July 15, 2020 – As our community grapples with the impact of COVID-19, many people and organizations are examining the future through the pandemic lens.
This moment in time provides an opportunity to ask the question that every federal office, state agency, courthouse, county executive and mayor’s office should be asking: Why is our system of justice held together with the threads of 20th century technology and 19th century processes?
The barriers faced everyday by our citizens work to deny them not only access to justice, but also jobs, housing, and economic security.
Many states and counties across the country are taking advantage of this moment of change. Wisconsin should be joining that effort to make technology accessible and easy to use for citizens seeking relief or assistance.
The technology divide is growing in our cities while more and more courts, agencies, and other safety nets are requiring technological access and user savvy. The disparity has become more critical in light of the COVID-19 crisis. Recently the Pew Charitable Trust made a survey of internet use across the country.1 The results are jarring:
Roughly eight-in-ten whites (82 percent) report owning a desktop or laptop computer, compared with 58 percent of Blacks and 57 percent of Hispanics.
There are also substantial racial and ethnic differences in broadband adoption, with whites being more likely than either Blacks or Hispanics to report having a broadband connection at home.
Some 25 percent of Hispanics and 23 percent of Blacks are “smartphone only” internet users – meaning they lack traditional home broadband service but do own a smartphone. By comparison, 12 percent of whites fall into this category. Additionally, many people will run out of minutes on their phones so their phones will be shut off when folks can’t pay their bills.
For Black Americans in particular, libraries can play an important role: 42 percent of Black library users say they use libraries’ computers and internet connections compared with one-quarter of whites and 24 percent of Hispanics, according to 2016 Center data.
Our libraries are closed – closing access to the internet as well as to computers and printers. Our social service agencies are operating remotely. What can we do?
Almost everyone has, or can use, a phone. Many people have smartphones. Proceedings that require a personal computer may not be accessible to many self-represented litigants (SRL’s).
Courts must use technology that allows the option of voice-only participation and can be easily accessed via a toll-free telephone number without requiring a password.
This information should be clearly stated on each clerk of courts home page in understandable language, as well as on any notices that are sent to self-represented litigants. Furthermore, information for individuals with disabilities should be provided, with alternatives for those who don’t have the ability to see, hear, or manipulate a keyboard. The Texas Access to Justice Commission has created the Best Practices in Zoom Hearings Involving Self-Represented Litigants.
On a brighter note, a reported benefit of remote court proceedings has made it easier for some litigants to find attorneys in rural areas and has reduced the intimidation factor for some crime victims.
The fact that a person speaks English does not mean that they are conversant with vocabularies often used in court proceedings.
Conducting the proceedings remotely using technology can compound the unfamiliarity of some self-represented people with the words used by a judicial officer or opposing lawyer and results in putting the self-represented litigant at a disadvantage.
Judges must be mindful and patient with litigants who are already in unfamiliar territory as they seek to defend themselves or obtain relief.
Many of the state-adopted forms require notarization. Often, this requirement is met by a litigant traveling to a courthouse or a bank.
Neither of those options are available to many citizens. The purpose of having a document notarized is to verify that the individual is, indeed, who they say they are by requiring proof of identity. But does this really serve any purpose in verifying the facts contained in the document, such as in a petition for a fee waiver?
And the companies that provide online notary services all charge a fee of at least $25, which is out of reach for many litigants. Why not simply require a litigant to attest that the information provided is true and correct?
E-filing is only available to attorneys and litigants that can afford to pay the administrative fee. Many self-represented litigants don’t have an extra $20+ to register as an e-filer. They must find a computer, print out their legal documents, often obtain notarization of their document, make copies, send the copies to the court, and include a self-addressed, stamped envelope so the filings can be returned for service.
Although some counties have a drop box available for filing at the courthouse, traveling to the courthouse is a challenge for many, and all of the other steps must still be taken in order to file. Every single worker with a child support obligation, who has lost employment, must follow these steps to file a simple motion to change the child support order. Clearly, the process must be simplified. Having an easily navigated fee waiver form online that can be completed online in conjunction with an online filing could increase efficiencies for the court and provide equal access to self-represented litigants.
Online ADR Efforts
Many states and jurisdictions are experimenting with online alternative dispute resolution (ADR) programs, some of which are quite successful.
An excellent example is British Columbia’s Civil Resolution Tribunal. They use facilitated mediation and technology to resolve thousands of cases outside the court system. They handle condo disputes, small claims and motor vehicle accidents, all remotely. The National Center for State Courts has resources on the topic of ADR in American courts and the self-represented litigation network also has resources.
Free Legal Clinics and Navigators
The free legal clinics throughout the state are heavily used by self-represented litigants. Every courthouse should have one that offers information and assistance with forms. This can be done virtually and at a minimal cost.
In fact, many self-help centers across the country have been virtual for years. The Marquette Legal Clinic/Milwaukee Justice Center has implemented Zoom meetings where volunteer law students and lawyers meet with litigants who have civil legal problems. Litigants are sent a helpful instruction sheet prior to their meeting to minimize problems with technology.
Courts could work together with the state’s law schools and pro bono network to ensure that self-represented litigants across the state get much needed assistance.
Wisconsin’s Free Legal Answers is a resource that every court and clerk should be using. Litigants can post a question on the site and a volunteer lawyer will give an answer. Some other great examples of easy to access resources are:
These suggestions have been compiled from many programs and initiatives being implemented across the country. For more resources and ideas, go to the Self-Represented Litigation Network, the ABA’s resources on their Access to Justice page, or the National Center for State Courts.
1 Andrew Perrin & Erica Turner, Smartphones help blacks, Hispanics bridge some – but not all – digital gaps with whites (Aug. 20, 2019).