How the Judiciary Has Driven Systemic Innovation During the Pandemic

ABSTRACT

In 1998, the Conference of State Court Administrators (COSCA)8 urged member state courts throughout the United States to join a national effort to exchange data and integrate information systems in ways that would improve case management.9 COSCA issued a position paper on information sharing in 2002,10 followed by joint resolutions adopted by the Conference of Chief Justices (CCJ)11 and COSCA that called for public access to electronic court records and removal of Social Security numbers from court records.12 In 2004, COSCA joined with the National Association for Court Management (NACM)13 to issue a policy statement for court acceptance of information technology.14 It established a "nine part agenda" that emphasized serving the court's business needs, stressed the importance of effective implementation, and addressed security and privacy issues.15 A series of incremental resolutions followed over several years, including one from the CCJ entitled "The Emergence of E-Everything. The Landscape of Civil Litigation determined that nonfamily civil litigation in state courts "takes too long and costs too much," which undermined access to justice.18 Court dockets were dominated by "lowervalue contract and small claims" cases that rarely were adjudicated on the merits.19 Courts were using outdated automated case management systems, and they were giving self-represented parties (involved in 76% of cases) and lawyers too much control over the pace of litigation.20 The Landscape of Civil Litigation lamented the decline in funding for court systems and observed that courts were expected to dispense more justice using fewer resources.21 B.The Call to Action in Civil Cases One year later, the NCSC published its influential Call to Action Achieving Civil Justice for All22 That report built upon the Landscape of Civil Litigation and criticized the "cost, delay, and unpredictability of civil litigation" under existing court processes.23 It recommended that courts update differentiated case management processes to assign cases to three "pathways," which it designated as "Streamlined," "Complex," and "General. "31 States should design courthouses that incorporate emerging changes in technology.32 Six months before the CCJ and COSCA endorsed the Call to Action, the American Bar Association (ABA) House of Delegates approved the ABA Model Regulatory Objectives for the Provision of Legal Services (Model Regulatory Objectives).33 The Model Regulatory Objectives were drafted by the ABA's Commission on the Future of Legal Services not long before it released its innovative and controversial 2016 Report on the Future of Legal Services in the United States 24 The Model Regulatory Objectives provided guidelines for state courts to regulate nontraditional legal services providers, and discouraged blanket exclusions of nonlawyers based on unauthorized practice of law rules.35 The CCJ agreed, and resolved that state courts should consider broadening their regulatory frameworks to nonlawyers who provide legal services.36 Expanding the regulatory framework would give courts greater flexibility to implement the Call to Action21 In 2011, the NCSC advised state courts on how to automate court processes so that information technology could help assign cases to one of the three pathways.38 Pathway assignments should be data-driven and involve less human discretion. The NCSC joined in partnership with the Institute for the Advancement of the American Legal System (IAALS)41 and the National Council of Juvenile and Family Court Judges (NCJFCJ)42 to launch the Family Justice Initiative (FJI).43 The FJI would operate in collaboration with the CCJ and COSCA to build upon the research contained in the Landscape of Civil Litigation and the policy directives in the Call to Action 44 While the FJI was ramping up its operations, the NCSC issued a 2017 white paper that examined existing case management systems in family courts throughout the United States, titled Triage Protocols for Divorce and Child Custody Cases.45 The white paper noted "tension between what should ideally be done, what courts can afford to do, and what litigants want," and that courts may need to "identify[] 'good enough' solutions" that are more feasible due to resource limitations.46 "As long as budget constraints exist, a court that provides more services to one case is essentially reducing services in another case, so some sense of cost/benefit is definitely helpful in making these kinds of service and process tradeoffs. .