Just Because We Can Doesn’t Mean We Should, and Just Because We Should Can Never Again Mean We Can’t—Part Two

By Bob Glaves | CBF Executive Director

Doing a sequel is a fraught exercise. For every classic movie like the “The Godfather” or “Die Hard” that nailed it a second time, there are many more examples like “Caddyshack” and “Airplane” where an ill-advised sequel did no justice to the original masterpiece.

With knowledge of that risk, it feels particularly timely to do a follow-up to my post last May, one of the more popular ones in Bobservations history (a low bar, yes). It has only become clearer over the past ten months how critical it will be for remote access to remain a central feature of the court system for the long haul. At the same time, however, we have also learned some things during that time that will be key to making a hybrid system work effectively.

Flashing Back to Last May

When I wrote my original post on the “bionic” court system of the future back in May of 2020, the pandemic was still in its early stages, though I naively thought then we would be coming out of it soon. In hindsight, I was obviously a year too early on that prediction, but now that we finally do seem to be on the right track, the prescriptions I laid out in the post remain pretty solid.

I encourage you to read the initial post, again or for the first time, and I won’t repeat the whole thing here. A few high points are worth noting though to frame this follow-up (kind of like Rocky II starting with the fight scene that closed the original classic):

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…

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.

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.

With that backdrop, the case has only grown stronger for a new and improved hybrid system where remote access is a regular feature. We also now have a better idea of what will be necessary to make it work for the long haul.

Remote Access is Critical for Access to Justice

Remote access to the courts has proven to be a crucial feature in making the system more accessible to the public. People do not have to take off a full day of work to appear in court or do routine court business, and for those who have particular challenges in getting to a courthouse (e.g., people with certain disabilities, detained individuals), it can be a lifeline.

We also have seen firsthand how critical remote access is for lawyers to be able to connect with and serve people in need more efficiently, accessibly, and affordably.

Removing unnecessary travel for lawyers to serve people in harder to reach areas makes it possible for pro bono and legal aid lawyers to serve more people more efficiently, particularly for limited scope services. It also makes it possible for lawyers in private practice to provide those services more affordably to people who otherwise too often find themselves priced out of the market.

The new Cook County Legal Aid for Housing and Debt program is a great example of the promise of remote access, providing services to scores of people with eviction and consumer debt cases for courts throughout Cook County that would have been prohibitively expensive and logistically complicated were we trying to do all of that in person.

Expanding Community Partnerships for Remote Access

As much as we know remote access to the courts works for most people most of the time, for some of the most vulnerable people in our communities it can actually be an impediment to access right now.

Most of us in the legal community now take for granted that we can work from home or elsewhere almost on demand, because we have access to a computer or laptop, good Wi-Fi, the knowledge to use all of those tools, and (usually) a space with enough privacy to handle sensitive matters remotely.

However, that is not the case for everyone, and it is the very people who are most likely to be marginalized and struggling right now who are most likely to face these hardships.  And that is untenable; remote access should enhance access to justice, not frustrate it.

There are two basic additions that we need to build into the system, now and in the future, to bridge these gaps.

First, we need to create partnerships with libraries, government offices, and community-based organizations where there are “Zoom kiosks” that people can easily access in their own communities with friendly, knowledgeable people who can help them. The courts already are creating these spaces within the courthouses themselves, but we need to expand our thinking to include other community partners.

Second, to increase the availability of trusted community partners to help people in need navigate the procedural hurdles to remote access, we should formally recognize new categories of trained individuals in the community who can serve similar roles to what Illinois JusticeCorps and other court navigators already do within the courthouses.

The CBA/CBF Task Force for the Sustainable Practice of Law & Innovation recently made a proposal to the Illinois Supreme Court to do just that by recognizing a new “community justice navigator” function. If this proposal is adopted, these trusted individuals could help people find and file the right court forms, understand and connect to their Zoom hearing, find free and affordable legal assistance, and provide other information about the court process.

Modernizing the Court Infrastructure

As noted in my initial post on this subject, as much of a boon that remote access is to access to justice, it is not the solution for all cases or for all people. As a result, the other crucial undertaking to make this new and improved system work is to upgrade the infrastructure within the courts to handle a new hybrid model where the judge and some lawyers, parties, witnesses or other stakeholders may be in person in the courthouse while others appear remotely.

For all the benefits of remote access, there are some court proceedings that really need to be in person (e.g, jury trials), but where some of the participants (witnesses, interpreters, or even parties) may want or need to appear remotely. There are also going to be many people who prefer to attend court in person, either because they literally want to have their day in court, find it more convenient to get to the courthouse than have their matter heard remotely, or want to take advantage of in-person help desks and resources that are centralized in courthouses.

For these reasons, our new system needs to accommodate for this hybrid reality. Many courtrooms already are equipped with Polycom or similar technologies and have the requisite bandwidth to make this hybrid system work. Unfortunately, that is not the norm for all courthouses today, and modernizing the court infrastructure to do so needs to be a top priority. The long-term savings and increase in access more than justify the expenditure, and it is an environmentally sound approach as well as it will limit unnecessary travel for in-person appearances.

The Way Forward

I will close this sequel with the same quote in Crain’s Chicago Business I used to conclude the original, because it still fits like a glove: “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.”

We have an unprecedented opportunity to create that better new normal for our legal system right now, and we can do it.