Starting in March 2020, all 50 states and Washington, D.C., began offering video hearings, despite having never done so before.
The pace of civil courts’ adoption of technology during the height of the pandemic was unprecedented and helped them improve participation rates, but it also disproportionately benefited people and businesses with legal representation, according to a Pew Charitable Trusts study.
Released Dec. 1, the research shows that starting in March 2020, all 50 states and Washington, D.C., offered online hearings despite having no history of remote civil court proceedings. For example, Texas held 1.1 million remote civil and criminal proceedings between that month and February 2021 even though it had never held a civil hearing via video before. Michigan courts held more than 35,000 video hearings between April 1 and June 1, 2020, and zero during the same time frame in 2019.
Courts digitized other tasks, too, such as allowing for e-filing. Before the pandemic, 37 states and D.C. allowed some people without lawyers – civil courts don’t guarantee a right to counsel like criminal courts do – to e-file court documents, but since March 2020, 10 more states began allowing it. Additionally, many states changed their policies in favor of e-notarization.
In terms of participation rates, the report cites Arizona, where civil courts experienced an 8% reduction year-over-year in June 2020 in the number of default judgments, in which defendants don’t show up for hearings. Michigan saw its no-show rate in debt collection cases flipflop, and parent participation in child welfare cases in Texas increased with video hearings.
Litigants with lawyers found that technology facilitated case filings, Pew found. “For example, after courts briefly closed, national debt collectors who file suits in states across the U.S. quickly ramped up their filings, using online tools to initiate thousands of lawsuits each month,” the report states.
But people without lawyers, and especially those who have accessibility impairments such as no high-speed internet or computers “faced significant hurdles when trying to access courts using the newly available tools,” the report adds.
The same was true for people with limited English proficiency, the report states. It cites the National Center for Access to Justice’s 2021 Justice Index, which scores states from 0 to 100 on their adoption of policies related to disability accessibility and language access, including court access for people without lawyers. The index found that 44 states scored below 50 for accessibility, and 31 scored below 50 for language access.
Groups formed in some states to provide guidance on tech use in courts. In April 2020, the Michigan Virtual Courtroom Task Force issued standards and guidelines on the efficient and transparent operation of virtual courtrooms, and it published a toolkit for courts to use to comply with them. In June 2020, the Commission to Reimagine the Future of New York’s Courts formed, and in April, it recommended technology “to improve the efficiency and quality of justice services during the ongoing health crisis and beyond,” according to the report.
Courts’ embrace of technology is likely to stick. This year, the Conference of Chief Justices and the Conference of State Court Administrators passed a resolution promoting the continued use of remote hearings, and a June nationwide survey of 240 magistrates, trial judges and appellate justices shows that a majority said they expect remote proceedings to become a permanent fixture of state courts.
Pew makes three main recommendations:
- Combine tech tools with process improvements, much like how Hawaii embedded into its online dispute-resolution (ODR) platform a fee-waiver application and review function so that people without lawyers can navigate only one platform.
- Test new tools with intended users and incorporate feedback, much like the way Utah courts used an external researcher to study the usability of its ODR platform for small-claims cases.
- Collect and analyze data to inform tech decisions – something only Texas currently does.
For this study, Pew looked at pandemic-related emergency orders issued by the supreme courts of all 50 states and Washington, D.C., and analyzed court approaches to virtual hearings, e-filing and digital notarization, with a focus on how these tools affected litigants in three of the most common types of civil cases: debt claims, evictions and child support.