Just Because We Can Doesn’t Mean We Should, and Just Because We Should Can Never Again Mean We Can’tMay 21, 2020
By Bob Glaves | CBF Executive Director
That deliberately challenging title could apply to most things in our lives as we (hopefully) start returning to a semblance of normal in the coming weeks. My focus here is specifically on our courts and legal profession as the conversations about how to reopen the system get started. As much as the pandemic exposed the flaws and limitations of the system when it hit, there have been some impressive adaptations since then, and we have a unique moment in time to shape a much better future for the courts, our profession, and access to justice.
Many ivory tower types talk like we can and should just make the whole justice system virtual going forward. At the same time, we still have plenty of luddites among the bench and bar who see the pandemic as just a temporary interruption of several hundred years of a one-size-fits-all system that works just fine for them, despite the clear evidence that those “old ways” were not working for the majority of the public or a growing share of our profession.
A new hybrid approach is actually the right path as we get back to having a choice about physical presence in the courts. This pandemic experience should accelerate a clear-eyed view of when it should be a default to handle legal matters remotely, when it should be a user choice, and when it needs to be in person. And we should take the steps now to ensure the system is more resilient so that a future virus or other disaster can never again bring most of the court process to a halt.
While I have some ideas about what the new hybrid model should look like, I certainly don’t have all the answers. For now I want to suggest a framework for how we should decide what should stay, what should go, what should be added, and how it should all be mixed together to build a more perfect justice system.
Before the Fall
Back in the old days when we went to restaurants, watched live sports, music and theater, and traveled all over the world, we also went to court to handle almost all court business, even routine matters. This worked well enough for some, but increasingly was not working for most.
In delivering the keynote address for the Illinois Supreme Court Commission on Professionalism’s “The Future is Now” conference last May, Justice Mary Jane Theis talked about the urgency of rethinking the way we deliver justice. The number of cases being filed in the courts already had dropped significantly at the same time that more people than ever were coming to the court without lawyers, and the courts and our larger legal profession were behind the times in using technology and process improvement to make the system more accessible and deliver services more efficiently and affordably.
Recognizing these trends and the need for change, the Illinois Supreme Court last fall adopted a new and forward-thinking Strategic Agenda for the Illinois Judicial Branch developed by the Illinois Judicial Conference. The Strategic Agenda is a comprehensive blueprint for achieving the Supreme Court’s vision of a justice system that is “trusted and open to all by being fair, innovative, diverse, and responsive to changing needs.”
One of many specific strategies identified in the plan that has suddenly become front and center in this crisis is to “promote and enhance remote access to court services, court and case information, and court appearances.”
That Was Then
We now know the goals of the new plan are mission-critical, and the pandemic will give the efforts to modernize our court system a big shot in the arm. As Michigan Supreme Court Chief Justice Bridget McCormack recently put it: “This crisis might not have been the disruption we wanted, but it’s the disruption we needed.”
As much as the system was not ready for this disruption and largely had to be shut down, it is impressive how quickly the courts turned to using Zoom and other technologies to conduct court hearings and other court business. It is still a work in progress that thus far has been mostly limited to essential cases and other pressing matters. But we all are learning that most of the court’s functions can be performed remotely with the right leadership and the right systems in place.
As we start to transition back into a new normal, the multimillion dollar question is how much of this new way of doing things should remain part of the system.
A Framework for Developing the New Hybrid Model
The starting point for building a new “bionic” justice system is looking at the purpose of the courts.
Under the overarching umbrella of dispensing justice, the courts resolve disputes, right wrongs, and protect fundamental rights and public safety.
Within those broad categories, the issues range from simpler, lower-stakes disputes to literally life and death cases and other high stakes matters that can literally change the world. And regardless of the type of case involved, much of the workings along the way are much more mundane.
With that backdrop, the one-size-fits-all model for the court system that we have long operated with does not make a lot of sense. Many, if not most, of the day-to-day functions of the courts lend themselves well to remote, technology-based options. But for the bigger ticket hearings or trials, the traditional system works pretty well and should remain the default. And for the many people who don’t have access to reliable remote technology options or literally want their day in court, we should not foreclose that option in the new normal.
Here is my proposed framework to consider in striking the balance:
- What’s at stake?
- There is a big difference between a small claim or minor traffic ticket and a complex class action or murder case where constitutional issues are involved.
- The lower the stakes for the case, the more likely remote access should be the default, or at minimum an option for the parties.
- Has a jury trial been requested?
- There are unique challenges to jury trials and it is questionable at best whether that can work in the remote environment.
- What is the purpose of the particular hearing or transaction?
- Even within the complex, high-stakes cases, there are far more relatively simple procedural aspects than there are the big contested hearings or trials that make us all look cool on screen and in books.
- Do we really even need to have this status or hearing at all, and if yes, should the default option become remote access?
- How often do we really need to see someone in person to handle the transaction or make the decision?
- This is where the rubber really meets the road, and should be the question we ask about every part of the court process.
- Do we really need to appear in person to file paperwork or for a routine hearing?
- Are the court’s systems up to the task of being practical solutions for all litigants?
- To the extent they are not, this should be a call to action for the necessary infrastructure investment and training rather than excuse.
- Every court should be able to accommodate remote hearings in whole or part when the matter is otherwise appropriate for it. This includes the capability to have remote interpreters, remote witness participation, access to the electronic docket, and electronic recording. Many courts in Illinois and throughout the country already have these capabilities, and there is no reason it should not be standard in all courts.
- If one party wants or needs to appear remotely, can the court accommodate it where others are in the courtroom? It should be the litigant’s choice and the fact that one party wants to appear in person should not impact access for others in the case.
- Remote access should be an option that is available free of charge to all parties and available through flexible means depending on the needs of the litigant (video or phone options at minimum).
- Are the court’s remote access systems accessible to people without lawyers or who have other needs?
- Many people still do not have good technology access or otherwise are unable to use online systems.
- Until we have an e-filing system that is accessible to everyday people—and we remain far from that in Illinois right now—there need to be reasonable alternatives for people to file cases and receive notices in the proceedings without having to come to court.
- There needs to be clear communication and guidance from the court to ensure litigants know about remote options and how to request them.
- There should be remote facilities in the courthouse and with community partners where people without technology access or acumen can get assistance to participate in the process.
These questions don’t all lend themselves to bright line solutions, but are a starting point for considering how we can thread the needle to have the best system possible.
And even though in-person hearings and trials should remain an important feature of the new and improved hybrid system, we should develop workable backup plans now that we can quickly shift to if/when the next crisis hits. It is questionable at best whether jury trials can be included under that umbrella, but this experience should leave a legacy that the system should never again shut down because we can’t physically come to the courthouse.
Charging Ahead to a Better Future
We can’t go back to the way things were—it was becoming increasingly unsustainable. But we should not throw the proverbial baby out with the bath water either.
As an enlightened private equity executive recently put it in Crain’s Chicago Business: “The goal is not to return to a “normal” that wasn’t working for far too many. The goal should be to imagine, and create, a new normal that is better, fairer and more just for everyone. There is no going back.”
Those words ring true for the courts, our legal profession, and our broader system of justice. Let’s not waste this opportunity to build that better system.