How the Judiciary Has Driven Systemic Innovation During the Pandemic

This article briefly summarizes intensifying momentum within the judiciary to adopt systemic reforms in both civil and family courts. It highlights key findings from a report called the Landscape of Domestic Relations Cases in State Courts,³ and examines other findings that the judicial reformers minimized. Next, it considers the judiciary’s new approach to differentiated case management based on “pathways” and “triage”; explains how Connecticut, the first “demonstration” state, is incorporating new processes; and identifies practical shortcomings revealed during the initial implementation.⁴ Finally, it explores how the judiciary is driving systemic innovation, and the importance of successful effectuation.

I. Access to Justice Deficiencies Motivate Innovation

A. Improving Court Operations

Innovators within the judicial branch in many states have attempted to improve access to justice and reduce unmet legal needs for decades, with mixed results.⁵ Past efforts to improve access to the courts mostly focused on human labor solutions to problems, such as by supporting increased funding for legal services organizations or encouraging pro bono service by lawyers.⁶ Past failures to improve access to justice using traditional legal profession responses, coupled with budgetary constraints, help explain the judiciary’s increasing willingness to consider information technologies and new approaches.⁷

State courts’ exploration of emerging technologies developed toward the end of the 20th century. In 1998, the Conference of State Court Administrators (COSCA)⁸ urged member state courts throughout the United States to join a national effort to exchange data and integrate information systems in ways that would improve case management.⁹ COSCA issued a position paper on information sharing in 2002,¹⁰ followed by joint resolutions adopted by the Conference of Chief Justices (CCJ)¹¹ and COSCA that called for public access to electronic court records and removal of Social Security numbers from court records.¹² In 2004, COSCA joined with the National Association for Court Management (NACM)¹³ to issue a policy statement for court acceptance of information technology.¹⁴ It established a “nine part agenda” that emphasized serving the court’s business needs, stressed the importance of effective implementation, and addressed security and privacy issues.¹⁵ A series of incremental resolutions followed over several years, including one from the CCJ entitled “The Emergence of E-Everything.”¹⁶

Improving the judiciary’s use of information technology was part of a larger effort to improve access to justice and court operations. In 2015, the NCSC published a report entitled The Landscape of Civil Litigation in State Courts,¹⁷ which studied contract, tort, small claims, and other nonfamily civil matters. The Landscape of Civil Litigation determined that nonfamily civil litigation in state courts “takes too long and costs too much,” which undermined access to justice.¹⁸ Court dockets were dominated by “lower-value contract and small claims” cases that rarely were adjudicated on the merits.¹⁹ Courts were using outdated automated case management systems, and they were giving self-represented parties (involved in 76% of cases) and lawyers too much control over the pace of litigation.²⁰ The Landscape of Civil Litigation lamented the decline in funding for court systems and observed that courts were expected to dispense more justice using fewer resources.²¹

B. The Call to Action in Civil Cases

One year later, the NCSC published its influential Call to Action: Achieving Civil Justice for All.²² That report built upon the Landscape of Civil Litigation and criticized the “cost, delay, and unpredictability of civil litigation” under existing court processes.²³ It recommended that courts update differentiated case management processes to assign cases to three “pathways,” which it designated as “Streamlined,” “Complex,” and “General.”²⁴ Courts should better match their broad collection of available resources to the needs of each case, based on “right-sized” case management and a “triage” process that assigns cases to pathways.²⁵ Courts should adopt technology and focus their attention on moving high-volume and uncontested cases more quickly,²⁶ and better serve the “[v]ast numbers of self-represented litigants. . . .”²⁷ The legal system could not continue to “use comfortable old methods to administer justice. . . .”²⁸

The CCJ and COSCA strongly endorsed the Call to Action.²⁹ Lawyers and parties would be expected to cooperate as courts took greater control over managing cases, including assigning cases to pathways.³⁰ “Effective rules, procedures, business practices, and innovative uses of technology are especially critical to ensure just, speedy, and inexpensive resolutions in uncontested cases and cases involving large asymmetries in legal expertise.”³¹ States should design courthouses that incorporate emerging changes in technology.³²

Six months before the CCJ and COSCA endorsed the Call to Action, the American Bar Association (ABA) House of Delegates approved the ABA Model Regulatory Objectives for the Provision of Legal Services (Model Regulatory Objectives).³³ The Model Regulatory Objectives were drafted by the ABA’s Commission on the Future of Legal Services not long before it released its innovative and controversial 2016 Report on the Future of Legal Services in the United States.³⁴ The Model Regulatory Objectives provided guidelines for state courts to regulate nontraditional legal services providers, and discouraged blanket exclusions of nonlawyers based on unauthorized practice of law rules.³⁵ The CCJ agreed, and resolved that state courts should consider broadening their regulatory frameworks to nonlawyers who provide legal services.³⁶ Expanding the regulatory framework would give courts greater flexibility to implement the Call to Action.³⁷

In 2017, the NCSC advised state courts on how to automate court processes so that information technology could help assign cases to one of the three pathways.³⁸ Pathway assignments should be data-driven and involve less human discretion. Noting that “court records are presumptively open to public access,” NCSC reasoned that the openness policy should extend to court data; this position was also supported by COSCA.³⁹ This change would facilitate the use of information technologies throughout the judiciary.⁴⁰

II. The Judicial Eye Turns to Family Law

A. Surveying the Landscape of Domestic Relations Cases

National judicial branch organizations next would study how to tailor the Call to Action to family law cases. The NCSC joined in partnership with the Institute for the Advancement of the American Legal System (IAALS)⁴¹ and the National Council of Juvenile and Family Court Judges (NCJFCJ)⁴² to launch the Family Justice Initiative (FJI).⁴³ The FJI would operate in collaboration with the CCJ and COSCA to build upon the research contained in the Landscape of Civil Litigation and the policy directives in the Call to Action.⁴⁴

While the FJI was ramping up its operations, the NCSC issued a 2017 white paper that examined existing case management systems in family courts throughout the United States, titled Triage Protocols for Divorce and Child Custody Cases.⁴⁵ The white paper noted “tension between what should ideally be done, what courts can afford to do, and what litigants want,” and that courts may need to “identify[] ‘good enough’ solutions” that are more feasible due to resource limitations.⁴⁶ “As long as budget constraints exist, a court that provides more services to one case is essentially reducing services in another case, so some sense of cost/benefit is definitely helpful in making these kinds of service and process tradeoffs. . . . This white paper leans toward the good enough approach. . . .”⁴⁷

Triage Protocols observed that many existing differentiated case management processes treat all cases as if they are headed for trial, and then try to resolve those cases as quickly as possible.⁴⁸ By contrast, a pathways or “track and triage” approach would match cases to an appropriate amount of court management, directing cases toward settlement and recognizing that most cases will not end in trials.⁴⁹ Research showed that some states used a hybrid approach, in which matters were triaged to add or subtract services based on the needs of a case. A case could be assigned to mediation, or assigned services to address issues such as domestic violence, substance abuse, or parental conflict.⁵⁰

Connecticut’s triage screening approach emphasized “conflict, violence, and safety.”⁵¹ The Triage Protocols observed that this protective emphasis resulted in directing 41% of triaged cases to comprehensive evaluation, 17% to focused evaluation, 27% to mediation, and 15% to conflict resolution conferences.⁵² The white paper does not indicate what percentage of all Connecticut family cases were triaged but observed that 58% were directed to a “contested heavy track” (the comprehensive and focused evaluation services) while 42% were assigned to a lighter track (the mediation and conflict resolution conference services).⁵³ As discussed later, the FJI (now the Cady Initiative for Family Justice Reform) focused its attention on implementing new procedures in Connecticut, and presumably success will be measured in part by the performance of courts in that state.⁵⁴

In 2018, just one year after its creation, the Family Justice Initiative issued a report entitled The Landscape of Domestic Relations Cases in State Courts.⁵⁵ It examined the characteristics of 147,436 family matters disposed of between July 1, 2016, and June 30, 2017, with data gathered from courts located in urban areas in 11 states.⁵⁶ The total populations of the counties ranged from 758,616 (Milwaukee) to 8,164,241 (Los Angeles), and four of the participating courts accounted for 74.6% of the sample size (109,934 of 147,436 cases).⁵⁷ The FJI recognized differences between urban and rural courts, and explained why it relied on data collected from urban courts.⁵⁸ The NCSC requested 46 data elements from participating courts and supplemented participants’ responses by interviewing court administrators.⁵⁹

Of the total sample, 76.1% of the cases were classified by courts as “Divorce petitions,” 10% as “Parental Responsibility cases,” and 13.8% as “other domestic relations” matters.⁶⁰ At least 46.3% of the cases involved minor children.⁶¹ The average caseload per judge ranged from a high of 4,226 in Mecklenburg to a low of 240 in Salt Lake County.⁶² There was at least one self-represented litigant in 72% of the cases, though this varied from 33% to 86% depending on the county.⁶³ The FJI cited research showing that self-represented litigants “struggle with numerous facets of the process: forms and paperwork, compiling and presenting evidence, understanding what to do at various stages of the process, and participating in hearings and trial.”⁶⁴

A key data element in the FJI study was a yes/no question to determine whether a case was contested or uncontested.⁶⁵ The report recognized that this was a nuanced variable; for example, some cases that are contested in the pleadings stage may be resolved and go to judgment as uncontested.⁶⁶ Based on this yes/no variable, 64.3% of cases were uncontested at the initial pleadings stage.⁶⁷ A significant portion of all cases had “no meaningful court involvement” in the form of pretrial conferences or in-court hearings of any kind.⁶⁸ Yet, the mean time to disposition between contested and uncontested cases was not significantly different. In what may be the most cited finding in the report, in that it appears in a subsequent CCJ resolution and is cited in connection with implementation efforts, the mean time to dispose of an uncontested case was 337.61 days, whereas the mean time to resolve a contested case was 341.05 days—a mere 3-day difference.⁶⁹ That is, at the mean it takes almost the same amount of time to resolve contested and uncontested cases.

The data are more complex than this influential finding, and it deserves additional analysis. The “mean” is the average number of days a case takes to resolve, whereas the “median” is equivalent to the 50th percentile. The FJI report observed: “Because cases with extreme times to disposition can distort comparisons of averages, using the median time to examine the differences in time to disposition provides a less biased comparison.”⁷⁰ At the median, it took 147 days to resolve an uncontested case.⁷¹ It may take too long to resolve an uncontested case, but the time to resolve an uncontested case at the median was 190.61 days fewer than at the mean. Outlier or mischaracterized “uncontested” cases may explain the difference between the mean and the median number of days to resolve, though the report does not explore these data. Notably, at the 75th percentile, it took 252 days to resolve an uncontested case, which is 85.61 days fewer than at the mean.⁷² This indicates that a small percentage of “uncontested” cases distorted and inflated the mean. The data also demonstrated that the median time to resolve a “contested” case was 196 days.⁷³ High-conflict cases may explain the 145-day difference between the mean and the median for contested cases. Curiously, at the 25th percentile, it took less time to resolve a contested case than an uncontested case: specifically, 86 days versus 90 days.⁷⁴

The Landscape of Domestic Relations Cases also produced interesting data on how the duration of a case related to representation status.⁷⁵ Both parties were self-represented in 61.9% of uncontested cases and 32.5% of contested cases; both parties were represented by counsel in 13.8% of uncontested cases and 46% of contested cases.⁷⁶ The median number of days to disposition varied by representation status: In an uncontested case where both parties were represented, the median number of days to judgment was 105, whereas in uncontested cases where both parties were unrepresented, the median number was 183.⁷⁷ By contrast, the median number of days to judgment in a contested case when both parties were represented was 254, as compared to 142 when both were self-represented litigants.⁷⁸ Oddly, comparing the duration of contested and uncontested cases when there are self-represented litigants on both sides, the median number of days to resolve contested cases was 41 days shorter than for uncontested cases. This data point is surprising, but it may demonstrate the efficacy of even a low level of judicial contact early in a case, and relatedly how confused self-represented litigants may flounder without direction.⁷⁹

The Landscape of Domestic Relations Cases identified tremendous judicial efficiency benefits that could result from helping self-represented litigants resolve their uncontested cases more quickly. The study has some limitations; additional research should be conducted using a broader sample of courts, more nuanced treatment of “contested” and “uncontested” cases, and more detailed analysis of the impact of human and automated interventions. Also, the findings could have been presented differently. For example, the data would support the conclusion that involvement of attorneys in uncontested and lightly contested cases leads to more rapid resolution, which finding would have supported more traditional judicial branch strategies that favored expanded funding for legal services and pro bono legal work. However, decades of attempts to resolve access to justice issues have demonstrated that directing more resources toward providing lawyers for low- and middle-income cases is not a complete solution.⁸⁰ Nonetheless, the data demonstrate that it takes too long to resolve uncomplicated matters. The Landscape findings undoubtedly support the judiciary’s aspirations for larger and systemic innovation to streamline, simplify, and enhance access to court processes.

B. Principles for Family Justice Reform

The Family Justice Initiative proceeded to create two reports for the NCSC in 2019. The Principles for Family Justice Reform sets forth a model process to improve case management in family cases,⁸¹ and A Model Process for Family Judicial Pathways sets forth best practices for implementation of the model case management process.⁸² This section only addresses the former, and a later section of this article analyzes the Model Process.⁸³ The Principles for Family Justice Reform establishes 13 principles, which this article quotes in bold, followed by a short summary of the recommended reform:

• Principle 1: Direct an Approach that Focuses on Problem Solving.⁸⁴ Families in domestic relations disputes come to the court seeking to solve problems. Courts should encourage self-determination, help parties reach their own solutions, and dampen the adversarial tone.⁸⁵
• Principle 2: Involve and Empower Parties.⁸⁶ Courts have the “ultimate responsibility” in domestic relations cases, but they should encourage parties to resolve their own disputes by agreement. Courts can facilitate resolution by providing information and appropriate services.⁸⁷
• Principle 3: Courts are Safety and Trauma-Responsive.⁸⁸ Well-trained court staff should screen cases using reliable tools to identify domestic violence, child abuse, substance abuse, and other complicating issues in domestic relations cases.⁸⁹ “Self-determination remains a primary goal in [domestic violence] cases, and intervention may be required to protect a survivor from the abuser’s coercion, intimidation and control.”⁹⁰
• Principle 4: Provide Information and Assistance.⁹¹ Courts should use plain language, improve their interactive forms, and provide information to litigants in multiple languages.⁹² Emerging information technologies are “creating opportunities to provide more proactive and ongoing assistance to navigate parties through the court process.”⁹³
• Principle 5: Use a Service-Based Pathway Approach.⁹⁴ This is the core practical recommendation. Court employees using automated processes should assign cases to one of three pathways at the earliest possible time (Streamlined, Tailored Services, or Judicial/Specialized).⁹⁵ Courts thereafter should manage cases based on the pathway assignment. Key data elements associated with pathway assignment include “length of the marriage or relationship, length of the separation, presence of children and their age, type of property and debt, and [the] representation status of [the] parties.”⁹⁶ Courts should use “E-filing, electronic case management systems, and data analytics” to capture key data elements very early in the case, and use that information to help triage matters.⁹⁷ However, “domestic violence, indicators of power asymmetry, and related considerations can impact triage decisions.”⁹⁸ Pathway assignment should be flexible enough to accommodate reassignment to a different pathway if circumstances change.⁹⁹
• Principle 6: Streamlined Pathway.¹⁰⁰ This pathway is administrative in nature, with court staff essentially checking the paperwork before a case goes to judgment. “The goal of the Streamlined Pathway is to provide parties with a swift resolution using minimal court resources and entry of [a] decree without [an] appearance.”¹⁰¹ “[C]ursory review of the underlying substance of an uncontested agreement may be appropriate to assess and identify any red flags that suggest power asymmetries or other issues that may impact the fairness of the stipulated agreement.”¹⁰²
• Principle 7: Tailored Services Pathway.¹⁰³ This second pathway should provide resources and services designed to empower parties to reach their own resolutions.¹⁰⁴ Alternative dispute resolution tools such as mediation and parental coordination “are at the core of this pathway.”¹⁰⁵ Cases involving domestic violence may be appropriate for the Tailored Services pathway depending on the circumstances.¹⁰⁶ Courts should consider using remote participation, advocacy support, and/or other safeguards in domestic violence cases.¹⁰⁷
• Principle 8: Judicial/Specialized Pathway.¹⁰⁸ The goal of the third and most resource-intensive pathway is to “tailor resources, services, and judicial involvement to the needs of the case and the parties.”¹⁰⁹ Court involvement will be early and active, using both in-person and remote hearings.¹¹⁰ The best practice is to assign “a single judge to handle a case from beginning to end,” although this may not always be possible.¹¹¹
• Principle 9: Implement High Quality Judicial and Court Staff Training/Education.¹¹² Training should include legal and nonlegal issues that arise in domestic relations cases.¹¹³
• Principle 10: Identify and Strengthen Community Partnerships.¹¹⁴ Courts should engage partners and not attempt to provide all services themselves.¹¹⁵
• Principle 11: Improve Ongoing Data Collection, Analysis, and Use of Data to Inform Case Management.¹¹⁶ The emerging pathways system is based largely on information technology. Technological innovations work best when using enormous quantities of similarly coded and accurate information.¹¹⁷ Courts must use consistent definitions and procedures for collecting data, which will allow for better analysis within and among jurisdictions.¹¹⁸ “Smart data collection, analysis, and use are central to the effective administration of justice and can significantly improve decision-making.”¹¹⁹ The report briefly identifies maintaining the privacy of court records as a valid concern, including “retention of records, such as screening tools, that may indicate the presence of family violence.”¹²⁰
• Principle 12: Collect and Analyze User-Evaluation Metrics.¹²¹ “[C]ourts must embrace a customer-service mindset” and evaluate their own performance by using “party surveys, focus groups, and other forms of user engagement to continuously improve court procedures, services, and self-help materials.”¹²²
• Principle 13: Implement Innovative and Appropriate Technology.¹²³ “Courts should adopt a component-based case management system that allows for flexibility in vendor selection and system functionality.”¹²⁴ Courts should avoid using a single vendor or doing everything in-house.¹²⁵

C. Judicial Leaders Form a Plan

In early 2019, the CCJ endorsed the 13 bolded Principles above as a “worthy guide to improve delivery of justice in domestic relations cases.”¹²⁶ The CCJ referenced the Landscape of Domestic Relations Cases for its determination that “[m]ost cases are uncontested, but contested and uncontested cases took about the same amount of time, fueling the public perception that the legal system takes too long to achieve a meaningful resolution.”¹²⁷ This determination is noteworthy because it mentions only the mean duration findings and not the median duration.¹²⁸ The CCJ resolution discussed deficiencies of current data systems, and encouraged the NCSC to commence pilot projects that would implement its recommendations.¹²⁹ On the same day, the CCJ also prophetically passed a resolution that supported state court planning for major disasters and public emergencies.¹³⁰ Later that year, the CCJ and COSCA jointly resolved to improve judicial branch handling of cases involving self-represented litigants and the court’s use of online services, social media, live chat, and mobile technologies.¹³¹ The CCJ and COSCA also resolved to update court policies and evidentiary requirements relating to cell phones, laptops, and personal electronic devices.¹³²

COSCA elaborated upon court information technology priorities in a 2019 Policy Paper titled Court Data: Open, With Care.¹³³ COSCA favored open access to court case data in a “machine readable” format, meaning that case data could be processed by a computer absent human intervention and without loss of data or semantic meaning.¹³⁴ Data in searchable and sortable formats could be used across diverse systems and datasets.¹³⁵ The Policy Paper encouraged state courts to adopt normalized data standards and provide sufficient funding to enable open court access.¹³⁶ COSCA defined “court case data” as “[a]ny information that is collected, received, or maintained by a court or clerk of court connected to a judicial proceeding that are generally maintained in a case management system. The data may contain both public and confidential information.”¹³⁷ COSCA acknowledged, “Regarding court case data, practical obscurity presents no practical protection of private information.”¹³⁸ The report overtly declined to address subjects such as misinformation, misuse of court case data, expungement, sealing records, and destroying records.¹³⁹ The report also did not address subjects such as hacking and ransomware attacks.

In March 2020, the Joint Technology Committee of COSCA, NCSC, and NACM called for expanding the use of “Augmented Intelligence” (AI) in court operations.¹⁴⁰ The Joint Technology Committee (JTC) bulletin described various AI technologies¹⁴¹ that were available to courts, including Visual Perception (such as facial recognition technologies), Optical Character Recognition (technologies that can glean information from typed and handwritten text), Natural Language Processing (technologies that extract meaning from human speech, similar to Alexa or Siri), Symbiotic AI (algorithms that follow step-by-step procedures), and Machine Learning (known as “inferential AI,” where humans set a goal and computers determine algorithms to attain that goal).¹⁴² Courts could use machine learning to identify “red flags” in cases, which would facilitate differentiated case management.¹⁴³ The JTC bulletin discussed levels of human oversight of AI, ranging from “human-in-the-loop” processes where humans would have active supervisory roles, to “human-out-of-the-loop” processes where algorithms would make all of the decisions without human oversight.¹⁴⁴ Some courts had implemented “human-on-the-loop” processes that preserved human power to intervene and override otherwise automated actions, such as New Jersey state courts that use chatbots to answer frequently asked questions to direct users to judicial resources.¹⁴⁵ The bulletin recognized the need for “appropriate, unbiased, [and] ethical use of AI,” and it suggested that courts reference the Ethical Principles for AI that were adopted by the U.S. Department of Defense.¹⁴⁶

The judiciary was poised by the beginning of 2020 to use the combined strength of the NCSC, CCJ, COSCA, NCJFCJ, NACM, IAALS, FJI, and other entities to implement enormous reforms. The question was, could anyone systematize and streamline a system that was both extremely well established and wholly disparate? Was it possible to reform processes in multiple jurisdictions and thousands of courthouses throughout the United States, each with its own character and idiosyncrasies? Could courts afford the necessary technology? Would proposed reforms encounter determined opposition from practitioners or legislators? How would the judiciary cross these chasms?

III. Implementation Begins

A. Crisis Creates Opportunity

COVID-19 emerged in late 2019, found its way to the United States in early 2020, and severely disrupted state court operations by March 2020.¹⁴⁷ Lawyers, judges, and support staff across the nation suddenly could not, or would not, go to work in offices and courthouses. Judicial responses to the pandemic differed state-to-state, county-to-county, and sometimes even judge-to-judge.¹⁴⁸ A party who wanted to file written pleadings in a court clerk’s office might not be permitted to enter the courthouse. Cases that were in the middle of trials suddenly ceased to have court dates. Matters with upcoming hearing dates were postponed indefinitely. Fully submitted matters could wait a very long time for a ruling, especially if the judge needed papers located at the courthouse. Litigants could not establish, modify, or enforce parenting or financial orders. Marshals could not serve papers. Although new filings decreased, so did case disposals, resulting in a backlog that led to a series of NCSC videos, including one titled Battling the Backlog: COVID-19 Pandemic Domestic Relations and Domestic Violence Data.¹⁴⁹

Litigants still needed to access the justice system, but traditional processes and requirements suddenly were inaccessible. Americans are at their best when forced to innovate. Individuals and organizations used existing information technologies to solve their pressing problems. Lawyers and judges who may have otherwise opposed reform of domestic relations processes instead demanded a functioning legal system that employed information technologies, such as videoconferencing and virtual hearings.¹⁵⁰ The CCJ, NCSC, COSCA, and state courts throughout the United States seized the initiative.

Over 83 million cases are filed in United States courts every year, and information technologies could keep courts functioning.¹⁵¹ The NCSC, CCJ, and COSCA’s Guiding Principles for Post-Pandemic Court Technology observed on July 16, 2020:

Prior to the COVID-19 pandemic, in almost all cases, tens of millions of court users had no choice about whether to visit a courthouse to resolve their case; they were required to appear in person. . . .

This national emergency led state courts to embrace online platforms like never before. . . . [T]he disruptive¹⁵² pandemic expedited the courts’ use of [innovative technologies and business practices] . . . .

. . . Courts now have a unique opportunity to leverage creative thinking, seize on an emergency-created receptivity to change, and adopt technology to create long-term and much-needed improvements.¹⁵³

The Post-Pandemic Planning Technology Working Group of the CCJ and COSCA recommended six key principles: “(1) Ensure principles of due process, procedural fairness, transparency, and equal access are satisfied when adopting new technologies”; “(2) Focus on the user experience”; “(3) Prioritize court-user driven technology”; “(4) Embrace flexibility and willingness to adapt”; “(5) Adopt remote-first (or at least remote friendly) planning, where practicable, to move court processes forward”; and “(6) Take an open, data-driven, and transparent approach to implementing and maintaining court processes and supporting technologies.”¹⁵⁴ The Guiding Principles for Post-Pandemic Court Technology addressed allowing for electronic service, using and enforcing online dispute resolution, collecting data from users to allow for their use across the court system, implementing tools to comply with the Americans with Disabilities Act, enabling online payment of fees, ensuring online translation, modifying or eliminating court processes that hamper technologically innovative processes, working with start-up technology ventures and other private vendors, collecting data at frequent intervals, protecting personal identifying information, and moving “as many court processes as possible online.”¹⁵⁵

The CCJ and COSCA promptly endorsed the Guiding Principles for Post-Pandemic Court Technology, stating, “[S]tate courts now have a unique opportunity to leverage creative thinking and openness to innovation by using technology to create long-term and much-needed change for the courts . . . [we] urge state courts to drive innovation. . . .”¹⁵⁶ The CCJ and COSCA issued a separate resolution that reiterated support for the Family Justice Initiative and its Landscape of Domestic Relations Cases, Principles for Family Justice Reform, and Model Process for Family Judicial Pathways reports, stating, “the 2020 pandemic has afforded opportunities for courts to implement positive adaptations and continue to support innovations.”¹⁵⁷ Courts should simplify procedures for self-represented litigants, “aggressively triage cases,” and seize the moment to make other improvements.¹⁵⁸

Over one year into the pandemic, the CCJ and COSCA reaffirmed their support for virtual hearings and related technological reforms.¹⁵⁹ They also urged state courts to consider and address practical challenges such as bridging the digital divide, protecting privacy, determining which cases are appropriate for virtual hearings, ensuring that all parties can meaningfully participate in court processes, and allowing adequate time for people to address technology issues.¹⁶⁰ A separate resolution reiterated existing support for simplification of legal processes.¹⁶¹

B. Using the Model Process as a Roadmap for Implementation

The Family Justice Initiative issued a companion report to its 2019 Principles for Family Justice Reform entitled A Model Process for Family Judicial Pathways.¹⁶² The CCJ and COSCA encouraged states to use the Model Process as an adaptable roadmap of best practices for family justice reform.¹⁶³ Best practices include how to structure pathways, triage cases, collect and disseminate information in multiple formats and languages, and use a nonattorney “concierge/navigator” to help self-represented litigants complete automated forms and serve papers.¹⁶⁴ This section discusses how the pathways and triage processes work.

Principle 5 in the Principles for Family Justice Reform recommended that courts “triage” cases shortly after they commence and assign the cases to “pathways.”¹⁶⁵ The Model Process recommends “a well-designed cover sheet or other tool to capture critical data.”¹⁶⁶ Obtaining data is necessary so that artificial intelligence (AI), especially inferential machine learning, can help assess suitability for a pathway.¹⁶⁷ Key data elements in the predictive triage include the “length of the marriage or relationship, length of the separation, presence of children and their age, type of property and debt, and [the] representation status of [the] parties.”¹⁶⁸ Humans working with information technologies also will assess the level of conflict, domestic violence, substance abuse, third-party involvement, and complexity of the financial issues.¹⁶⁹ Courts should allocate sufficient resources to triaging cases so that they assign matters effectively to the Streamlined, Tailored, or Judicial/Specialized pathways. Parties should be able to request the Streamlined or another pathway subject to court approval, and pathway assignments should be reassessed during the life of a case.¹⁷⁰ Courts should consider waiving mandatory waiting periods that can delay final resolution.¹⁷¹

Principles 6, 7, and 8 in the Principles for Family Justice Reform discussed research supporting the three case management pathways.¹⁷² The Model Process explained those paths in practical terms, including which cases are most appropriate for the Streamlined, Tailored, or Judicial/Specialized pathway.¹⁷³ Cases on the “Streamlined” track often arrive at court with full agreement on all or nearly all issues.¹⁷⁴ The Model Process indicated that these are essentially administrative cases that involve “[n]o or minimal decision-maker discretion” and are “[g]enerally decided based on standard paperwork.”¹⁷⁵ Accordingly, no hearing is needed in most Streamlined cases before courts approve agreements and enter orders.¹⁷⁶ “The goal is to grant the parties a swift resolution with minimal court resources.”¹⁷⁷

Cases on the second, “Tailored Services” track present some unresolved issues, but the parties likely can reach agreement with a relatively low level of court involvement and services.¹⁷⁸ The Model Process indicates that these matters involve fairly typical issues that do not require expert or specialized training to resolve.¹⁷⁹ A neutral third party (e.g., a mediator) can help the parties reach their own agreements, and a nonlawyer “concierge/navigator” can help self-represented litigants prepare for proceedings.¹⁸⁰ Informal trials and other simplified processes are encouraged, including virtual hearings and online dispute resolution.¹⁸¹ These cases are not suitable for the Streamlined track, but the process should empower parties to resolve their own disputes by agreement.¹⁸² If the parties reach an agreement, the judicial role will be “limited, primarily to review for compliance with legal requirements.”¹⁸³

Cases assigned to the third, “Judicial/Specialized” track of the Model Process require the highest level of court services.¹⁸⁴ Good candidates for this track include matters involving contested custody, substance abuse, mental health issues, family violence, child welfare involvement, extended family involvement, immigration, or complex finances.¹⁸⁵ The Model Process forecasts that many matters on the Judicial/Specialized track will be resolved through mediation and other forms of alternative dispute resolution.¹⁸⁶ A single judge should be assigned to a case, where that is possible,¹⁸⁷ and the judge should exercise control over a case as it proceeds.¹⁸⁸ The court, as opposed to the lawyers and litigants, should set the pace of litigation.¹⁸⁹ Services provided to a family may include supervised visitation, parent coordinators, custody evaluations, guardians ad litem, attorneys for minor children, and experts.¹⁹⁰ Moreover, “[e]fforts to secure legal services, including unbundled or remote, may be worthwhile and extremely helpful to [the] litigants and the court; if unsuccessful, [a] concierge/navigator may provide some assistance in preparing for proceedings.”¹⁹¹

In early 2021, the CCJ and COSCA passed a joint resolution effectively urging state courts to use the COVID-19 disruption to implement reforms.¹⁹² These included expanded self-help services for litigants, new or modified court rules and processes, use of triage models, effective use of technology, and use of nonlawyer concierge/navigators.¹⁹³ State courts would drive innovation, and one lucky state would go first.

C. The First Demonstration State

As of December 2021, the NCSC website listed one state and four counties as demonstration site locations.¹⁹⁴ This section of the article briefly discusses how the one state, Connecticut, is attempting to implement the Model Process within its existing framework of resources, statutes, and rules. It also discusses significant concerns identified in a survey of family lawyers, and how the Family Division plans to improve procedures in 2022 to better implement the Model Process.

Unbeknownst to most Connecticut practitioners, the Family Division began working with the NCSC to modernize court processes in 2018, the same year that the FJI issued its Landscape of Domestic Relations Cases.¹⁹⁵ In hindsight, the Judicial Branch forecast coming reforms by implementing a series of relaxed procedures and remote hearings to maintain court operations during COVID-19.¹⁹⁶ In early January 2021, the Judicial Branch announced that it had worked with the NCSC to create a new triage process called the “Resolution Plan Date.”¹⁹⁷ The new process would be implemented immediately in all new family law cases.¹⁹⁸

On March 4, 2021, the Judicial Branch informed state family bar leaders that it had posted a video describing Connecticut’s new triage and pathways approach.¹⁹⁹ In the video, the Chief Administrative Judge for Family Matters, the Honorable Michael A. Albis, introduced the NCSC’s Principal Court Management Consultant (who also was the project director for the Family Justice Initiative), Alicia Davis, to discuss the new pathways system.²⁰⁰ She explained that the Landscape of Domestic Relations Cases study showed that “uncontested and contested cases take the same amount of time” to resolve, presumably referring to mean case duration.²⁰¹ The pathways approach had proven successful in several pilot programs, and the CCJ had passed a resolution supporting it in 2020.²⁰² Connecticut speakers then explained how the Model Process had been tailored for immediate implementation in Connecticut.²⁰³

Under Connecticut’s version of the NCSC triage, parties should speak with a family relations counselor 30 to 45 days after commencing a new action.²⁰⁴ A counselor would help the parties resolve their own disputes voluntarily and amicably.²⁰⁵ If an immediate resolution would not be possible, then a counselor would capture key data elements.²⁰⁶ Human analysis, supplemented by information technology, would result in a family services counselor completing a standardized court form that would recommend a track.²⁰⁷ A trial court judge would exercise discretion to choose a pathway after considering the family services recommendation.

Connecticut changed the names of the pathways to Track A (for “Minimal Court Involvement”), Track B (for “Limited Court Involvement”), and Track C (for “Significant Court Involvement”).²⁰⁸ The Streamlined pathway thus became Track A; the Judicial Branch adapted this pathway consistent with existing resources, statutes, and Rules of Court. Correspondingly, the Judicial Branch began the process of modifying its own Rules of Court to facilitate the Model Process and supported legislation that went into effect on June 28, 2021, that allows many more cases to proceed to judgment without the litigants physically appearing in court.²⁰⁹ Simplified divorce procedures already existed in Connecticut for uncomplicated matters, but the statutory revisions relaxed the rules and significantly expanded the universe of qualifying cases.

Connecticut designated the midlevel Tailored Services pathway as Track B. At the conclusion of the resolution plan date (triage), the court will assign a “Case Date” in a Track B case, which should occur within 30 to 60 days from the triage.²¹⁰ The court can address all pending motions during a case date, thereby eliminating the weekly “short calendar” system used for decades in Connecticut to resolve pendente lite and post judgment motions.²¹¹ If a matter is not resolved at a case date, then a trial date typically should be scheduled two to three months later. The court also will schedule a judicial pretrial, which will turn into a trial management conference if the matter is not resolved. The court will identify outstanding discovery and other issues that need to be resolved before a trial commences.²¹²

The Judicial/Specialized pathway for complex matters is called Track C.²¹³ At the conclusion of the resolution plan date (triage), Track C cases will be assigned a judge, a designated family relations counselor (if parenting issues are in dispute), two case dates, a discovery conference, a pretrial settlement conference, and three trial dates. The case dates will occur 30 to 60 days and six months after the resolution plan date. The designated family services counselor will be available to attend both case dates. There will be a separate discovery conference, which should occur shortly after discovery is supposed to be complete under a scheduling order. A three-day trial should commence between nine and ten months after the resolution plan date, but the assigned judge has discretion to alter the duration and starting date of a trial. Based on judicial staffing considerations, the assigned judge or a different judge can conduct the trial.²¹⁴

In July, the chief administrative judge of the Family Division advanced the Model Process by implementing new standing orders that are applicable to cases on all three tracks. Parties must exchange and file various affidavits, exhibits, and objections in advance of case dates, resolution plan dates, trials, and hearings.²¹⁵ The longstanding practice of special master pretrials, at which experienced attorneys volunteer time to help settle cases, paused at the start of the pandemic and was not a component of the new process.²¹⁶

With respect to post-judgment matters, a family services counselor will assess the complexity and the likelihood of settlement at a resolution plan date. Cases with agreements can go straight to cursory judicial review and approval. A judge can exercise discretion to assign unresolved Track B matters for a hearing in approximately three weeks, and can schedule Track C matters for a hearing in approximately five months. There usually will not be a case date or a pretrial settlement conference in a post-judgment case, but one can be assigned. The court will set a discovery schedule immediately after the resolution plan date.²¹⁷

Practitioners were surprised by the content, magnitude, and speed of the rollout. The Connecticut Bar Association’s (CBA’s) Family Law Section conducted an online survey of its members in September 2021, which asked respondents to discuss their experience with new court procedures during the first nine months of 2021.²¹⁸ Of the 166 attorney respondents, 84% indicated that the new system was not providing meaningful access to justice for their clients.²¹⁹

Two fundamental premises of the Model Process are that courts will process matters quickly and the Judicial Branch will exert more control over matters. The initial Connecticut experience demonstrates what can happen when courts do not implement the reforms according to the plan because of insufficient resources, COVID-19 impediments, or other reasons. For example, the initial triage at a resolution plan date should occur 30–45 days after commencement of a new action. Yet, 90% of CBA attorney respondents indicated that they had at least one matter in which a resolution plan date was scheduled more than three months from the date of filing, and 65% reported receiving a resolution plan date more than five months from the date of filing.²²⁰

Connecticut practitioners reported that custodial parents and minor children were unable to obtain temporary support orders and were suffering financial distress, that noncustodial parents were unable to obtain temporary parenting orders and were being denied access to their children, that parties were using more self-help, and that parties were disobeying court orders at alarming rates.²²¹ Seventy percent of attorneys had a case in which they filed a motion for temporary alimony or child support but had not been afforded a hearing within five months of filing; 58% filed a motion for custody or parental access but had not received a hearing within five months; 68% filed a motion for contempt but had not had a hearing within five months; and 93% indicated that the new system did not provide a predictable way to determine when a motion would be heard.²²² Respondent comments indicated that case dates allotted insufficient time to resolve issues, and that unresolved motions would be postponed until a future date or trial. Notably, 49% “strongly agreed” and 40% “agreed” (total 89%) with the following statement, “The current system favors those who seek to disobey or otherwise not comply with their Family Court-related obligations.”²²³

The Family Division thereafter actively engaged with practitioners to improve implementation. ²²⁴  On December 22, 2021, Connecticut’s official court website posted its first comprehensive, written explanation of the pathways approach. The four-page document acknowledged, “Scheduling [triages] as intended was difficult to do in 2021 for reasons related to the COVID19 pandemic, as the court had to rely primarily on remote proceedings. . . . [I]n 2022 the Judicial Branch plans to implement Pathways according to the scheduling guidelines originally designed for the process.”²²⁵ Effective January 1, 2022, resolution plan dates should occur no more than 30 days after filing an application in custody/visitation cases; within 30–45 days in dissolution of marriage/civil-union/legal-separation cases; and within 21–30 days in post-judgment matters. Case dates should occur 30–60 days after the resolution plan dates in Track B and C cases, and in Track C cases, a second case date should occur 5–6 months after the resolution plan date. Most of these court events will be held in-person, but judges have discretion to allow for remote proceedings in special circumstances. Judges will have discretion to schedule additional in-person and remote hearings on a case-by-case basis. A crucial question not addressed in the posting is whether the Family Division will have sufficient resources to implement its plan. Most notably, family services counselors were overburdened in 2021 and became a choke point in the system.

Some of the problems with the initial implementation resulted from the COVID19 disruption of court operations, the transition from in-person to remote proceedings, and the large backlog of matured disputes. Initial implementation problems reveal what happens when a system that is premised on speed and efficiency does not resolve matters quickly and fully. Emphasis in the Model Process on resolving matters completely, without devoting resources to resolving “temporary” issues (such as children seeing their parents while a marital dissolution case is pending or families receiving “temporary” financial support so they can pay for rent and groceries) could result in tremendous distress for families.

Additional study is necessary to determine whether failure to resolve temporary issues in a timely manner leads to more intransigence, unfair outcomes, self-help, and heightened conflict. It is possible that some aspects of the Model Process impact litigants’ assessments of their “best alternative to a negotiated agreement.”²²⁶ That is, does the current iteration of the Model Process encourage intransigence by those with power, or does it force individuals with fewer financial or nonfinancial resources to surrender on unfair terms? Will deemphasizing timely resolution of pendente lite disputes cause some matters to deviate from the Streamlined or Tailored Services pathways and end up on the Judicial/Specialized pathway, as small issues devolve into intense and intractable problems? These concerns notwithstanding, it is too early to fully assess the success of the Model Process as implemented in the first “demonstration” state.

IV. The Judicial Branch Is Driving Systemic Innovation

The judiciary used the COVID-19 pandemic to implement technology, improve access to justice, enlist cooperation from temporarily malleable attorneys, and overpower potential opposition. Significant gaps remain between concept and effective implementation. The initial experience in Connecticut indicates that state courts should work closely with practicing lawyers and other stakeholders in tailoring the Model Process to serve a jurisdiction’s unique needs, and measure success based on far more than case duration or the judicial resources expended in reaching final judgments. The new system needs to resolve cases both fairly and efficiently. Yet, people working within the legal profession still should embrace systemic innovation, not because the changes are inevitable but because the new approaches show promise of better serving the public.

“Systemic innovation” occurs when multiple complementary and synergistically integrated innovations result in a change that is greater than the individual components.²²⁷ Innovations driven by the judiciary seek to facilitate a problem-solving approach, encourage self-determination by litigants, move cases away from adversarial proceedings, shift case management decisions from attorneys to courts, and improve access to justice. The enormous array of innovations also adopt information technology, collect and share data, extend open court data policies, reduce judicial branch expenditures, externalize traditional judicial branch responsibilities and services,²²⁸ expand regulatory rules beyond the legal profession, utilize nonattorney concierge/navigators, eliminate unnecessary procedures, simplify matters for self-represented litigants, and improve differentiated case management by using triage and pathways. The judicial branch advanced all of these innovations in 2020 and 2021, and together they are transformational.

The NCSC, CCJ, COSCA, IAALS, NCJFCJ, NACM, FJI, Cady Initiative for Family Justice Reform, and additional entities representing the judiciary aligned behind the Landscape of Civil Litigation, the Call to Action: Achieving Civil Justice for All, the Landscape of Domestic Relations Cases in State Courts, the Principles for Family Justice Reform, and the Guiding Principles for Post-Pandemic Court Technology. Years of thoughtful study produced a plan for systemic reform of an underperforming judicial system. Yet, a chasm still remained between the aspirations of judicial leadership and the daily actions of practitioners, judges, clerks, technology vendors, and litigants. Perhaps the largest challenge involved convincing stakeholders to use available technologies. Lawyers are highly educated, experienced, and confident professionals who have mastered traditional business practices. They were not looking for transformation. Only a major disruption could trigger such a rapid change.

In his book Crossing the Chasm, Geoffrey A. Moore analyzed the “technology adoption life cycle” to explain how new technologies move from interesting ideas to mainstream products.²²⁹ According to Moore, the business world is comprised of innovators, early adaptors, early majority, late majority, and laggards.²³⁰ Every new technological product must cross a series of chasms on the way to mainstream adoption.²³¹ Acceptance and implementation will not happen without a spark from those who are willing to innovate and adapt.²³² Elsewhere, I apply Moore’s categories to lawyers, but suffice to say that most lawyers fall into the category of “late majority.” That is, they wait until a new technology becomes the established standard before using it, and they consistently comply with new court rules and procedures because there is no alternative. In time, lawyers will reluctantly appreciate the fact that the judicial branch has worked out the bugs, selected reputable vendors, and improved processes.

Information technologies that were affixed to new court processes crossed the chasm in 2020. The entire legal system had to convert to remote proceedings and relaxed procedures, or else there would have been little or no access to justice. Most attorneys were working in different locations from their support staff in 2020, which forced them to use technologies themselves. Because everyone suddenly was in the same awkward position, through no fault of their own, colleagues and court staff were understanding and patient. Rather than push back on technologies such as remote hearings because they were not as effective as in-person proceedings, attorneys and judges embraced them because there was no alternative. Reluctance gave way to acceptance, and competition will lead to mastery.

The new system anticipates wider use of electronic forms, e-filing, machine-readable formatting, searchable and sortable data, information that can be used across diverse systems and datasets, and open access to court data.²³³ Machine-readable data allow courts to shift responsibilities from humans to information technology, and it thus enables new approaches championed by NCSC, CCJ, COSCA, NACM, FJI, the Cady Initiative for Family Justice Reform, and others.²³⁴ Future case management practices will be driven more by data than human discretion. For example, triage procedures and pathway assignments increasingly may be based on AI and algorithmic predictions.

Emerging systems show tremendous promise, but policymakers need to exercise caution before implementing rapidly advancing technologies. Both human and automated coders will create the algorithms, rather than judges or lawyers. Just as most lawyers are uninterested in coding, most coders are uninterested in the finer points of due process and the rule of law. Courts should ensure transparency. Stakeholders should know what information is considered, what information is ignored, and how the information is weighed. Importantly, human decision-makers working with AI should be able to explain to distressed litigants why a predictive algorithm recommended a particular pathway, and how humans continue to make the final decisions.²³⁵

Systemic innovation in family law raises numerous additional questions that this article cannot explore. Some broad categories include due process, the “digital divide” and access to justice, protecting rights, power imbalances, domestic abuse, tension between equitable principles and self-determination, the role of nontraditional legal services providers, collection and storage of personal data, open access to court data, the proper role of AI in assisting judges during contested family matters, and other issues.²³⁶ The privacy and safety issues are monumental, and are either minimized or misunderstood in various judicial branch white papers and reports.²³⁷ Additional study is necessary on subjects such as responding to hacking and ransomware attacks, ensuring the authenticity of remote proceedings, and anticipating future emergencies that could undermine technologically dependent processes. The Model Process needs to ensure timely enforcement of court orders and to better resolve crucial “temporary” issues, such as parental access to minor children while a matter is pending. Hopefully, the same judicial actors that drove systemic innovation will retain sufficient flexibility to modify processes that do not work as anticipated, or that are misused.

Conclusion

The judiciary rightly capitalized on the pandemic to make necessary reforms, embrace new ways of operating, and transform courts into a more accessible, transparent, efficient, and user-friendly branch of government. The average practitioner and court officer in 2019 were nowhere near ready to plunge into twenty-first century technology, but they surprised themselves by doing so starting in 2020. The legal profession will not forget what it learned, and it will not return to old practices. State courts should examine the experience of the demonstration jurisdictions carefully and work closely with stakeholders to implement improvements. Members of the legal profession should help the judiciary to incorporate systemic innovations into a better family court system.

Endnotes

1. Nat’l Ctr. for State Cts. (NCSC), Guiding Principles for Post-Pandemic Court Technology: A Pandemic Resource from CCJ/COSCA Version 1 at 1 (July 16, 2020), https://www.pmconline.org/sites/default/files/2020-08/Guiding%20Principles%20for%20Court%20Technology%20%281%29.pdf.

2. The NCSC was founded in 1971 as an authoritative source of knowledge and information for state courts. It promotes the rule of law and improves the administration of justice. About Us, Nat’l Ctr. State Cts., https://www.ncsc.org/about-us.

3. Fam. Just. Initiative, The Landscape of Domestic Relations Cases in State Courts (2018), https://iaals.du.edu/sites/default/files/documents/publications/fji-landscape-report.pdf [hereinafter Landscape of Domestic Relations Cases].

4. See infra Part III.C. Discussions in this article of Connecticut family law practice are based on the author’s experience unless otherwise noted.

5. Two empirical studies on access to justice are particularly instructive. See generally Rebecca L. Sandefur, Am. Bar Found., Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study 3, 11 (Aug. 8, 2014), http://www.americanbarfoundation.org/uploads/cms/documents/sandefur_accessing_justice_in_the_contemporary_usa._aug._2014.pdf (finding “widespread incidence of events and situations that have civil legal aspects, raise civil legal issues and are potentially actionable under civil law,” and also finding that respondents were more likely to seek help to resolve disputes emerging out of breakdown of romantic relationships than other civil matters, such as housing or debt); Legal Servs. Corp., The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans 6, 31 (June 6, 2017), https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf (finding that “86% of the civil legal problems reported by low-income Americans in the past year received inadequate or no legal help,” and also finding that survey respondents sought legal help for 48% of their problems related to custody or children, and 31% of other family law issues).

6. The judiciary spent many years attempting to improve access to justice while at the same time struggling with decreasing budgets and resources. See generally Samuel V. Schoonmaker IV, Withstanding Disruptive Innovation: How Attorneys Will Adapt and Survive Impending Challenges from Automation and Nontraditional Legal Services Providers, 51 Fam. L.Q. 133, 154–61, 185–88 (2017).

7. See generally id. at 180–83.

8. COSCA was established in 1955 to improve state court systems. Each of the 50 states, the District of Columbia, Puerto Rico, American Samoa, Guam, Northern Mariana Islands, and the Virgin Islands chooses one court administrator or official to participate as a member. About COSCA, COSCA, https://cosca.ncsc.org.

9. COSCA Res. I, Integrated Justice Information Systems (Mar. 28, 1998), https://ccj.ncsc.org/__data/assets/pdf_file/0021/23457/03281998-integrated-justice-information-systems.pdf. The COSCA resolution partially responded to a 1996 federal requirement that states collect and exchange data for purposes of child support enforcement. See generally Samuel V. Schoonmaker IV, Consequences and Validity of Family Law Provisions in the “Welfare Reform Act”, 14 J. Am. Acad. Matrim. Law 1, 10–21 (Summer 1997) (summarizing data collection and electronic information–sharing requirements for continuing funding of public assistance programs). The Conference of Chief Justices (CCJ) later passed a resolution that supported adoption of technology standards to comply with various national computer protocols and standards. CCJ Res. 13, Implementation of Automation Standards (Aug. 2, 2001), https://ccj.ncsc.org/__data/assets/pdf_file/0018/23463/08022001-implementation-automation-standards.pdf.

10. COSCA Res. 4, Resolution on Furthering the Court Leadership Role in Justice Information Sharing (July 31, 2003), https://ccj.ncsc.org/__data/assets/pdf_file/0022/23746/07312003-resolution-on-furthering-the-court-leadership-role-in-justice-information-sharing.pdf (referencing 2002 White Paper titled “Position Paper on Court Leadership in Justice Information Sharing”).

11. The CCJ was founded in 1949 to improve the administration of justice and organize cooperation among state courts and judicial systems. Membership consists of the highest judicial officer in each of the 50 states, the District of Columbia, Puerto Rico, American Samoa, Guam, Northern Mariana Islands, and the Virgin Islands. Conf. of Chief Justs., https://ccj.ncsc.org.

12. CCJ & COSCA Res. 29, In Support of Congress Working with State Courts on the Issue of Social Security Number Redaction Requirement (Aug. 1, 2002), https://ccj.ncsc.org/__data/assets/pdf_file/0024/23748/08012002-in-support-of-congress-working-with-state-courts-on-the-issue-of-social-security.pdf; CCJ & COSCA Res. 33, Endorsing and Supporting Public Access to Court Records: Guidelines for Policy Development by State Courts (Aug. 1, 2002), https://ccj.ncsc.org/__data/assets/pdf_file/0015/23550/08012002-endorsing-and-supporting-public-access-to-court-records.pdf.

13. NACM’s mission includes to educate court professionals. Who We Are, Nat’l Ass’n Ct. Mgmt., https://nacmnet.org/who-we-are/.

14. COSCA Pol’y Statement, Information Technology Development in the Courts (Dec. 3, 2004; adopted by NACM Nov. 6, 2004), https://ccj.ncsc.org/__data/assets/pdf_file/0021/23385/12032004-policy-statement.pdf.

15. Id.

16. CCJ Res. 13, The Emergence of E-Everything (Jan. 18, 2006), https://ccj.ncsc.org/__data/assets/pdf_file/0011/23420/01182006-the-emergence-of-e-everything.pdf; see also CCJ Res. 6, Regarding Approval of the Guidelines for State Trial Courts on Discovery of Electronically-Stored Information (Aug. 2, 2006), https://ccj.ncsc.org/__data/assets/pdf_file/0019/23761/08022006-approval-guidelines-state-trial-courts-discovery-of-electronically-stored-information.pdf; CCJ & COSCA Res. 5, In Support of Clarifying Contractor Access to Federal Tax Data for the Purpose of Child Support Enforcement (Aug. 1, 2007), https://ccj.ncsc.org/__data/assets/pdf_file/0023/23738/08012007-in-support-of-clarifying-contractor-access-to-federal-tax-data-for-child-support.pdf; CCJ Res. 4, In Support of State Action Plans to Reduce the Costs Associated with the Prosecution and Defense of Ordinary Civil Cases (Aug. 3, 2011), https://ccj.ncsc.org/__data/assets/pdf_file/0015/23622/08032011-in-support-of-state-action-plans-to-reduce-the-costs-associated.pdf (encouraging “experimentation”); CCJ & COSCA Res. 6, In Support of the 2010–2015 National Agenda of the National Association for Court Management (Aug. 3, 2011), https://ccj.ncsc.org/__data/assets/pdf_file/0024/23496/08032011-in-support-of-the-2010-2015-national-agenda.pdf (pledging to work with NACM to implement its priorities); CCJ & COSCA Res. 7, In Support of Establishing Best Practices/Recommendations for the Use of Video Remote Interpretation (July 31, 2013), https://ccj.ncsc.org/__data/assets/pdf_file/0020/23744/07312013-support-best-practices-recommendations-use-video-remote-interpretation-ccj-cosca.pdf (remote interpretation using videoconference technology); CCJ & COSCA Res. 1, In Support of State Counts of Cases with Self-Represented Litigants and Cases with Interpreters (Jan. 29, 2014), https://ccj.ncsc.org/__data/assets/pdf_file/0020/23681/01292014-support-state-counts-cases-self-represented-litigants-cases-interpreters.pdf (data collection).

17. Civ. Just. Initiative, The Landscape of Civil Litigation in State Courts (2015), https://www.ncsc.org/__data/assets/pdf_file/0020/13376/civiljusticereport-2015.pdf [hereinafter Landscape of Civil Litigation].

18. Id. at v.

19. Id. at 35.

20. Id. at iv, 36–37.

21. Id. at 38. The “more-for-less challenge” is addressed compellingly elsewhere. See generally Richard Susskind & Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts 4–5, 105 (2015).

22. CCJ Civil Just. Improvements Comm., Call to Action: Achieving Civil Justice for All (NCSC 2016), https://iaals.du.edu/sites/default/files/documents/publications/cji-report.pdf.

23. Id. at 4.

24. Id. at 19.

25. Id. at 12.

26. Id. at 33–34.

27. Id. at 37.

28. Id. at 39.

29. CCJ & COSCA Res. 8, In Support of the Call to Action and Recommendations of the Civil Justice Improvements Committee to Improve Civil Justice in State Courts (July 27, 2016), https://ccj.ncsc.org/__data/assets/pdf_file/0017/23480/07272016-support-call-action-recommendations-cji.pdf.

30. Id. at 2.

31. Id.

32. CCJ & COSCA Res. 3, Encouraging Consideration of Principles for Courthouses of the Future (July 27, 2016), https://ccj.ncsc.org/__data/assets/pdf_file/0020/23582/07272016-encouraging-consideration-principles-courthouses-future.pdf.

33. See ABA Res. 105, ABA Model Regulatory Objectives for the Provision of Legal Services (Feb. 8, 2016), https://www.abajournal.com/files/2016_hod_midyear_105.authcheckdam.pdf.

34. See generally ABA Comm’n on the Future of Legal Servs., Report on the Future of Legal Services in the United States (2016), https://www.americanbar.org/content/dam/aba/images/abanews/2016FLSReport_FNL_WEB.pdf. Recommendation 2.1 in the final Commission report urged courts to “consider adopting the ABA Model Regulatory Objectives for the Provision of Legal Services.” Id. at 39.

35. Id. at 16.

36. CCJ Res. 9, Recommending Consideration of ABA Model Regulatory Objectives for the Provision of Legal Services (Feb. 3, 2016), https://www.ncsc.org/__data/assets/pdf_file/0020/23762/02012016-recommending-consideration-aba-model-regulatory-objectives-provision-legal-services.pdf (recommending development of regulatory objectives “beyond the traditional regulation of the legal profession”); CCJ Res. 3, Expanding Meaningful Access to Justice for All (Jan. 31, 2018), https://ccj.ncsc.org/__data/assets/pdf_file/0011/23510/01312018-expanding-meaningful-access-to-justice-for-all.pdf (improving access to justice includes modified court rules, triage of cases, effective use of technology, and discrete task representation).

37. The CCJ renewed its support for regulatory innovations in 2020. CCJ Res. 2, Urging Consideration of Regulatory Innovations Regarding the Delivery of Legal Services (Feb. 5, 2020), https://www.ncsc.org/__data/assets/pdf_file/0010/23500/02052020-urging-consideration-regulatory-innovations.pdf.

38. NCSC, Civil Justice Initiative: Criteria for Automating Pathway Triage in Civil Case Processing (2017), https://www.ncsc.org/__data/assets/pdf_file/0016/25711/automated-civil-triage.pdf.

39. COSCA, Court Data: Open, With Care 6 (2019), https://cosca.ncsc.org/__data/assets/pdf_file/0017/51173/2019-COSCA-White-Paper.pdf [hereinafter Open, With Care].

40. Id.

41. IAALS was founded in 2006 at the University of Denver for the purpose of “forg[ing] innovative and practical solutions to problems within the American legal system.” About, Inst. for the Advancement of the Am. Legal Sys., https://iaals.du.edu/about.

42. The NCJFCJ indicates that it is the oldest judicial membership organization in the United States. It provides education and assistance to judges. Nat’l Council of Juv. & Fam. Ct. Judges, https://www.ncjfcj.org.

43. Cady Initiative for Family Justice Reform/About the Project, NCSC, https://www.ncsc.org/services-and-experts/areas-of-expertise/children-and-families/fji-update/about-the-project. In February 2021, the CCJ and COSCA renamed the Family Justice Initiative as the Cady Initiative for Family Justice Reform. CCJ & COSCA Res. 3, In Recognition of the Leadership Provided by Chief Justice Mark S. Cady to the Family Justice Initiative (Feb. 9 & 12, 2021), https://ccj.ncsc.org/__data/assets/pdf_file/0012/60231/Resolution-3-In-Recognition-of-the-Leadership-of-the-Honorable-Mark-S.-Cady-of-the-Family-Justice-Initiative-.pdf.

44. Landscape of Domestic Relations Cases, supra note 3, at 5.

45. Thomas M. Clarke, Triage Protocols for Divorce and Child Custody Cases (NCSC & State Just. Inst. Apr. 2017), https://www.ncsc.org/__data/assets/pdf_file/0022/19408/clark-triage-protocols-for-divorce-and-child-custody-cases.pdf.

46. Id. at 3.

47. Id. at 3–4.

48. Id. at 5.

49. Id. at 5–6.

50. Id. at 6–9.

51. Id. at 13–14.

52. Id. at 14.

53. Id. In the author’s experience as a Connecticut practitioner, the majority of cases were not placed on the “contested heavy track.” Most cases went to judgment on an uncontested basis without such a triage.

54. See infra Part III.C.

55. Landscape of Domestic Relations Cases, supra note 3.

56. Id. at i, 7, 9 tbl.2. The courts were in the following counties: Miami-Dade County, Fla.; Mecklenburg County, N.C.; Fairfax County, Va.; Maricopa County, Ariz.; Montgomery County, Md.; Cuyahoga County, Ohio; King County, Wash.; Los Angeles County, Cal.; St. Louis County, Mo.; Salt Lake County, Utah; and Milwaukee County, Wis. Id. at 10.

57. Id. at 9. The four courts were Los Angeles (41,034), Maricopa (29,839), Mecklenburg (21,091), and Miami-Dade (17,970). The report indicates that its sample reflects approximately 8% of the 4.5 million domestic relations caseload nationally, and draws national conclusions based on the data. Id. at i, 3. Yet, the higher volume of domestic relations cases from these four counties “have a disproportionate impact on the reported statistics, due to their larger contribution to the overall sample.” Id. at 11. Future research should sample courts that serve areas with smaller populations.

58. Id. at 6 n.21 (“Except in research that focuses on issues of particular importance to smaller, rural jurisdictions, the NCSC generally partners with large, urban courts for studies that rely heavily on empirical data. Urban courts generally have sufficient case volume to ensure an adequate sample size on which to draw reliable conclusions. Moreover, urban courts often have more sophisticated CMS, greater probability of capturing data elements of interest, and more rigorous adherence to case management procedures, which minimizes the risk of distortion due to local court idiosyncrasies. In the context of family court operations, urban courts also often have a greater variety and better quality resources for litigants than rural courts.”).

59. Id. at 7–8. Participating courts captured data on 16 to 37 of the 46 data elements, with 28 of the 46 data elements captured on average. Id. at 7.

60. Id. at 12.

61. Id. “Of the ten sites that provided this indicator, the proportion of cases with minor children present [was] 51.7 percent.” Id.

62. Id. at 9 tbl.2. The report does not discuss the average caseload per judge in rural counties.

63. Id. at 20.

64. Id. at 2; see also Natalie Anne Knowlton et al., Cases Without Counsel: Research on Experiences of Self-Representation in U.S. Family Court 30–34 (IAALS May 2016), https://iaals.du.edu/sites/default/files/documents/publications/cases_without_counsel_research_report.pdf.

65. Landscape of Domestic Relations Cases, supra note 3, at 16.

66. Id.

67. Id.

68. Id. at 18 & tbl.3.

69. Id. at 18 & tbl.4; see infra notes 126–27 & 199. “[T]he mean time to disposition was not significantly different between contested and uncontested cases: approximately one quarter of both contested and uncontested cases resolved in approximately three months.” Natalie Anne Knowlton, Alicia Davis, & Melissa Sickmund, NCSC, Trends in State Courts, The Family Justice Initiative: A Work in Progress 35, (2020), https://www.ncsc.org/__data/assets/pdf_file/0012/42150/family_justice_initiative_Knowlton-Davis-Sickmund.pdf.

70. Landscape of Domestic Relations Cases, supra note 3, at 23.

71. Id. at 18 tbl.4.

72. Id.

73. Id.

74. Id.

75. Id. at 20–24.

76. Id. at 21 fig.16.

77. Id. at 24 tbl.8.

78. Id.

79. Id. at 23 (“It is possible that [self-represented litigants] lose any inherent advantage in resolving uncontested cases quickly due to their unfamiliarity with the litigation process.”). The study did not explore other factors that might have contributed in some way to these results.

80. I have previously addressed the failure to resolve access to justice using traditional, human labor methods. See generally Schoonmaker, supra note 6, at 154–61, 185–88.

81. Fam. Just. Initiative, Principles for Family Justice Reform (2019), https://www.ncsc.org/__data/assets/pdf_file/0021/19173/family_justice_initiative_principles_final.pdf [hereinafter Principles].

82. Fam. Just. Initiative, A Model Process for Family Judicial Pathways (2019), https://iaals.du.edu/sites/default/files/documents/publications/family_justice_initiative_pathways.pdf [hereinafter A Model Process].

83. See infra part III.B.

84. Principles, supra note 81, at 2.

85. Id. 2–3.

86. Id. at 4.

87. Id.

88. Id. at 5.

89. Id.

90. Id.

91. Id. at 7.

92. Id. at 7–8.

93. Id. at 8. Artificial intelligence is not specifically named, but it is one type of innovation that would improve predictive capabilities and allow for more proactive case management.

94. Id. at 9.

95. Id.; see also id. at 12–15 (discussing pathways).

96. Id. at 10.

97. Id.

98. Id.

99. Id. at 9–11.

100. Id. at 12.

101. Id.

102. Id.

103. Id. at 13.

104. Id.

105. Id.

106. Id.

107. Id. at 14.

108. Id. at 15.

109. Id.

110. Id.

111. Id.

112. Id. at 16.

113. Id. at 16–17.

114. Id. at 18.

115. Id. at 18–19.

116. Id. at 20.

117. Id.

118. Id.

119. Id.

120. Id. at 21.

121. Id. at 22.

122. Id.

123. Id. at 23.

124. Id.

125. Id.

126. CCJ Res. 3, In Support of the Family Justice Initiative Principles, at 2 (Feb. 13, 2019), https://ccj.ncsc.org/__data/assets/pdf_file/0024/23478/02132019-family-justice-initiative-principals.pdf.

127. Id. at 1.

128. Landscape of Domestic Relations Cases, supra note 3, at 18, 23; see supra notes 65–74 and accompanying text.

129. See CCJ Res. 3, supra note 126.

130. CCJ Res. 2, In Support of the Provision of Legal Services Following a Major Disaster or Public Emergency (Feb. 13, 2019), https://ccj.ncsc.org/__data/assets/pdf_file/0015/23406/02132019-emergency-preparedness.pdf. The Uniform Law Commission (ULC) created a study committee in June 2020 that would consider the need for model or uniform court rules or statutes for domestic relations cases during emergencies. I was one of two ABA appointees to the ULC study committee. In a joint letter dated February 4, 2021, the co-chairs of the CCJ and COSCA pandemic response to the needs of children, families, and courts indicated that state courts already were working on this project, and raised separation of powers and other substantive concerns about developing uniform procedures in this area. Letter from Hon. Loretta H. Rush, Chief Justice, Ind. Sup. Ct. [CCJ] & Dawn Marie Rubio, State Ct. Admin., Wash. State [COSCA], to Professors Kurtz & Eichner (Feb. 4, 2021) (on file with author). Professor Paul M. Kurtz was the chair and Professor Maxine Eichner was the reporter for the ULC Family Court Emergency Procedures Study Committee. Because the NCSC, CCJ, and COSCA were well ahead of the ULC on this project, and their arguments were compelling, it made sense for the ULC to defer to the judiciary.

131. CCJ & COSCA Res. 5, In Support of Implementation of Clear Communications and Streamlined Procedures in the Courts (July 31, 2019), https://ccj.ncsc.org/__data/assets/pdf_file/0027/23589/07312019-implementation-clear-communications-streamlined-procedures.pdf.

132. CCJ & COSCA Res. 3, Admission of Evidence from Cell Phones and Other Personal Electronic Devices (July 31, 2019), https://ccj.ncsc.org/__data/assets/pdf_file/0019/23644/07312019-admission-of-evidence-cell-phones-other-personal-electronic-devices.pdf.

133. Open, With Care, supra note 39.

134. . See id. at 6.

135. Id. at 6–7.

136. Id. at 8, 15.

137. Id. at 3. “Risk assessment information” was specifically included within the definition, and may include data collected during the triage process. Id.

138. Id. at 14 (emphasis added).

139. Id. at 14–15.

140. Joint Tech. Comm., JTC Resource Bulletin: Introduction to AI for Courts (Mar. 27, 2020), https://www.ncsc.org/__data/assets/pdf_file/0013/20830/2020-04-02-intro-to-ai-for-courts_final.pdf [hereinafter Introduction to AI for Courts]. The JTC bulletin did not mention COVID-19 or a pandemic, which suggests that it was prepared as part of an existing plan to innovate court functions, and not in response to an emerging health crisis. See id. The same Joint Technology Committee released a bulletin two weeks later discussing how courts could quickly implement virtual hearings in response to the COVID-19 pandemic. Joint Tech. Comm., JTC Quick Response Bulletin: Strategic Issues to Consider When Starting Virtual Hearings (Apr. 7, 2020), https://www.ncjfcj.org/wp-content/uploads/2020/04/COSA-NSCSC-and-NACM-JTC-Response-Bulletin-Strategic-Issues-to-Consider-When-Starting-Virtual-Hearings-.pdf.

141. The Introduction to AI for Courts bulletin rejects the term “Artificial Intelligence” in favor of “Augmented Intelligence,” indicating the latter better describes how courts would use AI to “enhance human capabilities. . . .” Introduction to AI for Courts, supra note 140, at 1.

142. Id. at 2–4.

143. Id. at 4.

144. Id. at 5–6, 8.

145. Id. at 5–8.

146. Id. at 9.

147. There was tremendous variability in state courts’ responses to the pandemic, as demonstrated in two other pieces in this symposium. N.Y. L. Sch. Fam. L.Q. Editors, Co-Parenting During Lockdown: COVID-19 and Child Custody Cases Before the Vaccine, 55 Fam. L.Q. 173 (2021–22); Univ. N.C. Sch. of Law Research Team, Family Law Court Proceedings in the First Year: The Experience of Each State as Reflected in Contemporaneous Interviews and Reviews of Court Websites and Orders, 55 Fam. L.Q. 195 (2021–22); see also Lynda B. Munro & Nicole M. Riel, Our Virtual Reality: Facing the Constitutional Dimensions of Virtual Family Court, 54 Fam. L.Q. 245, 262–63 n.57 (2020).

148. UNC, supra note 147.

149. Dave Robinson, Battling the Backlog: COVID-19 Pandemic Domestic Relations and Domestic Violence Data, Vimeo (Jan. 2021), https://vimeo.com/492237427.

150. See generally Elizabeth G. Thornburg, Observing Online Courts: Lessons from the Pandemic, 54 Fam. L.Q. 181, 182 (2020).

151. NCSC, Guiding Principles for Post-Pandemic Court Technology 1 (July 16, 2020), https://www.srln.org/system/files/attachments/Guiding%20Principles%20for%20Post%20Pandemic%20Court%20Technology%20%28CCJ%3ACOSCA%202020%29.pdf.

152. Various white papers and reports prepared by the NCSC, CCJ, and COSCA use the word “disruptive,” but not the business term “disruptive innovation.” Harvard Business School professor Clayton Christensen wrote that there are two kinds of innovations: (1) sustaining innovations, which lead to steady product improvement over time, and (2) disruptive innovations, which introduce new attributes to a product. “Disruptive innovation” under Christensen’s theory describes the process whereby new entrants take over an industry first by targeting segments that are overlooked by incumbents. For example, a startup legal services company might service simple, high-volume legal matters for which each case has a low profit margin. By doing so, a new entrant could gain a foothold in the legal services industry. The startup gradually could improve its product and work its way up to larger legal matters, challenge practicing lawyers, and ultimately disrupt the legal services market by displacing lawyers, thereby becoming the new incumbents. Recent judicial reforms facilitate “disruptive innovation,” especially reforms relating to information technology, open court data, and nonlawyer regulatory standards. The employment effects of these and other innovations are real but beyond the scope of this article. See generally Clayton M. Christensen et al., Consulting on the Cusp of Disruption, 91 Harv. Bus. Rev. 106, 109 (2013); Schoonmaker, supra note 6, at 139–51.

153. NCSC, Guiding Principles for Post-Pandemic Court Technology, supra note 151, at 1.

154. Id. at 2–7.

155. Id. at 1–8. Months later, the NCSC issued another report stressing the importance of collecting accurate data in consistent ways because “incorrect data may lead to misleading or wrong conclusions.” See NCSC, Open Data Principles to Promote Court Technology Post-Pandemic 1 (Dec. 10, 2020), https://www.ncsc.org/__data/assets/pdf_file/0028/59671/Open-Data-Principles-Corrected-2.pdf.

156. CCJ & COSCA Res. 2, In Support of the Guiding Principles for Post-Pandemic Court Technology, at 1–2 (July 30, 2020), https://www.ncsc.org/__data/assets/pdf_file/0019/51193/Resolution-2-In-Support-of-the-Guiding-Principles-for-Post-Pandemic-Court-Technology-.pdf.

157. CCJ & COSCA Res. 4, In Support of a Call to Action to Redesign Justice Processes for Families, at 1 (July 30, 2020), https://ccj.ncsc.org/__data/assets/pdf_file/0023/51197/Resolution-4-In-Support-of-a-Call-to-Action-to-Redesign-Justice-Processes-for-Families.pdf.

158. Id. at 2.

159. CCJ & COSCA Res. 2, In Support of Remote and Virtual Hearings (July 28, 2021), https://ccj.ncsc.org/__data/assets/pdf_file/0016/67012/Resolution-2_Remote-and-Virtual-Hearings.pdf.

160. Id.

161. CCJ & COSCA Res. 3, In Support of Process Simplification (July 28, 2021), https://ccj.ncsc.org/__data/assets/pdf_file/0017/67013/Resolution-3_Process-Simplification.pdf.

162. A Model Process, supra note 82.

163. CCJ & COSCA Res. 4, supra note 157, at 2.

164. A Model Process, supra note 82, at 2–4. Descriptions of navigators, concierges, courthouse facilitators, limited license legal technicians, document preparers, and other ways to use nonattorneys to help litigants can be found elsewhere. See generally Schoonmaker, supra note 6, at 166–67, 185–88.

165. Principles, supra note 81, at 9.

166. A Model Process, supra note 82, at 6.

167. Id. at 6.

168. Principles, supra note 81, at 10.

169. A Model Process, supra note 82, at 4–5.

170. Id. at 7.

171. Id.

172. Principles, supra note 81, at 12–15.

173. A Model Process, supra note 82, at 6–11.

174. Principles, supra note 81, at 12.

175. A Model Process, supra note 82, at 8.

176. Id.

177. Id.

178. Principles, supra note 81, at 13.

179. A Model Process, supra note 82, at 9.

180. Id.

181. Id.

182. Id.

183. Id.

184. Id. at 10.

185. Id.

186. Id.

187. Principles, supra note 81, at 15.

188. A Model Process, supra note 82, at 10.

189. Id.

190. Id. at 10–11.

191. Id. at 10.

192. CCJ & COSCA Res. 2, In Support of Continuing Efforts to Meet Civil Legal Needs (Feb. 9 & Feb. 12, 2021), https://ccj.ncsc.org/__data/assets/pdf_file/0016/60226/Resolution-2-In-Support-of-Continuing-Efforts-to-Meet-Civil-Legal-Needs.pdf.

193. Id.

194. Cady Initiative Demonstration Sites, NCSC, https://www.ncsc.org/services-and-experts/areas-of-expertise/children-and-families/fji-update/fji-pilot-sites. The counties were King County, Washington; Miami-Dade County, Florida; Cuyahoga County, Ohio; and Pima County, Arizona. Id. The county pilot projects paused in 2020. “Due to the pandemic, implementation of the FJI Principles in four pilot jurisdictions was halted and the project shifted to providing insights that help courts navigate the new challenges they faced, including the development of additional recommendations that have been endorsed by CCJ and COSCA in Resolution 4.” Michael Houlberg & Janet Drobinske, Pandemic Positives: Extending the Reach of Court and Legal Services 2 (IAALS Oct. 2020), https://iaals.du.edu/sites/default/files/documents/publications/pandemic_positives.pdf. The NCSC also has reported positive implementation efforts in Marion County, Indiana, and Johnson County, Kansas. See Alicia Davis & Michael Saini, NCSC, Trends in State Courts, Pathways Through the Pandemic: An Application of Family Justice Pathways in Three Courts (2021), https://www.ncsc.org/__data/assets/pdf_file/0019/66331/pathways_through_the_pandemic_Davis-Saini.pdf.

195. Conn. Jud. Branch, Opportunity Amid Crisis: Responding to the Challenge of COVID-19 and Beyond 37 (2020), https://www.jud.ct.gov/Publications/ES191_2020.pdf.

196. This section will not address incremental announcements, orders, proposals, and politics relating to adoption in Connecticut. For more information about the Connecticut Judicial Branch’s response to COVID-19, see COVID-19 Updates, Conn. Jud. Branch, https://jud.ct.gov/COVID19.htm.

197. What to Expect on the Resolution Plan Date in Your Divorce, Custody, or Visitation Case, Conn. Jud. Branch (2021), https://www.jud.ct.gov/FAQ/ResolutionPlanDate.pdf.

198. Id. In late December 2020, the Judicial Branch issued new Standing Orders for family law matters, which discussed filing requirements for a Resolution Plan Date (financial affidavit, etc.), but it did not announce what would occur at a Resolution Plan Date. Chief Admin. Judge, Conn. Fam. Div., Superior Court for Family Matters Standing Orders—Management Order for Trials, Hearings, Case Dates, and Resolution Plan Dates, https://www.jud.ct.gov/HomePDFs/StandingOrder_effective_0121.pdf.

199. Conn. Jud. Branch, Connecticut’s New Family Court Process, Vimeo (Mar. 4, 2021), https://vimeo.com/511469331/7032d30276 [hereinafter Connecticut’s New Family Court Process].

200. Id. at 2:20.

201. Id. at 5:45–5:50. The Landscape of Domestic Relations Cases report indicated that the mean time to dispose of an uncontested case was 337.61 days, whereas the mean time to resolve a contested case was 341.05 days. As discussed above, at the median it takes 147 days to resolve an uncontested case and 196 days to resolve a contested case. Landscape of Domestic Relations Cases, supra note 3, at 18. The Landscape report itself describes the median as generally the better measure. Id. at 23. See supra notes 65–74 and accompanying text.

202. Connecticut’s New Family Court Process, supra note 199, at 8:20–9:04.

203. Id. at 10:00.

204. Id. at 13:45. See also Davis & Saini, supra note 194, at 31.

205. Counselors should avoid adversarial language and use motivational interviewing techniques. See Principles, supra note 81, at 3–4.

206. Connecticut’s New Family Court Process, supra note 199, at 16:22.

207. Id. at 17:00–17:15.

208. Id. at 19:03.

209. The amendments altered longstanding practices for approving final agreements in family cases by allowing many more cases to proceed to judgment without the litigants physically appearing in court. See, e.g., 2021 Conn. Legis. Serv. P.A. 21-104 § 21 (H.B. 6505) (West) (amending Conn. Gen. Stat. § 46b-66).

210. Connecticut’s New Family Court Process, supra note 199, at 20:30–22:13.

211. Id. at 32:08–34:22. “Short calendar” existed for many decades in Connecticut; it allowed a litigant to appear before a judge within approximately two weeks of filing a motion, along with many other family cases scheduled for a hearing on the same day. Short calendar was almost universally criticized, as overburdened judges were asked to resolve hundreds of motions on a single day that were filed in dozens of cases, while attorneys and parties waited anxiously. Sometimes litigants and counsel would wait all day, but their cases would not be called because the court ran out of time. Yet, in the author’s experience, the process did help address myriad temporary issues, often through agreements negotiated in the courthouse and deterrence of problematic behavior.

212. Id. at 20:30–22:13.

213. Id. at 22:13–27:36.

214. Id.

215. See Chief Admin. Judge, Conn. Fam. Div., Superior Court for Family Matters Standing Orders—Management Order for Trials, Hearings, Case Dates, and Resolution Plan Dates, effective July 1, 2021, https://www.jud.ct.gov/external/super/StandOrders/Family/statewide_family_TMO21.pdf. Another standing order facilitates resolution of more discovery disputes without a hearing. See Chief Admin. Judge, Conn. Fam. Div., Superior Court for Family Matters Standing Orders re Discovery Motions, effective July 1, 2021, https://www.jud.ct.gov/external/super/StandOrders/Family/reDiscovery.pdf.

216. There is ambiguous guidance from the Judicial Branch on whether the special masters program eventually will be formally reintegrated into the family court process. The Judicial Branch did encourage members of the Bar to resume the program on their own without traditional court involvement in scheduling matters. Letter from Michael A. Albis, Chief Admin. Judge, Fam. Div., Conn. Sup. Ct., to Attorney Cecil Thomas [President, Conn. Bar Ass’n] et al., Re: Pathways Process for Family Cases (Oct. 7, 2021).

217. Connecticut’s New Family Court Process, supra note 199, at 27:38–29:42.

218. Conn. Bar Ass’n Fam. Law Sec., Survey on Current Court Functioning (Oct. 4, 2021) (distributed electronically to CBA Family Law Section members on October 4, 2021, and on file with author) [hereinafter CBA Law Sec. Survey].

219. The survey does not indicate how many attorneys were invited to respond. However, 48% “strongly disagreed” and 36% “disagreed” that their clients had meaningful access to justice, whereas 1% “strongly agreed” and 4% “agreed” that they did. The remaining 11% did not express an opinion. See id. at 10/17.

220. See id. at 2/17 to 3/17. While these data are concerning, several of the questions could lead to misleading responses. For example, “Q3 Have you filed a dissolution of marriage action or post judgment motion in 2021, and received an initial Resolution Plan Date more than five months from the date of filing?” Id. at 3/17. An attorney who filed 10 marital dissolution actions and received one resolution plan date more than five months from the date of filing would answer “Yes.” Nonetheless, according to Connecticut’s version of the Model Process, parties should receive an initial triage within 45 days after commencing an action. See supra note 204 and accompanying text.

221. CBA Law Sec. Survey, supra note 218, at 1/3 to 2/3.

222. Id. at 4/17 to 6/17, 11/17.

223. Id. at 16/17. One comment stated, “The new pathways system has created a road to nowhere, no hearings, no access, no justice.” Id. at 2/3.

224. The Executive Committee of the Connecticut Bar Association’s Family Law Section sent a seven-page letter dated November 28, 2021. It contained numerous specific suggestions, such as providing timely and predictable hearings to resolve motions for temporary orders. Letter from Exec. Comm. of the Fam. Law Sec., Conn. Bar Ass’n, to Chief Justice Richard A. Robinson, Conn. Supreme Ct. (Nov. 28, 2021) (on file with author).

225. State of Conn. Judicial Branch, The Pathways Process in Your Divorce, Custody or Visitation Case, https://www.jud.ct.gov/HomePDFs/PathwaysProcess.pdf (last visited Dec. 29, 2021).

226. See generally Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving in (1981) (introducing the concept of BATNA).

227. There are other definitions of “systemic innovation,” but this is how the term is defined for purposes of this article. See generally Gerald Midgley & Erik Lindhult, What Is Systemic Innovation?, Hull Univ. Bus. Sch., Rsch. Memorandum No. 99 (2017), https://www.researchgate.net/publication/315692364_What_is_Systemic_Innovation.

228. For example, requiring parties to e-file documents externalized the task of organizing and filing pleadings, which work traditionally was performed by court clerks.

229. Geoffrey A. Moore, Crossing the Chasm: Marketing and Selling High-Tech Products to Mainstream Customers 7 (1991).

230. Id. at 7.

231. Id. at 4–5.

232. Id. at 36.

233. Open, With Care, supra note 39, at 6–7.

234. Id.

235. A growing body of scholarship examines the benefits and risks of using predictive algorithms in the justice system. See generally Marie-Claire Aarts, The Rise of Synthetic Judges: If We Dehumanize the Judiciary, Whose Hand Will Hold the Gavel, 60 Washburn L.J. 511 (2021); Sarah Valentine, Impoverished Algorithms: Misguided Governments, Flawed Technologies, and Social Control, 46 Fordham Urb. L.J., 364 (2019); Ric Simmons, Big Data, Machine Judges, and the Legitimacy of the Criminal Justice System, 52 U.C. Davis L. Rev. 1067 (2018).

236. Some of these topics were addressed in the first Family Law Quarterly COVID-19 issue. See generally Munro & Riel, supra note 147. There is much more to write on these issues.

237. For example, the open court data policies, combined with enhanced collection and sharing of data in machine-readable formats, marks the end of functional privacy in family law cases. Opening the private lives of millions of Americans to public inspection through open court data policies will expose personal information to minor children, companies, and perpetrators of domestic violence and others who might misuse the information. Suggestions such as prohibiting litigants from recording virtual hearings are patently absurd and utterly unenforceable. One can imagine a drastic judicial response to the problems it is about to create, such as by removing all Streamlined Pathway cases from the judicial system to avoid open court data policies. The privacy and personal security issues demand far greater attention than shown in the publicly available white papers and reports prepared by the FJI, NCSC, CCJ, and COSCA.