Deconstructing Access to Justice, Part Five: The Integral Role of the Courts

As we hit the home stretch of this series, I want to focus on the integral part the courts play in access to justice because the courts are fundamental to the ultimate success of all other interventions.

The courts have multiple key roles they play in ensuring access: as the arbiters of justice in individual cases, in the way they manage and oversee the court process and associated policies, in their leadership in making the case for the necessary resources and supports to deliver justice, and as the regulators of the justice system and the practice of law.

Each of these roles could easily be the subject of their own post (if not multiple posts) and for now, I want to focus on some broader principles we all should embrace that build on the many advancements courts already are making in Illinois and beyond to improve access.

Defining Access to Justice: The Critical Starting Point

As with the prior chapters in this series, we need to lead with our definition of access to justice, as it is the fundamental starting point for determining the level of legal help that people need to get a fair outcome and is the lens the courts should use as well:

Everyone facing a legal issue (1) has timely and affordable access to the level of legal help necessary for them to get a fair and efficient outcome on the merits of their legal issue, and (2) objectively can believe they were treated fairly in the process.

As this definition makes clear, getting the right result on the merits of course is necessary for someone to receive justice, but when the stakes are higher, it matters just as much how that result is delivered, or procedural justice.

Courts can never lose sight of the fact that access to the right level of legal help is crucial on both fronts. While courts have a unique role to play in delivering procedural access to justice, ensuring litigants have access to the right level of legal help is just as important.

Improving Procedural Access as a First Step

The obvious place to start for the courts to carry out their central role in access to justice, and the area where we have seen some real advances in recent years after the jolt of the pandemic, is improving efficiency and access to the court process.

Recognizing the noteworthy recent progress on this front, our court system remains far more complicated than it needs to be, making access more challenging and expensive than required for the many bread-and-butter legal issues people face in the courts.

Continuing to eliminate unnecessary complexity and delay through steps like active case management, reducing unnecessary hearings, and simplifying court forms and the court process are low-hanging fruit for the courts to improve access.

Providing more procedural assistance, both in the courts and remotely, is an important corollary to these continued streamlining and simplification efforts. Programs like Illinois Court Help and Illinois JusticeCorps are two great examples that are making a big difference in helping people navigate the system.

Improving efficiency and access to the court process by incorporating hybrid and remote proceedings and modernizing court practices is another key step. The courts made tremendous progress on this front during the pandemic and we need to build on that to continue to improve access.

Procedural Access is Just the Start

As much as the above steps by courts are crucial to accessing justice and making a big impact, the court’s responsibility does not stop at procedural access.  When the stakes are higher, it is just the start. This is where the continuum of legal help comes in, focusing on what people need to level the playing field and get a fair outcome.

While the courts cannot on their own ensure people have realistic access to the level of legal assistance they need, courts need to be honest about what are and are not real solutions along this continuum for delivering access to justice.

As just one example, in an eviction case where there generally are wide disparities in representation and power dynamics between landlords and tenants, simply assisting tenants in filing the necessary forms and participating in the proceeding is rarely enough to actually level the playing field and ensure someone gets true access to justice. The tenant may still get the right outcome on the legal merits, but that is not a fair process by any objective measure when the other side almost always has representation and experience with the eviction court process.

This does not mean every tenant should get full representation. As I noted in last month’s post and in a recent op-ed, access to legal advice or limited-scope assistance is more often the right level of service on the continuum to ensure a fair process and outcome.

This is just one example to highlight a critical point: as integral as procedural assistance is in the overall solution, we cannot just say we gave the tenant procedural help and thus gave them meaningful access to justice.

Making Legal Assistance More Affordable and Accessible

Accepting that procedural access is not enough and that courts need to be honest about that, the typical pushback is that courts on their own rarely can ensure people in need have access to legal assistance. But there is a lot that courts can, must, and, in many cases, already are doing to make legal services more accessible. Recognizing this fact, the Illinois Supreme Court’s Regulatory Objectives include “delivery of affordable and accessible legal services” as one of the core tenets of the Court’s regulatory mission. 

For starters, many of the steps for improving the court process noted above are crucial to making it more realistic and cost-effective for lawyers to provide critical legal services for people in need. Remote and hybrid access for routine and lower stakes court hearings enables lawyers to efficiently reach and assist more people in need. Active case management that moves cases along and eliminates unnecessary status hearings further increases efficiency for lawyers. Simplification and related measures make it easier for people to handle procedural aspects of their case on their own so that lawyers can more cost-effectively provide limited-scope legal assistance for key parts of the case.

Courts also can actively encourage and support limited-scope representation to ensure it is a realistic option for appropriate matters.

And courts can take steps to modify the court process and incorporate the continuum of legal assistance, social services, and alternative dispute resolution options for legal issues like eviction, consumer debt, and domestic relations where there are high proportions of people without lawyers. The Cook County Legal Aid for Housing and Debt program is a good example of what is possible on this front, making investments in legal aid and other services that are integrated into a modified court process to help level the playing field and encourage early resolution of cases.

Responsibly Embracing Technology

Technology is the next place where courts have a critical responsibility. While the potential for transforming access to justice is often wildly overstated, AI and technology do have an important and growing role to play in the larger solution.

There are many examples where this either is already happening in the courts or has huge potential, including:

  • The use of remote and hybrid proceedings for court matters outside of merits hearings and trials.
  • Electronic court forms and filings, with sufficient assistance for people without lawyers.
  • Chatbots that help people find information on their court case, helpful resources, and appropriate referrals for legal services.
  • Remote interpreters who can be available in court in close to real-time.
  • Electronic records of court proceedings.
  • Online dispute resolution for lower stakes matters and other matters where the power dynamics between the parties are relatively equal.

Each of the above examples underscores why courts need to prioritize responsible technology leadership, as they all significantly improve procedural access, access to necessary legal services, and efficiency of the overall court process for everyone.  

Embracing Access to Justice Front and Center in the Court Role as Regulators

Access to justice is the centerpiece of the Illinois Supreme Court mission and strategic plan, and embracing that mission in their regulatory role is the other core leadership responsibility for the courts on this front.

As noted above, in their role as regulators, the Illinois Supreme Court is one of many courts that have adopted regulatory objectives that identify access to justice and the “delivery of affordable and accessible legal services” as central planks. However, Illinois is also one of many states that has a long way to go in appropriately prioritizing these central planks.

Courts need to recognize in their regulatory roles that legal services have become unaffordable for the vast majority of the general public (extending well into the middle class), and that we remain a long way from equal access to justice today. Modernizing the Rules of Professional Conduct with these principles in mind is a crucial element of the court’s responsibility for access to justice.

There is also much the courts can do to reimagine the parts of our court system where the traditional process that works so well for complex disputes may not be the best process for other types of bread-and-butter legal problems that people face in the courts today. More on this idea in a future post, but for now I recommend considering some of the thought-provoking suggestions that legal sector analyst Jordan Furlong has offered, including rethinking the role of the courts for many types of legal issues and incorporating other types of dispute resolution mechanisms.

The Only Way to Reach the Promised Land of Access to Justice for All

When we put this all together, it may sound like an overly ambitious agenda for courts to realistically accomplish. But this is no pipe dream; we can find examples of every one of the above steps already being carried out by courts around the country and in Canada, and in many instances, right here in Illinois.

Courts alone cannot ensure access to justice—we all share in this responsibility and need to do our part—but there is no way we can reach access to justice without the courts fully embracing their leadership responsibility on this front.