Courts across the country, from small municipal courts to the Supreme Court, have made giant strides in the use of technology in the wake of COVID-19. Historically slow to embrace technology, courts have shown unprecedented flexibility in the past six months; video- and teleconference hearings, text notifications, virtual juries, chatbots, and other technologies have become staples in some courts rather than exceptions. Yet once the pandemic is over, will it stay that way?
The Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA) are urging state court officials to continue this momentum, and they have recommended six principles related to courts’ use of technology going forward, outlined in Guiding Principles for Post-Pandemic Court Technology. The resource paper argues that “[c]ourts 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.
“The COVID-19 pandemic is not the disruption courts wanted. But it is the disruption that courts needed: to re-imagine and embrace new ways of operating; and to transform courts into a more accessible, transparent, efficient, and user-friendly branch of government.”
Here are the six principles, and some steps court officials can take to implement them:
- Ensure principles of due process, procedural fairness, transparency, and equal access are satisfied when adopting new technologies. Make sure litigants receive proper notice of hearings. Use plain language to present legal information. Design systems that connect litigants with legal help. Review online dispute resolution agreements prior to hearings.
- Focus on the user experience. Make it easier for people to use court services by expanding online opportunities and communication channels with court customers, including under-served communities, people with disabilities, and people who are less than proficient in English. Make sure online services are mobile responsive, compatible with the most commonly used browsers, and easy for people to provide the necessary information to advance their cases.
- Prioritize court-user driven technology. Identify problems in order to select the best technological solutions and get input from all stakeholders, including lawyers and litigants. “Going forward, courts should make intentional technology decisions, based on the needs of and feedback from a range of diverse court users.” By figuring out what unique challenges their particular court-goers are facing before selecting a specific technology, as well as testing the anticipated new processes with those people, courts can do their best to ensure they’re providing services that are responsive to the actual needs of their customers.
- Embrace flexibility and willingness to adapt. “Courts should adopt an agile approach to piloting innovation technology.” Test and adapt, try and fail, and move on from technology that isn’t solving problems. Start with a viable product that doesn’t impact fundamental due process. Examine and re-examine the product. Be open to public-private partnerships to refine it.
- Adopt remote-first (or at least remote-friendly) planning, where practicable, to move court processes forward. Move as many court processes as possible online. Allow for remote attendance at hearings using telephone or video. Ensure that staffers, lawyers, and litigants have the training and resources they need to participate. Figure out how to involve court customers with no or limited access to the internet.
- Take an open, data-driven, and transparent approach to implementing and maintaining court processes and supporting technologies. Protect personal identifying information. Collect data at frequent intervals and ensure it helps court leaders accurately assess the technology’s impact. By user-testing technology with the public during the development stage, collecting data regularly, and evaluating all technology innovations to aid with continuous improvement, courts can make technology-related decisions and improvements that are well informed. Data collection is incredibly important during this time, which IAALS has also recently advocated.
“Technology is not a panacea,” the resource paper states. “It does not and should not replace the fundamentally human character of justice. However, it provides a unique opportunity for courts to ensure that all parties to a dispute—regardless of race, ethnicity, gender, English proficiency, disability, socio-economic status or whether they are self-represented—have the opportunity to meaningfully participate in court processes and be heard by a neutral third-party who will render a speedy and fair decision.”