If we rewind to about two years ago, as we were getting confirmations of a novel virus in China, few of us at the time would have had the imagination to envision the scope of disruption and devastation that would follow in what is, for now, the next two years. The restricted social contact has come at a cost, but it has also accelerated many adaptations. As the shortened saying goes, “necessity is a mother…” Courtrooms in a variety of American venues tried a number of adaptations to allow the wheels of justice to continue to turn, albeit more slowly and in some different ways.
Of course, we are not quite out of the thicket yet, but it isn’t too soon to start taking stock. We are now reaching the phase where many groups are offering assessments and “lessons learned” that bear not only on the next emergency, but also on what we want to be normal operations going forward. In the current SMU Law Review Forum (Thumma & Reinkensmeyer, 2022) there is a comprehensive report from the Arizona Supreme Court COVID-19 Continuity of Court Operations During Public Health Emergency Workgroup. Having met weekly through the pandemic and conducted three surveys of Arizona Courts, the bar association, and the public, this group’s final white paper lists its findings and recommended best practices, not just in protecting public health and safety, but also in increasing access, expanding technology, and improving court communication and management going forward. “While many pandemic-specific challenges will subside,” the group notes, “courts are encouraged to retain the sense of urgency and momentum recently achieved in mitigating access to justice impediments.” Reviewing the report, four main themes stood out to me.
Treat Court as a Function, Not a Place
Arizona’s report quotes one survey respondent commenting, “to the extent possible, we should be seeing the court as a service and not a location.” It was a necessity in a time of social distancing to emphasize the purpose more than the place. But those interested in reforming and improving the courts will point out that, even when we are a little less reluctant to share our indoor air, it will still help to prioritize the court’s essential functions over the courtroom’s traditional trappings. That said, we need to remember that the locations are imbued with meaning. We cannot ignore the symbols, but we should also look for ways to update and to recreate them.
Where You Can Avoid Crowding and Waiting, Do It
In many of the court’s day-to-day operations — think here not just about the big trials, but about hearings focused on more common issues of evictions and collections — there are times and places where the queuing and the foot traffic can be overwhelming, particularly in big city courthouses. The need to avoid that during the pandemic can translate into an advantage in avoiding that during normal times. Courts dramatically expanded e-filing, and created electronic hubs to make the process more accessible, especially to those without counsel. In-person contact with a clerk was conducted online. Instead of bringing a hundred or more potential jurors together for day one of trial, online tools were used to pre-screen the jurors, adding electronic questionnaires, and conducting questioning by Zoom. For many, that meant that they could fulfill their duty in a couple of hours or less, rather than an entire day at the courthouse downtown. The report found that moving these steps online took less time, led to fewer no-shows, and ultimately required fewer citizens in the panels. In the survey of the Arizona courts, 60 percent agreed that juror screening should include the use of technology-based platforms after the pandemic, and fully a quarter felt that jury selection itself should stay online after the pandemic.
Where You Can Increase Access, Do That Too
Perhaps the biggest takeaway is that relocating legal processes from physical courtrooms to technological spaces actually increased access to justice. Steps like instituting online filings, and adding remote hearings, jury selections and trials made it easier for more people to participate. For example, the Arizona courts found that adding more options for pro se litigants led to a dramatic decline in eviction case no-shows. The task force recommended going further by adding robust broadband access, building remote-appearance rooms, and creating onsite kiosks to provide direct access to online court features, along with plain language guides on how to use it all. Embracing such measures can ensure that courts come closer to the ideal in working for everyone. As one survey respondent enthused, it is an “excellent opportunity to dramatically expand access to justice.”
But Address the Barriers As Well
The net effect of moving court functions online is to expand access, since those who are excluded based on the need to set aside time and to travel appears to be greater than those who are excluded due to technology. But some are still excluded due to technology. For that reason, the Arizona courts recommend addressing the “digital divide” separating those with laptop cameras and high speed internet from those without. Courts should invest in the technology and make it available in public spaces like courthouses and libraries, while also initiating educational campaigns to make sure people are aware.
The full report is worth looking at (and a full text version is available at the link above). The overarching message from Arizona’s experience is that an innovative attitude was essential not just in weathering the pandemic, but also in coming closer to the ideal of a fully functioning and accessible justice system for everyone. The group concluded,
“Continuing various practices identified during this time in the post-pandemic world has the potential to increase access to justice. Allowing parties to appear through virtual platforms has significantly increased appearance rates, recognizing courts need to work to bridge the digital divide and provide appropriate training and resources for such an alternative. Expanding the use of technology promises to have benefits for all participants in the post-pandemic world, and courts should continue to adopt and expand the use of various technologies in serving the public.”
Thumma, H. S. A., & Reinkensmeyer, M. W. (2022). Post-pandemic Recommendations: COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup. In SMU Law Review Forum (Vol. 75, No. 1, p. 1).