Pandemic “Pilot Projects” and the Next Steps for Court Innovation
Pilot projects have long been used when implementing reforms—they provide a smaller-scale testing ground to administer the changes, they create an opportunity to gain broader support for innovation, and they allow for evaluation and improvement prior to broader adoption. Throughout the past year, our courts, in many ways, have been engaged in informal pilot projects; they’ve tried out different technologies and processes, all in an effort to continue the administration of justice amid the COVID-19 pandemic.
Now, with nationwide vaccination in progress and an end to the pandemic in sight, we have the opportunity to learn from this extraordinary experience and chart a path forward, taking what we’ve learned from this trial period and implementing the best of these changes long term.
Guidance from the CCJ/COSCA Rapid Response Team
When the pandemic took hold last March, courts had to figure out how to ensure continuity of operations while balancing public health and safety. To do this, they restricted or ended jury trials, generally suspended in-person proceedings, and encouraged or required tele- and videoconferences in lieu of in-person hearings. That same month, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) established a Rapid Response Team (RRT) to provide guidance to state courts through this national emergency.
The RRT created a series of working groups, tasked with studying court management, technology, and communication. Since inception, these working groups have provided hundreds of webinars, Tiny Chats, bench guides, checklists, guidance documents, and other resources to help courts deal with challenges presented by the pandemic.
The RRT Civil Working Group’s guidance builds on—and often refers back to—the Civil Justice Initiative recommendations first issued in 2016. At the core of these recommendations is “the premise that the courts ultimately must be responsible for ensuring access to civil justice.” Throughout the pandemic, courts have remained committed to this responsibility and have utilized a slate of technologies and processes by which to do so.
Embracing Remote Hearings
The aforementioned Call to Action report highlights the need for courts to take steps “to increase convenience to litigants by simplifying the court-litigant interface and creating on-demand court assistance services,” including promoting the use of remote audio and video services for case hearings and case management meetings. Although courts were slow to adopt this recommendation prior to last March, once courthouses closed to the public, they quickly pivoted to videoconferencing platforms to conduct routine hearings.
To provide guidance during (and after) this critical time, the RRT issued the Remote Hearings and Access to Justice Guide, which covers a number of different considerations for courts, including:
- Deciding which proceedings to conduct remotely
- Selecting and implementing technology
- Adopting procedures and practices consistent with open and equal access
- Providing information and training to court personal and users
- Guidelines for conducting remote proceedings
Another guide, Conducting Fair and Just Remote Hearings: A Bench Guide for Judges, highlights key recommendations to ensure procedural fairness during remote hearings, covering pre-hearing preparation, fair and effective use of videoconferencing platforms, judges’ conduct during hearings and more. Virtual Courtroom Standards and Guidelines similarly highlights standards, guidance, and best practices for virtual hearings, attorney-client communications, public and press access, making a clear record, exhibits, and providing virtual meeting information to the parties.
Addressing High-Volume Cases
In 2015, the National Center for State Courts (NCSC) conducted a study to document the characteristics and outcomes of cases in state courts. This study revealed that state court caseloads are dominated by lower-value contract and small claims cases, rather than high-value commercial and tort cases. In addition, the study highlighted the high number of self-represented litigants in state courts—76 percent of cases have at least one party that’s self-represented. The recommendations for reform took into account the nature of the state court docket and included tailored recommendations for ensuring justice for litigants in high-volume cases.
While caseloads have been down in 2020, many expect a surge in cases in the coming year as a result of the pandemic, including high-volume cases such as consumer debt, eviction, and foreclosure cases. Now is the time to implement the CJI recommendations for these cases and, in instances where they’ve already been adopted in the past year, assess what has worked well over the course of the pandemic.
Considerations for High-Volume Dockets During the Pandemic lays out best practices, including calendaring cases in smaller batches and holding informal proceedings prior to hearings conducted by court navigators or mediators. And, IAALS’ own Pandemic Positives: Extending the Reach of Court and Legal Services showcases the innovative ways courts, self-help centers, legal aid centers, and law/public libraries quickly developed new processes for providing both in-person and virtual services, ensuring access to information and assistance to those who cannot afford an attorney.
In addition, consumer debt cases are expected to be on the rise, as many have suffered from unemployment and financial hardships as a result of the pandemic. IAALS and the NCSC have published recommendations for consumer debt reform, including key suggestions for rule changes, in Preventing Whack-a-Mole Management of Consumer Debt Cases. Recognizing that significant rule reform can be challenging during a national emergency, IAALS and the NCSC also developed Key Steps and Tools to Implement Now to Ensure the Fair and Efficient Handling of Consumer Debt Actions, providing guidance for courts that can be adopted immediately. Recommendations include triaging via a specific streamlined pathway or process for consumer debt cases, addressing the unique challenges in these cases such as issues with service, and providing increased information to litigants.
Tackling the Backlog
In addition to the expected litigation surge, courts are also facing a backlog of cases from the past year, given that the number of cases disposed over the pandemic has been less than filings. This, plus the expected increase in certain types of cases, adds up to a significant backlog for our state and federal courts. Now, more than ever, courts need to implement case management approaches to increase efficiency while also ensuring a fair and just process for all—goals at the heart of the CJI recommendations.
Twelve Essential Steps to Tackle Backlog and Prepare for a Surge in New Civil Cases contains this critical guidance, but through a pandemic lens. The report lays out how to triage existing and new cases, recognizing the importance of early and active case management, creation and communication of key deadlines, and timely judicial attention.
As we emerge from the pandemic, courts need to refrain from the urge to shift back to what used to be “normal.” So much innovation has happened in our justice system over the past year, and it is time to take advantage of these informal pilot projects and treat them as such.
What is unique about this experience is the number of “pilot projects” around the country and around the world—courts have tested out innovations at a scale never seen before in our justice system. Rather than just looking internally at the innovations that have been implemented, courts have an opportunity in this moment of disruption to also look at the experimentation and lessons learned by others. This is the moment to assess, further innovate, and turn a moment of crisis response into lasting reforms for the improvement of our legal system.