In the 2019 series of student blog posts for Legal Problem Solving, students are digging into the American Bar Association's 2016 Report on the Future of Legal Services to explore how far we've come in 2019 and what remains to do in the innovation of legal services delivery.
Remember the first time you walked into a courtroom. The high walls, the austere wooden furniture, the imposing bench where the judge sits, the seal of the United States staring back at you. If you’re a lawyer or a law student, this moment probably imbued you with a sense of excitement or wonder. But for others, courtrooms are a reminder of a skewed justice system, one that neither serves nor advocates for them or people like them.
The American Bar Association’s “Report on the Future of Legal Services in the United States” identified the “complexity of the justice system” and the “public’s lack of understanding” as key factors that undermine trust in the judiciary.
These complexities manifest themselves in numerous ways: complicated filing procedures, lack of uniformity in court processes, obtuse language, etc. For a pro se litigant, especially one that might not have a robust educational background, these are more than just difficulties. They are obstacles that can totally foreclose access to the court system.
Small institutional changes could help facilitate a greater trust between the judiciary and the people it is supposed to serve. One federal judge places a welcome mat in her courtroom. But even steps as small as a judge taking a few extra minutes to explain her rulings, rather than just issuing perfunctory decisions without context, make a difference.
But more importantly, the courts must take a “customer first” or “user-friendly” approach to judicial processes. This starts with data collection—more information about how and why processes fail participants will facilitate better outcomes. But even without that data, however, we can make a few guesses about where we can do better.
Better information sharing at the outset of the process. Few trained lawyers have the competency to navigate the vernacular, processes, and requirements of a particular courtroom without some advance research. But lawyers have the toolkit to make sense of the labyrinthine proceedings that are unique to each courtroom. And even so, some trained lawyers fail to adequately grasp their obligations and end up making mistakes as well.
Pro se litigants, on the other hand, do not have three years of legal training to facilitate the beginning steps of seeking legal help. Many do not have any post-secondary education, either. As the ABA Report notes, “Most individuals would not attempt to play a sport, play a game, take an exam, or fill out an important application without knowing the rules and instructions.” So how can we expect unrepresented litigants to pursue help through the justice system, when the stakes are much higher than a mere sport?
A possible solution could be something as simple as a help desk, staffed by a person who is familiar the court’s procedures and documentation. The help desk could be manned whenever the court house is open and could act as triage for people who are seeking legal aid. The help desk could direct pro se litigants who need additional help to legal aid resources, assist in filling out and filing forms, etc. Most importantly, this would provide a human face to a deeply intimidating process that could encourage more people to seek remedies through the judicial system.
Streamlining forms. In some jurisdictions, the mere act of finding the correct forms to file is a Herculean task. While the way this would manifest is different from jurisdiction to jurisdiction, and issue to issue, and there is no one way to go about this, there should be a guiding principle—that forms should be simple and user-friendly.
Accommodation for litigant constraints. Court hours are not conducive to working people, especially working parents. Often pro se litigants are constrained by job responsibilities that do not permit the time off necessary to appear in court on a regular basis. Moreover, when child care becomes a factor, litigants become even more restricted in their ability to make court appearances.
Courts could solve this in a number of ways, but there are two obvious ones: First, the court could open up periodically during non-traditional hours to accommodate litigants with inflexible work schedules. Second, the court could invest in some kind of child care facility within the courthouse, where litigants could leave their children without the additional burden of having to find childcare.
Admittedly, both of these ideas would require resources. But weighed against the possibility that some people will be foreclosed from vindicating their rights because of personal constraints, the costs seem minimal.
Judges have an obligation to provide real justice to the communities they serve. When a significant portion of the population can’t understand or engage with the judicial process, then it is not working. By implementing some reasonable tweaks, courts have the capacity to work impactful change in the justice system.