Regent University School of Law Dean Mark Martin, former Chief Justice of the Supreme Court of North Carolina, recently served as a Thomson Reuters expert panelist, addressing the timely topic of Digital Courts: Access to Justice in Today’s World. Martin was joined by the Honorable Mary McQueen, president of the National Center for State Courts (NCSC). This webinar, which is part of the Government Influencer Series, was moderated by Gina Jurva, Thomson Reuters attorney/manager of Market Insights & Thought Leadership.
“COVID-19 has affected every area of our lives, and the court system was no exception,” Martin explained. “Judges, court staff, and attorneys had to adapt quickly to court closures and new health mandates while still providing litigants access to justice, and they did it extremely well.”
The webinar centered on these three topics:
- Benefits and challenges presented by online proceedings.
- The current case backlog as a process issue and a public health issue.
- Envisioning and managing the courtroom of the future
Martin and McQueen concurred that any previous question as to whether “the courts” are a service or a place has been answered through the pandemic. “Courts didn’t close even though courthouses did,” McQueen said, paraphrasing insights from Chief Judge of New York Janet DiFiore. In a survey of 238 judges, administrators, court staff, and attorneys throughout state and local courts, 93% reported that they were involved in remote proceedings throughout 2020, and 89% are still involved in virtual hearings.
Thanks to the work of the NCSC rapid response team and collective state and local commitment to justice, the courts rapidly pivoted to issues of safety, emergency priorities, and access to justice in these specific ways:
- Restricting or ending jury trials.
- Generally suspending in-person proceedings.
- Securing a system to present online arguments.
- Providing paperless and paper-on-demand systems.
- Restricting entry into courthouses.
- Safely rotating staff throughout the court.
- Granting extensions for court deadlines.
- Encouraging or requiring teleconferences and videoconferences in lieu of hearings.
These efforts reduced failure to appear by over 80%, reduced the number of continuances, and increased transparency, McQueen said. New protocols also expanded access to litigants through language translation features embedded into the virtual platforms. Other benefits across all age groups included direct access to clerk offices for forms, more efficiency of time, reduced mobility and travel concerns, and case-flow management improvements.
Martin said he believes virtual proceedings are likely here to stay because of benefits related to economics, scalability, and public safety. He is specifically encouraged that these “forced innovations” are lessening the burden on witnesses and litigants, especially those with disabilities, childcare concerns, or safety concerns related to domestic violence cases.
“On any given day about 1% of the U.S. public is accessing a county courthouse,” Martin said. “We want people to appreciate the seriousness and solemnity of court proceedings but to experience a less intimidating, more accessible environment whenever possible and appropriate. We have to strike that balance.”
Martin and McQueen shared that challenges yet to be addressed to optimize the new court system include developing a unified platform among all states, ensuring a more sophisticated and secure system for document management, considering the addition of a “technology bailiff” to help streamline the online process, and coordinating a technology hardware loaner program with local libraries and community colleges. The panelists also indicated that broadband access is still a nationwide challenge.
“A chief obstacle has been a digital divide, and we’ve also had an access divide,” Martin said. “We continually ask ourselves, ‘How do we create a level playing field—or at least a playing field where everybody can participate in a similar way?’” He encourages court systems to collaborate with the executive branch and even the legislative branch in their respective jurisdiction to secure funding for infrastructure upgrades.
Martin continued by highlighting three aspects necessary to confirm that a virtual process is appropriate for the proceeding.
- Can we ensure that legal and constitutional rights are protected?
- Can effective lawyering in the tradition of our adversarial process be maintained?
- Can ethical best practices and security protocols be observed?
In relationship to court backlog, NCSC has instituted the Civil Justice Initiative. The center is also analyzing potential surges of cases and working toward a hybrid approach to handle trials more speedily through expansion of multiple hearing options and quasi-judicial officers.
Martin believes that virtual proceedings could become a “highly effective tool to help alleviate many court backlogs.” He adds, “We have an amazing opportunity. We weren’t necessarily looking to confront these issues, but here we are. COVID required it, and we’re getting better and better at virtual proceedings. Now we have this highly effective tool, digital courts, so let’s continue to optimize these platforms.”
Learn about the Regent University School of Law at regent.edu/law.