As I was preparing to for a conversation about my view of the access-to-justice crisis, I was struck by three recurring themes. Because of the global pandemic and now civil unrest sparked by the police killing of George Floyd:
- Courts are undergoing rapid experimentation and adoption of new technologies.
- The level of collaboration, discussion, and sharing of lessons learned is consistent, at an urgent level, with a focus on immediate and long-term solutions.
- No one I’m hearing who is in the thick of problem solving is planning on returning to the pre-pandemic A2J status quo.
My hope is that this mix of urgency and sharing of experiences to more efficiently and effectively respond, coupled with a laser focus on solutions is leading to a Renaissance for the delivery of legal services.
Well before the pandemic and mass protests, there was a growing justice gap for low- to mid-income populations. The justice system had lost the trust of disenfranchised populations and was getting more difficult and complex to access for all. Access points were centered around a dated model of lawyering that is incapable of effectively managing demand for even basic services.
There was a near universal failure to, as futurist Richard Susskind has argued, look beyond courts as a place and think of them as a service.
A Revelation: Collaboration
Pre-pandemic there was much hand wringing, talk of incremental changes, and a few breakthroughs in the name of innovation and access to justice. That snail’s pace has been replaced by a bullet train of progress.
Judges, court administrators, and lawyers from every corner of the country are collaborating. Indeed, collaboration seems like a revelation in legal right now.
It’s not like administrators and judge from around the country weren’t talking before. But now the conversations are focused, productive, and solutions-oriented. They’re not talking about hypotheticals and they’re talking about immediate solutions and long-term planning to address access issues, operational efficiencies, and whole cloth rethinking of how cases are approached.
Administrative Judge Jennifer Bailey of Miami shared during a May 19 National Center for State Courts webinar that rethinking case management is one necessary change. The old way of setting trial dates to manage a docket is the least efficient approach to civil dockets, especially now.
“Everything orbits around a trial date. It makes no sense,” she said. We block out weeks of our schedules for trials, for calendars and they don’t happen.”
Bailey cited a recent study of civil cases in Miami, where it was discovered that between .05% and 2% of cases were resolved by a jury trial. The rest resolved at some point earlier in the process.
So is the problem the trial or the date? Judge Bailey argues it’s the date. A better approach to cases, she says, using data and experience, will exponentially improve the court process and speed up resolutions in the vast majority of cases.
This is the time to shift and train staff. Otherwise, she cautioned, “Justice is going to grind to a complete gridlock.”
My hope is that the thousands of judges and court managers sharing and learning right now are actively doing and experimenting at the same time.
With that momentum, we could be at the beginning of a legal services Renaissance, with rapid change and adoption leading to systemic solutions that increase access, and increase trust and reliance on courts as neutral problem solvers rather than hostile adversaries.