions can be conducted via video—which courts should explicitly require for efficiency and cost effectiveness—so, too, should all court hearings requiring client attendance.

Let us take the example of child custody hearings. This is an inherently emotional time for parents and children. The burden of “going to court” with all its psychological implications only serves to add stress to a potentially volatile situation. Our adversarial system of resolving disputes often results in further agitation, making courtroom visits all the more taxing. What if we removed one of the factors of this stressful situation by allowing judges, lawyers, and parties to log in to the courtroom from home or a private space at their place of employment? Parents would take less time off work. Travel costs for all parties would be eliminated. Courtroom space would then be freed up for trials. Judges could mute belligerent parties, and threats of violence, acts of violence, and potential contempt of court orders would be reduced. There is a plethora of reasons to move to video conferenced hearings. I urge the reader not to be a naysayer but an advocate for change. This is part of the cultural shift the justice system requires.

Video conferencing is also recommended by Tamara McCormic, a criminal justice legal advocate from the Orange County (California) Associate Defender Office. Addressing the video conferencing issue from the criminal perspective, Tamara recommends “increased use of video conferencing services for hearings and trial testimony to be carried out at a distance without having to transport prisoners and detainees to court. Jury selection could also be conducted this way, thereby increasing juror compliance.” Think of the cost savings by allowing prisoners to conference-in for their hearings.

It takes me an average of seven minutes to drive from our office to the courthouse. Then I need to find parking, make it past security, and find my way to the courtroom. All in all, I probably need to give myself 25 to 30 minutes of lead time, time that is almost completely unproductive, unless I’m making phone calls. Travel back to the office might take only 15 minutes. If we multiply that over a span of time, counselors, especially litigators, and clients are wasting precious time. Why are we doing this?! Georgia appellate attorney Ryan Locke and I are in complete agreement on this topic. When asked for his input on this issue, he responded, “The whole idea of a court is so antiquated. Why do we need a physical space at all for 90 percent of what we do? Even for trials—why does everyone have to come to the judge and disrupt their entire lives?” Organizations across the world are having hugely important meetings from the comfort of their homes and offices. It is time for the law to evolve and adapt.

In April 2018 I moderated a panel for the ABA GPSolo/GLSA Joint Spring Meeting addressing the issues of legal technology and access to justice. The panelists and I agreed, in large part, that cost is the biggest obstacle for consumers in accessing justice. At this point, I would be remiss in my duty as an employee if I didn’t also encourage you to use openly available online platforms such as Experts.com (for which I serve as vice president of client relations and business development). Access to justice, before it was commonly referred to as A2J, has been a guiding principle for our company since its inception.

The costs associated with locating an expert witness and paying an unjustifiable markup on each billable hour, through a broker, are simply unnecessary. Why cost you or your client 30 percent to 50 percent more on every billable hour when there are more economical alternatives? You can search Experts.com and contact and negotiate with the exact same experts for no additional cost. This is low-hanging fruit, yet lawyers still call me every week asking how our service works and expecting to have to pay a markup or a location fee. It works like any search engine without someone brokering the transaction. Type in your query and click search. You will see a list of experts, a summary of their expertise, and their contact information. Communicate with them directly. Save yourself and your client thousands of dollars by searching our website.

Adopting Better Technology

It’s time to get creative! Time to change our cultural perspective and open our minds to change! Just because the title of this article includes “better technology” does not mean the technology has to be revolutionary. To provide some valuable ideas on this front, I reached out to several of my colleagues in the legal and legal technology space and received some amazing feedback from practicing lawyers as well as legal technologists. Unfortunately, I will not be able to include ideas from everyone who provided insight.

Allow me to ease you into some things courts can provide to increase access and improve the efficiency of legal service delivery. Sarah Glassmeyer, lawyer and project specialist manager at the American Bar Association, recommends, “At a bare minimum, fillable PDFs for forms. If you want to really go wild and crazy, use some sort of expert system to guide users in filling them out.” Most of these forms should already be digitized at this point, and legal consumers should be able to fill them out online and print them before ever visiting the courthouse. Even better, they should be able to fill them out and submit them all online. Now, Sarah’s wild and crazy idea of “expert assistance” is intriguing. Together, we came up with the uninspiring phrase “form assistance.” This is doable. This form assistance can be done via video guidance. When you need to replace a small, inexpensive part on your vehicle, don’t you visit YouTube? I do. Within a few minutes I locate my exact model of vehicle and a “how to” video on replacing the part. Why would filling out legal forms be any different? Start small. Court clerks will be able to tell you in about ten seconds which forms are regularly submitted incorrectly. Build out the video tutorials from the most problematic forms. Use the video to walk the consumer through the form, step by step.

Josh Blandi, founder and CEO of UniCourt, Inc., has extensive data at his fingertips from hundreds of courts across multiple jurisdictions. Josh has provided me with detailed steps courts can take to improve access to justice by improving access to data. Access to this data would allow legal technology companies to better serve the legal community. His insights are summarized as follows:

The courts are totally dependent on a few companies who produce substandard case management (CM) and electronic case files (ECF) just good enough to keep courts scared enough not to move off them, but they are never really interested in providing a better experience for the public, court staff, litigants, or attorneys. These products are proprietary platforms where no one can improve them. Courts are totally at their mercy.

If courts really wanted to improve access to justice, they need to get off these systems and move to open-source CM/ECF systems. Every time these open-source systems are deployed with a court, it’s a better build, and every court would get the benefit. It could pretty much totally eliminate the need for so many archaic practices and serve as a permanent record accessible to all.

Some of these suggestions probably need to be addressed at the state contracting level. State court vendor agreements and bidding procedures may need improvement to allow new vendors to offer improved services. Government contracts are lucrative, and the dominant vendors are going to fight to keep the status quo. On the other end of this is training court staff, judges, lawyers, and the public on new platforms. Although, from my own experience, many of the legal technology solutions I’ve been lucky enough to demo have user-friendly interfaces.

Along the same lines as the suggestions by Josh Blandi, a common theme among legal technologists is open access to court application program interfaces (APIs), allowing legal technology companies access to court data in real time to improve the delivery of legal services. Is this in the best interest of technology companies? Absolutely. If the information is accessible to such companies, it is also accessible to the public, improving access to public legal information. Again, for the sake of efficiency, there should be no need to physically visit the court clerk’s paper file to find something I can get digitally, nor do I want to transit to the courthouse to use their computers. Add the information to an open-source, cloud-based system and allow the public and technology vendors to freely access the information.

You may have noticed this section has not really focused on “better technology.” Much of the technology already exists. However, better technology can be created, which you can later adopt, if you allow access to the data with an open API. Rather than massive onsite software implementations, courts will be able to subscribe to cloud-based software-as-a-service (SaaS) providers to do everything existing vendors provide. As an example, Experts.com has been online since 1994, and we have had a cloud-based “case management” offering for attorneys and expert witnesses since 2000. It is well past time for courts to adopt such readily available technology.

If your local court is not using these options, get together with your court and bar association and work to have them instituted locally. I make this statement fully aware that funding issues may prevent implementation of these technologies in some jurisdictions. However, innovative thinking by lawyers and judicial personnel may be able to overcome the funding limitations.

An Exciting Future

For those of us following legal technology, 2018 was an outstanding year for the sector. Hundreds of millions of dollars have been invested in legal technology start-ups. Additionally, the Pew Charitable Trusts, a nonprofit organization with approximately $6 billion in assets, recently dove into the A2J space to assist low-income and underserved populations. They are currently working on the modernization of our civil legal system through technology. A recent article in their Governing magazine identifies two areas they have targeted: online legal information portals and online dispute resolution. Reading between the lines, I don’t think it is a stretch to say they will be attacking these issues with data, cloud-based systems, and video conferencing, among other tools in short order.

One takeaway I wish for the reader? Embrace the change. Until court leaders responsible for administering justice make a cultural shift of embracing technology and change, and that culture permeates the system, the legal system will continue to be inefficient, if not ineffective. It is clear we have an access-to-justice problem in the United States. The status quo is no longer acceptable. Technology is the most readily available and tactical weapon to attack the problem. Be open and willing to adopt innovation, be an advocate for transformation, and watch as our legal system is elevated to offer access to justice for all.

Nick Rishwain, JD, is vice president of client relations and business development for Experts.com and is the primary author of the company blog. He is fully immersed in legal technology professionally and personally. In his own time, Nick is the co-creator and co-host of a live video legal technology show called LegalTechLIVE (legaltechlive.com). The show has been online for more than three years and currently focuses on legal technology start-ups under one year of age. The show promotes the legal technology start-up journey. An avid dog lover, Nick is the proud owner of a seven-pound Chihuahua.

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