IAALS’ Comment to the Michigan Supreme Court on Virtual Proceedings and Lessons Learned from the Pandemic
The comment below was submitted by IAALS to the Michigan Supreme Court and the Lessons Learned Committee in response to the state’s preliminary report, Michigan Trial Courts: Lessons Learned from the Pandemic of 2020-21, Preliminary Findings, Best Practices, and Recommendations. The report highlights the common experiences that shaped the Michigan justice system throughout the pandemic.
We write on behalf of IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, to offer public comment in response to the preliminary findings from Michigan Trial Courts: Lessons Learned from the Pandemic of 2020-21, Preliminary Findings, Best Practices, and Recommendations.
First and foremost, we applaud the Michigan court system for being agile and responsive during the COVID-19 pandemic. Even the most prepared courts have been challenged over the last year and a half, and we thank you for your ongoing commitment to serving the residents of Michigan.
IAALS, a nonpartisan, non-profit research organization, looks at ways to improve the legal system, specifically in the areas of civil justice, family justice, the judiciary, legal education, and the legal profession. IAALS has been monitoring court practices around the country as it relates to policies around virtual proceedings. As part of our Paths to Justice Summit Series, IAALS has held several virtual convenings with a diverse group of experts and stakeholders across the justice systems. From those convenings, IAALS published two issue papers, "Learning from this Nationwide Pilot Project—Reducing the Costs and Delays of Civil Litigation" and "Learning from this Nationwide Pilot Project—Ensuring Access to Justice in High-Volume Cases." Both papers focus on lessons learned, upcoming challenges, and areas for further research. In this spirit, we hope to provide a broad perspective on the importance of retaining some of the virtual proceeding processes put in place during the pandemic.
Prioritize user voices
We commend the Michigan judiciary for acknowledging that Michigan “cannot reflexively return to pre-pandemic procedures established prior to the Internet, e-mail, laptops, and videoconferencing, but must use this opportunity to adapt to technology, in the same manner as the marketplace, to create long-term improvements to access to justice.”(1) The Michigan judiciary’s adoption of Zoom technology before the onset of the pandemic demonstrates an innovative mindset. Michigan’s preliminary report also contains the voices of judicial officers, court staff, and diverse stakeholders.(2)
A key question raised in courts around the country is who decides who gets to appear remotely and who appears in person? While judicial discretion plays a role, as does the type of case and type of hearing, the public must have a voice as well. In this vein, we urge Michigan to keep user voices first and foremost when setting policy for remote proceedings moving forward. The justice system is designed to serve the public, so it is around the public that we must design future policies.
In March 2021, California Supreme Court Chief Justice Tani G. Cantil-Sakauye convened a Judicial Council of California Workgroup on Post-Pandemic Initiatives. On August 16, 2021, the Judicial Council Workgroup issued an Interim Report focused on remote access to courts, finding in part, that “remote technology increases equity and fairness in our court system by allowing court users more ways to access court services and participate in court proceedings.”(3) While the Council does not believe that all in-person court hearings should be replaced, the Council concluded that “[Californians] should have the freedom of choice to conduct their business remotely whenever appropriate.”(4) Arizona adopted the presumption that housing issues would be held in virtual proceedings unless the parties agree otherwise.(5) Doing so acknowledges the efficiencies created for litigants, attorneys, and courts while allowing appropriate off-ramps for those who prefer or need an in-person option. These state approaches encourage and empower litigants to participate in a manner that best meets litigants’ needs. We urge the Michigan judiciary to continue remote proceedings that serve the public.
Benefits of remote proceedings
Access to justice: The pandemic forced courts to think differently about where and how justice is delivered. Courts created opportunities to meet litigants’ needs when litigants could not physically access the court system. A crucial innovation—expanding the use of remote technology—addresses court access and highlights other important public policy concerns. The Supreme Court of Ohio’s Task Force on Improving Court Operations Using Remote Technology acknowledges that “[p]ublic access is a fundamental principle of the justice system. Courts must strive to remove barriers as they use technology in the delivery of court services.”(6) New York’s Commission to Reimagine the Future of New York Courts Future Trials Working Group also emphasizes that “great care must be taken to ensure that any efforts by the [New York State Unified Court System] to address emerging technologies account for the needs of all stakeholders, particularly those who have been historically underserved by the justice system.”(7)
Courts have recognized that appearing in a virtual hearing setting reduces the costs of participation at a physical courthouse. Self-represented litigants do not have to take time off work, travel to often difficult-to-access courthouses, or find childcare. In addition, some people may be more comfortable appearing by video, especially in certain case types such as restraining orders. Importantly, virtual proceedings can be beneficial for litigants with disabilities that make traveling to and from the courthouse (sometimes multiple times) very difficult.
Attorneys are also describing the benefit—in appropriate circumstances—of leveraging virtual proceedings.(8) Virtual appearances allow attorneys to represent clients in a way unimaginable before the pandemic—appearing in multiple jurisdictions in the same day or even hour. Virtual proceedings save clients money and allow attorneys to serve more clients. The California Interim Report acknowledges that “[r]emote proceedings allow[ed] pro bono attorneys and legal aid providers to serve more clients with greater efficiency, and increased transparency and access to court proceedings for the public and the media.”(9) Litigants and attorneys see benefits to virtual proceedings.
Increased participation rates: We have seen positive impacts on litigant participation rates as a result of remote court proceedings. The Michigan judiciary recognizes that participation rates have increased in virtual proceedings. State courts in Arizona,(10) California,(11) and Ohio(12) have seen increased participation rates in remote proceedings. The common theme of increased participation across states indicates that the Michigan judiciary has found innovative ways to engage its court users meaningfully and should continue to use creative ways to maintain participation rates.
Ensuring consistency across courtrooms: The Michigan judiciary should not lean solely on an individual judge or court preferences for in-person proceedings. Inconsistencies across courts, and especially among courtrooms within the same court, raise substantial access to justice issues. Suppose one litigant in a courthouse is able to access virtual proceedings as a presumption, but another in a courtroom down the hallway must appear in person for the same issue. In that case, the divergence in treatment is stark—and will not go unnoticed and may erode the public’s trust and confidence in individual judges or the broader court.
Respecting the public requires prioritizing service to the public over individual judge preferences to maintain consistent and predictable state court procedures. Creating uniformity across courts provide significant relief for individuals and the court system. IAALS has emphasized the importance of consistency within and across cases in our work on Redefining Case Management, noting that consistency and predictability are essential to implementing technology solutions that are user-centric, efficient, equitable, and effective.
Maintaining specific options and presumptions around virtual proceedings also acknowledges the reality that unrepresented litigants and attorneys are—like everyone else—still navigating complicated circumstances with COVID and their families. Even if courts are ready to return to “normal,” the country, individual states, and families still have different experiences in this pandemic. To ensure consistency across courtrooms, Michigan could adopt a presumption of virtual hearings unless parties decide they both would like matters to be held in person.
Conclusion
After many years of urging reform in these cases, we have witnessed incredible innovation and adaptability in the Michigan court system during a crisis. IAALS and other leaders in civil justice reform have urged many of these reforms—such as remote hearings—for years, and we have now seen these innovations happen on the ground. Michigan should capitalize on the unique opportunity to evaluate and learn from these changes to improve access to justice.
This “experiment” highlighted that court is not a building or specific place. It is a service. To ensure that we capitalize on this lesson from now on—and not just return to pre-pandemic court procedures out of tradition—courts, judges, and attorneys need to embrace this shift in mindset fully. While the transition from in-person to virtual has not been seamless, the closing of the physical courthouse doors did not shut off the courts from the Michigan residents needing justice. Michigan’s changes prove to the courts and the public that justice can be served without the need for in-person appearances in certain situations. The public will come to expect this option for interfacing with the courts, and they should. Don’t hesitate to get in touch with either of us if we can provide more information.
Endnotes:
1. MICH. STATE COURT ADMIN. OFFICE, LESSONS LEARNED COMM., MICHIGAN TRIAL COURTS: LESSONS LEARNED FROM THE PANDEMIC OF 2020-21, PRELIMINARY FINDINGS, BEST PRACTICES, AND RECOMMENDATIONS 19 (2021).
2. CONF. OF CHIEF JUSTICES & CONF. OF STATE CT. ADM’RS, RESOLUTION 2: IN SUPPORT OF THE GUIDING PRINCIPLES FOR POST-PANDEMIC COURT TECHNOLOGY (July 28, 2020) (urging courts to adopt technology that is “to meet the needs of all users—including the public, judges, court staff, attorneys, self-represented litigants, community partners, and researchers—and reduce barriers to access” and to review “business processes . . . from the perspective of court users.”).
3. JUDICIAL COUNCIL OF CAL., WORKGROUP ON POST-PANDEMIC INITIATIVES, INTERIM REPORT: REMOTE ACCESS TO COURTS (2021) [hereinafter CAL. INTERIM REPORT], https://newsroom.courts.ca.gov/sites/default/files/newsroom/2021-08/P3%20Workgroup%20Remote%20Access%20Interim%20Report%2008162021.pdf.
4. Id. at 2.
5. Order In the Matter of: Post-Moratoria Disposition of Residential Eviction Cases In Transition From Public Health Emergency Procedures, Ariz. No. 2021-120 (2021), https://www.azcourts.gov/Portals/22/admorder/Orders21/2021-120%20PDF.pdf?ver=2021-07-15-121233-560.
6. SUP. CT. OF OHIO, REPORT AND RECOMMENDATIONS OF THE TASK FORCE ON IMPROVING COURT OPERATIONS USING REMOTE TECHNOLOGY 19 (2021) [hereinafter OHIO REPORT VOL I], https://www.supremecourt.ohio.gov/Boards/iCourt/ReportVolumeI.pdf.
7. COMMISS’N TO REIMAGINE THE FUTURE OF NEW YORK’S COURTS, REPORT AND RECOMMENDATIONS OF THE FUTURE TRIALS WORKING GROUP 5 (2021), https://www.nycourts.gov/whatsnew/pdf/future-trials-working-grp-april2021.pdf.
8. OHIO REPORT VOL I, supra note 6, at 21.
9. CAL. INTERIM REPORT, supra note 3, at 2.
10. ARIZ. SUP. CT., COVID-19 CONTINUITY OF COURT OPERATIONS DURING PUBLIC HEALTH EMERGENCY WORKGROUP, POST-PANDEMIC RECOMMENDATIONS 3 (2021), https://www.azcourts.gov/Portals/216/Pandemic/2021/Post-PandemicRecommendations.pdf?ver=2021-06-08-192520-583.
11. CAL. INTERIM REPORT, supra note 3, at 6.
12. OHIO REPORT VOL I, supra note 6, at 22.