In his excellent book Online Courts and the Future of Justice, Richard Susskind aptly summarized that “even in justice systems that we look upon as the most advanced, dispute resolution in public courts generally takes too long and costs too much, and the process is unintelligible to all but lawyers. In broad terms, we call this the ‘access to justice’ problem.” Courts continue to face this issue, recognizing the critical importance of effectively and efficiently serving the many specific communities and stakeholders to resolve their disputes through various suitable methods. There are many pathways to improve access to justice and no single solution that resolves all access-to-justice concerns. Court responses range from providing facilitated self-help services, plain language forms, and website content, simplifying court processes so users without a legal education can navigate how to file their documents and meaningfully participate in court proceedings to move their case forward, to courts triaging individual cases to reflect that not every case should be managed in the same fashion to reach a resolution. Some courts have successfully used differentiated case management to improve efficiency and create a better experience for court users. Such services and changes are essential to building out an access-to-justice ecosystem that will truly provide enhanced opportunities for justice for all.
Courts should also use technology to improve access to justice. The COVID-19 pandemic forced courts to experiment and make changes to keep operating, largely through technology. Those changes advanced the notion that courts are a service, not a place, and helped modernize the user experience when so many daily activities are enabled by internet-based technologies.
This article discusses this use of technology and how it impacts and enhances access to justice. This article also discusses the Joint Technology Committee (JTC) formed by the National Center for State Courts and other organizations and the committee’s efforts to further these causes. Courts across the country are successfully providing remote facilitated self-help services, using chatbots to answer questions 24/7, livestreaming court proceedings, offering online dispute resolution for some case types, sending text and email reminders for hearings and payment due dates, providing the ability for users to self-schedule hearings online, using video remote interpreters, and using artificial intelligence tools.
The Joint Technology Committee
The JTC is a national entity with members appointed from and by the Conference of State Court Administrators, the National Association of Court Management, the National Center for State Courts, the Court Information Technology Officers Consortium, and the Integrated Justice Information Systems Institute. The JTC currently has 15 members, and membership rotates irregularly to allow for turnover.
Started more than 20 years ago, the JTC has changed over time. The current mission of the JTC is to provide trusted and actionable thought leadership, guidance, education, and training for court use of technology to improve the administration of and access to justice. The JTC provides education to the court community by producing papers called Resource Bulletins and webinars on specific topics, many of which focus on improving access to justice through technology solutions. These JTC products focus on how new technology tools can create efficiencies, improve convenience, or simplify processes. Some highlight considerations to decide whether to adopt a new technology or showcase jurisdictions that have adopted a new technology solution and the benefits it has provided. Substantial additional information about the JTC, as well as its publicly available Resource Bulletins, can be found on the NCSC website.
Using Technology to Help Self-Represented Litigants
Recognizing that self-represented litigants (SRLs) are a significant and important portion of the public that courts serve, many courts focus specifically on improving the user experience for those representing themselves. In some case types, 75 percent of the cases involve at least one SRL. Courts have been increasingly using online platforms and technology tools to help SRLs address matters in their disputes in a more convenient and modern way. JTC advocated for Teleservices for Courts in its August 2019 Resource Bulletin, recognizing that “Innovative uses of telephone and video technologies are making services more accessible to more people at lower costs and with higher levels of success and customer satisfaction.” And a few months later, the emergence of the coronavirus spurred the most significant change in courts with the use of remote and hybrid court proceedings.
Once a necessity to keep cases moving during the pandemic, many courts now recognize that the convenience for litigants to appear by video or phone is worth continuing regardless of the end of the public health emergency. Some courts like those in Minnesota, Arizona, and Alaska have created lists of court proceedings that are identified as presumptively remote or in-person. Commonly, the distinction between evidentiary and nonevidentiary proceedings determines what type of proceeding is allowed—with in-person for evidentiary hearings and trials and remote proceedings for nonevidentiary hearings or administrative matters. Providing a list of presumptive hearing types promotes consistency between courtrooms and courthouses so that litigants and attorneys know what to expect and can plan accordingly. When the option to appear by a remote method exists, litigants lose less work or school time and do not need to find transportation or parking, or find childcare. Lawyers and court interpreters can work in more than one location, seamlessly moving between online hearings without needing to leave their offices.
While the concern about the digital divide is often raised such that not everyone has internet access or a data plan on their smartphone, that issue is diminishing with the availability of internet through Starlink’s low earth orbit satellite internet service in our most rural locations. Also, some jurisdictions have created “Zoom rooms” or placed kiosks or privacy pods in public places (including, but not limited to, courthouse locations) for litigants to appear remotely. Others make tablets available to borrow for remote hearings or virtual jury selection. And it is important to remember that just about everyone has access to a telephone and appearing by phone should be an option in most cases. The availability of remote hearing participation is a breakthrough in improving access to justice, unlike anything seen in a courtroom since the creation of the United States.
Virtual Self-Help Centers
Courts have offered facilitated self-help services for years, serving self-represented customers by talking directly to an experienced facilitator who can explain court procedures and options for forms, as well as answer questions. Most self-help centers have been located in brick-and-mortar facilities, requiring customers to walk in for help, sometimes facing long lines for service. A few court programs were designed to be available exclusively by remote method such as phone or video, including in Alaska and Utah, with a few others providing both in-person and remote services, such as in Orange County, California, and Minnesota.
The pandemic also spurred additional access to remote facilitated self-help services, with the alternative being no available self-help services when courthouses were physically closed to the public. Now, several jurisdictions are providing self-help services where the facilitator and customer interact face to face through video and have the ability to screen share documents, including the Cuyahoga County Help Center in Ohio and the Essex Probate and Family Court Virtual Registry in Massachusetts. The Massachusetts Court System created a Virtual Court Service Center through Zoom to provide help with legal information, court forms, and referrals to legal and community-based organizations.
Self-help centers are using video platforms to teach classes to self-represented litigants; Alaska shifted its in-person self-help classes about knowing what to expect during divorce and custody cases, and preparing for hearings and trials, to Zoom, expanding its reach from the largest court to a statewide audience. At least one courthouse in the city of East Lansing, Michigan, transformed its customer service operation to offer a Zoom virtual counter because it was so popular during the pandemic. The main customer service clerk moves the customer into a breakout room with the relevant staff member who has expertise in the case type or information about which the customer is inquiring.
Some courts use chatbots (chat+robot), software that simulates human conversation through text messages, voice commands, or both, to provide customer service and self-help information. Commonly used on retail websites as a customer service tool, courts can use chatbots to improve efficiency, provide more accurate and consistent answers, expand coverage, and better serve the public. Chatbots, available to the public 24/7, can help courts provide customer service outside of business hours to anyone with an online connection.
As JTC noted in Getting Started with a Chatbot, “A simple Word document can be used to compile questions and answers needed to power the chatbot’s interactions.” New Jersey state courts use a chatbot to respond to public questions. To build the NJ system, court staff assembled Q&A pairs using website FAQs, standard operating procedures, manuals, and other existing information resources. The 11th Judicial Circuit in Miami, Florida, uses a chatbot named SANDI to provide 24/7 website navigation and features text-to-speech and voice command technology that allow visitors with an audio and microphone-enabled device to verbally request help. SANDI greets visitors to the court website in an online chat window and can direct them to case numbers, judicial directors, Zoom IDs, and other useful information. Any questions a chatbot answers frees up court staff to deal with other matters. Also, a chatbot creates a feedback loop to the court by providing insights into the type of questions the public asks, helping the court focus on the development of new chatbot questions and answers, additional customer service, and self-help website content. More sophisticated AI-based tools are becoming available to enable chatbots to answer questions from a much larger internet-based training model.
Public Access to Live Court Proceedings
Initially used as a way to provide public access to court proceedings when courthouses were physically closed to the public, livestreaming allowed courts to meet this constitutional responsibility. In the post-pandemic world, many courts continue to livestream hearings and trials. Some judges livestream every proceeding in their courtroom, and others are more selective. Commonly, all case participants are connected by a video platform such as Zoom that is broadcast to a larger audience online. Some courts use YouTube, and others have created their own streaming portal on the court website that is free of uncontrollable ads. Directories of courtroom livestream links and instructions on how to view the livestream are essential for public access.
After the pandemic, the Alaska Supreme Court issued a supreme court order providing that “high-profile” proceedings, appellate oral arguments, and some felony criminal matters should be livestreamed. The order’s goal is to provide access to justice to proceedings without needing to physically travel to a courthouse and provide enhanced access to matters of interest to many Alaskans who may live a plane ride away from where the case is being heard. Courts that have livestreamed matters of public interest such as a redistricting lawsuit saw huge numbers of viewers who could never fit in a courtroom gallery. Livestreaming provides an important opportunity to educate the public who may never be personally involved in a matter before the court about what occurs during a hearing or trial. And it provides convenience to observe a proceeding without the barriers of finding transportation or childcare.
Court-Affiliated Online Dispute Resolution
Courts offering online dispute resolution (ODR) preceded the pandemic, but its adoption during the pandemic occurred at a rapid pace. ODR provides an online platform for litigants to asynchronously attempt to reach agreements through negotiation or mediation and in some cases resolve matters through an online trial held asynchronously. ODR has been used for over 20 years to resolve billions of e-commerce disputes between individuals outside of court. As the 2017 JTC Resource Bulletin ODR for Courts notes, “Significant opportunities exist for courts to leverage ODR to expand services while simultaneously reducing costs and improving the public’s experience and therefore, satisfaction. For those reasons, it is becoming central to the discussion of the future of courts.”
In the court context, ODR is now commonly used to resolve matters in small claims, debt collection, landlord-tenant, and traffic violations. It provides a convenient way for litigants to access justice from any location with an internet connection and resolve their dispute without ever stepping into a courthouse on a much faster timeline than a traditional court process. Some courts, like those in Utah, have mandated ODR for small claims, while others offer it as an option, like those in Hawaii. Alaska is soon to launch its ODR platform; while not mandatory, the court system will encourage participation through a greatly reduced filing fee of $25 to submit an agreement to a judge to review for issuance of an enforceable court order. It also provides a free pathway where parties can use the platform to resolve disputes by agreement; the fee only occurs if a court order is sought. While it may not be the right solution for all litigants, ODR should be considered as a resolution option for many civil matters. It offers 24/7 convenience to litigants, and the online forum may be a more comfortable and quicker way to try to resolve disputes for some individuals compared to the formality and lengthier process in traditional courthouse proceedings.
Text Reminders of Court Proceedings
Texting has become a primary communication source for many Americans, and courts have recognized its importance in reaching its customers. Dentists’ and doctors’ offices have long realized the best way to remind their patients about upcoming appointments is through a text message. Courts are catching up to communicate with litigants in this fashion. The 11th Judicial Circuit of Florida in Miami allows customers to subscribe to receive text alerts about upcoming court hearings in criminal, traffic, civil, family, or probate cases by providing the case number and a mobile phone number. The Minnesota Judicial Branch offers a service for parties to sign up for text or email hearing reminders for eligible case types. The Los Angeles County Superior Court has a hearing reminder service where court users (litigants, attorneys, law enforcement, and the public) can schedule a text message or email reminder for public hearings. Text reminders about court dates and jury service are occurring in many locations, with litigants expecting this easy communication method to be offered.
Online Scheduling of Court Hearings
Similar to restaurant apps that offer selection of online reservation times, during the pandemic, some courts offered online scheduling for court proceedings. This has enabled litigants and lawyers to choose when it would be convenient for their next hearing to occur. The 11th Judicial Circuit of Florida in Miami has a program called courtMAP that allows litigants and attorneys to self-schedule motion calendars, hearings, and trials. While this does not appear to be a widespread offering by courts, giving court users the choice of when it is convenient to appear to minimize the adverse impacts on other parts of life such as work, school, childcare, and transportation would improve access to justice.
Video Remote Interpreters
The pandemic also spurred the adoption of the use of video remote interpreters for court proceedings. Efforts were made for several years to promote this method of providing interpreters to increase the availability of certified and qualified interpreters because no jurisdiction has enough resident interpreters in all languages required. Using interpreters from other states greatly expands the pool of qualified interpreters. It also reduces the costs for courts because paying for travel time and associated expenses is not required. Interpreters can shift from one proceeding to the next without traveling to different court locations, increasing their ability to work more frequently. Similar to other technologies to improve access to justice, it took the necessity of not being in person for public health reasons to force courts to find solutions for court participants who do not speak English. The videoconference platforms now used for court proceedings, such as Zoom and Webex, include the ability to enable language interpretation, allowing the interpreters to provide their own audio channels for the target language. Attendees can select the audio channel to hear the interpreted audio from the interpreter or they can mute the original audio instead of hearing it at a reduced volume. The Alaska court system has long relied on video remote interpreters to provide interpretation in court proceedings. This has increased the quality and availability of interpreters because certified interpreters from other jurisdictions are used and travel costs are minimized. The National Center for State Courts has offered a number of free training programs for court interpreters to ensure their comfort with videoconferencing platforms to encourage an increased pool of nationally available trained court interpreters for video remote interpreting.
Generative Artificial Intelligence
Artificial intelligence, commonly called “AI,” is the use of technology to perform faster and better the cognitive functions we usually associate with human minds such as perceiving, reasoning, learning, interacting with an environment, problem-solving, and even exercising creativity. Machine learning is a form of AI based on algorithms that are trained on data to detect patterns and make predictions and recommendations by processing data and experiences, instead of receiving explicit programming instruction.
JTC’s 2020 Resource Bulletin Introduction to AI for Courts recognized that many court technology systems have been leveraging some forms of AI. At its most basic, commonly used spell checkers use AI, as well as every internet search, and it is built into legal research engines. E-filing systems use optical character recognition (OCR), the electronic process used to capture information from typed, printed, or handwritten text. Some ODR platforms are using sophisticated language processing capabilities including sentiment analysis and automated summarizing to help de-escalate interactions between parties. Now, generative AI is the newest frontier about which courts are grappling. Generative AI is a model that generates content in response to a prompt. ChatGPT is the most well-known model that interacts in a conversational way, but there are several others commonly used. This technology is advancing at such a rapid pace that it is difficult to evaluate and understand its implications. It has great potential to improve access to justice by making readily available self-help information for self-represented litigants to draft up pleadings, fill out forms, conduct legal research, and even evaluate options to move forward. Given the rapid pace of consumption of training data (essentially the entire internet’s information), generative AI has the capacity to provide enormous benefits, democratizing access to information in the legal sphere. However, at the current stage of development, the technology is prone to “hallucinations,” which essentially are fabrications that the AI makes up to answer questions. The danger of litigants submitting filings that are rife with incorrect legal analysis is real, and courts must determine whether their responsibility will shift to determine accuracy in a system that has long relied on the adversarial process to bring out the facts.
Technology is and must play an essential role in transforming the user experience in accessing justice through courts. There are innovative practices using technology solutions occurring throughout courts across the United States. The Joint Technology Committee keeps apprised of technology trends, cutting-edge technology solutions, and technology tool usage in courts; it shares that information with the greater court community through written, publicly available Resource Bulletins and webinars. As highlighted in this article, these include provision of remote facilitated self-help services, participation in remote proceedings, website chatbots, live-streamed court proceedings, ODR, text hearing reminders, online self-scheduling capability, video remote interpreters, and artificial intelligence tools.