By Bob Glaves | CBF Executive Director
A picture can paint a thousand words. And sometimes a good metaphor or analogy can have an even greater impact. I witnessed a great example of that a few weeks ago when Lisa Foster, the Director of the Department of Justice’s Office for Access to Justice, took out her smart phone and used it as a metaphor for the justice system as the frame for some really thought-provoking remarks.
Ms. Foster demonstrated how she could use the camera on her phone to point it one way and take a selfie, or turn it the other direction and take a picture of the people in front of her. In the justice system, she keenly noted, we take selfies. That is, we look at the system from the perspective of the lawyers, judges and court personnel who are inside of it, not from the perspective of the people who rely on the system for access to justice.
While Ms. Foster was talking about our legal profession as well as the courts, her metaphor resonates in particular when we look at the court system and how it is presently designed and operated.
Our court system was designed for a different era, when the premise was both sides would be represented by lawyers trained in the law and procedure, and judges and court personnel could reasonably expect the people appearing in front of them could navigate the system accordingly. It is a system that still works pretty well when those assumptions hold true and both sides are represented. However, today that is becoming more the exception than the rule in the Circuit Court of Cook County and other state courts, where more than half of the people come into the system without lawyers.
A number of efforts already are underway to make the system more user-friendly and accessible for the growing number of people without lawyers, and moving that ball forward has been one of the CBF’s priorities for many years now. Even so, we are still just scratching the surface of the potential to reshape the justice system for today’s world. Looking at the issue through the lens of the people using the system rather than through our own selfie lens, it becomes clear just how much more we can and must do on this front.
Simplifying the System
Navigating our court system is a daunting task for a someone who is not a lawyer when you consider the complex rules and procedures and the unusual terminology. The first thing all of us connected to the court system should do is take an inventory to determine how much of that is complicated because it needs to be, and how much is complicated just because we made it that way in a different time.
For complex business and tort litigation, I think we’ll find most of those complicated rules and procedures are warranted based on the complex issues being decided. For the great majority of bread and butter issues that bring regular people into the court system though, we will be hard pressed to justify why it is so complicated or why we need to use all the legalese that is second nature to us as lawyers and judges but completely befuddling to anyone else.
Mark Marquardt of the Lawyers Trust Fund of Illinois put it quite well when he questioned whether we should be lowering the dinner table or teaching people to eat while balancing on stilts. Most of our efforts to help people without lawyers thus far have been the latter providing them with more tools and assistance to navigate complex court processes rather than taking a hard look at whether it needs to be that complicated in the first place.
We all should look at the court process from the first point of entry all the way to its conclusion and aftermath from the standpoint of the people who need our help. From the time someone gets served with papers or visits the court website to see how they can file a case, to the final order in a case and what happens to the parties after that point, and everything in between. This is almost completely within our power as lawyers and judges to simplify this process for the bread and butter cases in the system, and all of the other interventions to improve access to the system will be far more efficient and effective as a result.
Maximizing Technology and Remote Access Capabilities
Another area where we are still just scratching the surface of the potential is in the utilization of technology and associated opportunities for remote access to the system.
This starts with fully implementing electronic filing and record-keeping, which while still a novelty in Cook County already is well established in the federal courts and many other state courts in Illinois and elsewhere in the country. In this day and age, there is no reason that people should have to come to the courthouse just to file court papers or accomplish other routine business.
There is much more that can be done to enable and promote remote access to the courts as well so that people don’t have to come all the way to court for routine hearings. Expanding the use of remote access technologies also can efficiently and effectively connect key resources like lawyers, interpreters and court reporters with the court process. For example, when an interpreter is needed for a hearing and is not present at the court, the technology exists for an interpreter to be provided via remote video feed in a cost-effective manner, thus preventing the continuance that would otherwise have been necessary. Steps like these already are becoming commonplace in the medical profession, and maximizing their incorporation into the court system will make a huge impact in increasing access.
Another technology opportunity with great potential for improving access is incorporating online dispute resolution into the court system. Online ADR already is taking off outside of the court system through private companies like Modria, and courts in the UK and other jurisdictions have started to offer online options for resolving small claims matters. While private ADR options always will have an important place in the community both in person and online, with the ability to offer judicial oversight and enforceability of judgments, the court system continues to provide a critical function for small claims and other disputes. By offering online options for resolution of these smaller cases, the courts can greatly expand access to the system.
Expanding Assistance for People without Lawyers
While the above steps would greatly expand access to the system for regular people, there is a lot more we can do to help people navigate even a simplified and fully tech-enabled system. And for many cases there remains no substitute for having the assistance of a good lawyer to reach a fair and just result.
Already, there is plenty of evidence that simply providing procedural and navigational assistance for people without lawyers makes a big difference in making the court process more welcoming and less intimidating. Expanding the successful JusticeCorps model and better utilizing court personnel to provide helpful information and procedural guidance to court patrons will go a long way towards improving access.
There are a number of promising models for lawyers to effectively provide legal help to people without lawyers using limited scope representation that can greatly expand access. A number of successful court-based advice desks and the Settlement Assistance Program in the federal court here are just two examples. There is much more room to expand the availability of these types of free programs and for the private bar to offer affordable limited scope options to people without lawyers.
Many people will still require full representation to achieve justice, and we can never lose sight of the ongoing need to shore up funding for legal aid and for the private bar to make full service options more affordable for moderate-income people.
A Top Priority
Looking at access to the courts through the lens of regular people who need access to justice rather than through our selfie lawyerly lenses, it really jumps out how much more we need to do to make the system more user-friendly and accessible.
A number of entities already are working towards these goals here in Illinois and making some important strides, including the Illinois Supreme Court Commission on Access to Justice, the Civil Justice Division of the Administrative Office of the Illinois Courts, and the Circuit Court of Cook County Pro Se Advisory Committee. We still are just scratching the surface of what is necessary though.
While taking these steps alone won’t solve the entire access to justice challenge, the system will be far more efficient, effective and accessible for everyone if all of us connected to the court system make this a top priority.