The National Summit on Innovation in Legal Services, hosted by the American Bar Association and Stanford Law School, kicks off tomorrow. The Summit “will challenge thought leaders both from within and beyond the legal profession to develop action plans to ensure access to justice for all.” The necessity for the Summit was recently made clear by the Department of Justice report on the problems in Ferguson’s municipal court, but Ferguson’s municipal court is far from alone in failing to provide justice in any sense of the word to many people. The Summit is also important now, because technology and innovations provide an opportunity to finally realize the ideals of a just legal system.
I was surprised when I received an invitation to the Summit. I’m far from a thought leader — it seems like having at least one thought follower is a prerequisite to being a thought leader. But I believe my invitation is encouraging, because I’m a front-line soldier in the fight for access to justice. I’m a legal aid lawyer who provides legal advice over the phone to eviction defendants. Every day, I speak to people who are threatened with homelessness, primarily because they cannot afford an attorney.
I’m writing out my thoughts here before the Summit for a couple reasons. First, I know ther are many voices and thinkers who cannot be in Palo Alto this weekend, and this story can be invitation for those people to share their ideas. Second, writing these ideas out for the public will clarify my thinking, expose weaknesses and allow me to gather influences in one place. Finally, getting my ideas out now will allow me to better hear the ideas of actual thought leaders at the Summit.
Trial Court Transparency
I strongly believe the most important factor in realizing actual access to justice is Trial Court Transparency. Being able to easily access court records, such as the complaint andeviction notice, improves the quality of the advice I can provide in a brief phone conversation far more than any other single thing. Trial Court Transparency is also an achievable goal. We don’t need legislative or cultural change in order to accomplish it. And Trial Court Transparency will provide a strong foundation to build more solutions for access to justice, such as improved online legal assistance and the ability to know what works and what doesn’t.
The focus on trial courts (and by trial courts, I mean the municipal courts that conduct eviction hearings, small claims courts, and other local courts) is desperately needed. Trial courts are the most common place where people interact with the law without an attorney. This isn’t an accident or unpredictable — cases in trial courts often don’t involve large sums of money and therefore don’t create enough financial incentives for private attorneys to get involved. The limited financial stakes do not mean that the cases are unimportant — eviction hearings determine whether a family loses their home, their schools, their community. Often, these cases are limited to trial courts as it can be difficult or impossible to appeal something like an eviction decision.
The inability to take these cases to the higher level of courts, such as state appellate courts, means these issues are stuck in a place that provides very little information about how justice is administered. Appellate courts, federal courts and the Supreme Court of the United States produce opinions that are dissected and analyzed by the media and scholars in law schools. Trial court decisions are more often captured in a checklist judgment than in the opinion, and even these are inaccessible in any of our online libraries of case law. Professor Stephen Yeazell describes the lack of information available in state courts. Trial Court Transparency is our only option to understand the courts that most affect our daily lives.
But what do I mean by Trial Court Transparency? Professor Lynn LoPucki defines court room transparency as “when all relevant aspects of its operation are revealed to policymakers, litigants, and the public in forms that they can readily comprehend.” My definition focuses more on the goals that I believe Trial Court Transparency must accomplish:
- Unrepresented parties (aka pro se parties), and the attorneys and organizations who assist them, can easily access court rules, similar decisions in the past, information about the case, and forms to assist with drafting required documents.
- Scholars, funders, advocates and others have access to information about the functioning of legal systems, with data deep enough to assess whether the substantive elements of the case are proven.
- The general public understands how trial courts work, and how their decisions affect and create policy outcomes that are critical to our lives.
These goals may sound like lofty, utopian ideals, but they are achievable by an organization like the American Bar Association willing to utilize technology and national leadership to ensure access to justice.
Steps to Trial Court Transparency
The vast number of trial courts in 50 different states makes it difficult to simply decree change. This is a feature, not a bug, of our legal system. This structural conservatism provides stability in our legal system. But coordinated national efforts by private organizations can change the trajectory of our legal system, as Lawrence Friedman shows in A History of American Law. What follows are my suggestions about how we can make these changes. I hope these ideas are starting points that more knowledgeable and experienced legal minds at the Summit can help flesh out.
Standard Protocols for Court Data
A national organization must lead a wide-spread effort to create standard protocols for the collection and dissemination of data created by our trial courts. Existing efforts often divorce the data from the underlying substantive law critical to the cases. We must create a standard way to capture not only the What, Who, and Where of court cases, but also the Why.
Such a goal would overwhelming if it was expected to be comprehensive, capturing all the different aspects of all the different types of litigation in all of our different trial courts. Instead, we must create standard protocols that are flexible and adaptable, which can grow over time and space. One organization cannot be responsible for collecting and compiling the information — Professor Yeazell describes the heroic efforts of the National Center for State Courts on this front, but it is likely a job that can only be accomplished by crowd-sourcing, under the guidance of a national organization.
In order to capture the Why a court decides a case the way it does, we must include legal elements in the data. Elements are what a plaintiff must prove to win a case, and are the fundamental building blocks of legal thinking. We study elements in law schools and for the bar exam. We use elements charts in preparation for trial at every level, from municipal court to the Supreme Court. The importance of elements must be reflected in court reporting for us to understand how the law actually works.
A legal system can only be just if the legal system is open — if we don’t know why a court makes decisions, we cannot know whether those decisions are fair. Private organizations like West Publishing have long provided this critical aspect of our legal system for higher courts. We can and should expect organizations independent form government to provide the same fuction for our most common courts. Creating these libraries should be viewed as an opportunity for organizations passionate about access to justice. We already have many of the laws to allow this to happen — the National Center of State Courts lists state rules that require courts to provide bulk data to private organizations who want to make the law accessible.
The internet offers opportunities to create a knowledge base of legal information in these libraries as well. Common law can be viewed as the predecessor of the crowd-sourced collections of knowledge that we have now, like Stack Exchange. Judges decide individual cases, and those decisions created a body of law that is useful beyond the original case, just like how somebody answers a specific question on Stack Exchange, and those answers create a library of how-to information available to many others with the same question. These knowledge bases can grow far beyond what an individual author could possibly create. We need libraries that harness this power for legal knowledge.
The “open” aspect of these libraries is absolutely vital. Carl Malamud testifies how open access to the law that governs us is a fundamental right. We cannot afford private control of access to laws when most people can’t afford to pay for that access. Open data encourages innovation, as it forces companies to continue to provide benefits through their services, rather than depending on network effects or government-enforced monopolies of intellectual property law.
In a world of disappearing privacy, court records provide a trove of sensitive information that can be exploited. In Toledo, where I work, a popular racket is to publish public arrest records in order to extort hundreds of dollars from people who want to have their mug shot removed from the company’s website and publications. We can look to the models of redefining licenses in other areas, such as Richard Stallman’s General Public License for free software and Creative Commons for licensing creative works. These models control future uses to ensure that the software or works stay free and open. We could license compilations of court data to ensure non-predatory uses of those compilations, while keeping the compilations open for all. We need the legal imagination described by Janelle Orsi of the Sustainable Economies Law Center to create libraries of legal information that work for us.
What Trial Court Transparency Can Create
Why should we worry about open standards and infrastructure for access to justice? The needs I describe may seem important to legal wonks, but how could they affect an average person’s life? Trial Court Transparency provides the foundation for a legal system that people can actually understand and use.
A Legal System Understood
The primary benefit of trial court transparency is simply understanding how our court system works. Our ability to collect and analyze so much more data is transforming many areas of life. It is time to bring these same advances in understanding to our legal system. Trial Court Transperency will allow law school scholars to analyze how the law works for most people, instead of focusing on the tiny percentage of cases that make it to our higher courts. Professor LoPucki writes persuasively about the needs for transparency in his article.
Studying data about our trial courts is necessary to understand if our efforts to provide access to justice are actually working. University of Chicago law Professor Omri Ben-Shahar raises concerns that our efforts to increase access may have unintended consequences. The only way to combat these unintended consequences is to measure our efforts and correct them based on the feedback. However, I feel compelled to warn about losing focus on important aspects of legal aid services because they aren’t easy to measure. I recently advised a client who, unlike the vast majority of the people I talk to, seemed unafraid to go into court by herself. She explained that she won a court case without an attorney eight years ago. The feeling of empowerment created by successfully negotiating the court system alone is not easy to measure, even if the empowerment lasts for years and years beyond the court date. Regardless of how hard it is to measure self-empowerment, it’s a very important thing to encourage, which brings me to…
Improving Pro Se Representation
Simply providing information about how the trial courts work will demystify our legal system for many people, and allow those people to navigate the system themselves. My standard practice for phone call advice is to start the conversation in an open-ended fashion, allowing the caller to explain the situation in their own words. It always surprises me how many of these people, without legal education and often without much education at all, understand exactly the critical part of their case. The only thing they don’t understand is the foreign language of lawyer-dominated courts. Simply making that language a little less foreign would be enough for those people to represent themselves and feel like they can participate in a legitimate system.
Trial Court Transparency can enhance pro se resources like A2J Author, explained here by Ron Staudt. Responsive pleadings like eviction answers can be trickier than other types of forms, because they are supposed to refer to the original pleadings. This can be difficult, especially when court-approved or even court-drafted landlord complaints do not comply with civil procedure rules. A sophisticated Trial Court Transparency system may be able to feed information about a case into a user interface like A2J Author.
In a place without a sophisticated system, form answers could help build Trial Court Transparency. A paper form answer could have separate pages for specific defenses (which makes the form answer less unwieldy, because there can be lots of possible defenses to an eviction.) This defense page could have a QR code to take a user to a website with a copy of the form and instructions. The QR code would serve a double purpose by making the scanned forms machine-readable, and allow a simple computer vision program to find when certain defenses are used.
On a side note, Professor Staudt mentions that the growth in A2J use has plateaued, and he thinks that may be because the potential creators of A2J Author interviews are limited. I can confirm this in my experience— I was limited in my use of A2J Author because I do not have a license to use Hot Docs. Open source software can eliminate these particular limitations.
Improving Legal Assistance
I also assist many people who will never be able to navigate the legal system by themselves. Many of my colleagues in the legal aid world get very nervous about promoting pro se assistance because they know it alone can’t help many people. Trial Court Transparency will promote both pro se advocacy and assistance by legal aid, pro bono attorneys, or the private bar.
I believe that whether somebody can represent themselves falls on a spectrum. There are some people who will never be able to represent themselves without assistance, because of functional illiteracy or because they are not English speakers. We must recognize that these people are entitled to interpreters provided by the court when they are brought into the legal system. There are also complicated issues that you can’t expect any non-lawyer to understand and argue for themselves (such as attempting to explain the intensely confusing world of income certification in subsidized housing to an eviction judge). Most people and most issues will fall somewhere in the middle. The more a legal aid attorney knows about the person’s case (which by itself can be a difficult thing for people to explain to the attorney), the easier it is to triage them to the appropriate level of assistance.
Trial Court Transparency will allow legal aid to help more people in an era of shrinking budgets, but it won’t just make life easier for legal aid lawyers like me. Trial Court Transparency will make it economically feasible for private lawyers to quickly understand a case and provide the needed limited services. Attorneys unfamiliar with particular courts will be more able to help if they can easily see how the court works, which will greatly expand the pool of potential attorneys. Private attorneys will be more willing to accpet pro bono cases if they are not walking into these cases blind. (As a side note, we also need to provide more clarity about the appropriateness of ghost-writing and other limited services.)
We now live in a world where advice on how to cook something, make something, fix something, is only a click away. But legal advice has been left behind and is one of the few areas where you can’t find much help from online tutorials and videos. This might be because people are nervous about providing legal advice online, but legal information videos are clearly not the unauthorized practice of law and they still don’t exist in large numbers. Some may claim that lawyers aren’t tech-savvy, but this claim is ridiculous, as it was lawyers who first utilized the power of spam and redefined our internet.
In my view, it’s clear that the problem is scalability. My video about how to make delicious cookies can be used and enjoyed by people around the world. The web creates worldwide audiences, but audiences for legal information are limited by jurisdictions. This is a difficult problem to overcome, but innovative solutions exist. We can create resources that can easily be adapted to different jurisdictions. The laws in different jurisdictions differ, but often not that much. For example, a public housing authority’s Admissions and Continued Occupancy Policy (ACOP) creates the rules that govern public housing residents. The rules are different for each public housing authority, but they are all based on the same model ACOP. An educational video could explain the general policy, and open source computer software could automate the inclusion of the specific differences for each jurisdiction. Sharing these resources could allow people to tailor legal educational materials for their own jurisdiction.
The most striking anachronism in our courtrooms concern evidence. Which evidence would be preferable — the memory of a witness about what he said, maybe 5 or 6 months ago, or a word-for-word transcript of the communication, time-stamped and explicitly stating each recipient of the communication? I find it hard to imagine anybody believing the memory would be more accurate, but witness testimony is far easier to introduce in court that the latter — text messages. Some people argue that texts can’t be used as evidence without the phone company being subpoenaed. In other words, unrepresented people can’t use text messages as evidence. That’s just one example of how our court systems prohibit the flood of information trusted in every other realm of our lives, in favor of much less reliable evidence.
Rules of evidence are often enforced arbitrarily in trial courts. This makes my life as an advice-giver difficult — do I advise somebody about the rules of the evidence and the law when they may or may not be enforced? We need to completely revamp the rules of evidence to reflect modern reality. However, it would be foolish to do it blindly. Data about how our trial courts work will provide better guidance than any guesses we can make.
Judicial notice could be much better utilized in an age when “sources whose accuracy cannot be reasonably questioned” are much more common. This type of limited judical investigation could easily prevent the most egregious miscarriages of justices, regardless whether the defendant is represented. Software that automatically checks county property records or the state corporate registry could prevent evictions by non-owners or unregistered corporations.
The Will of Mankind
Trial Court Transparency can make our court systems run much more smoothly, because parties would have access to the info they need and because we’d be able to see when a court isn’t working right. But the final goal of Trial Court Transparency is to create the future of our legal system by allowing us realize the ideals of the past. Justice Clarence Thomas speaks passionately about the power of the ideals that formed our government. Even if Thomas Jefferson’s words in the Declaration of Independence weren’t true at the time, the fundamental truth of the sentiment has pushed us closer and closer to equality over the lifetime of our country.
The ideal of the law is best encapsulated in words engraved onto the Department of Justice — The Common Law is the Will of Mankind, Issuing from the Life of the People, Framed through Mutual Confidence, Sanctioned by the Light of Reason.
To me, these words describe the beauty of the law, and the best way to govern ourselves that I can conceive. Legislation or common law principles are abstract statements about what we value, and in many ways, they can’t be more than that. Attempting to draft legislation that is explicit about every possible situation is either impossible or creates an unwieldy and unusable body of law. Instead, the law issues from the life of the people because the law is fine-tuned and made explicit only in response to actual controversies. Through stare decisis, precedent creates a more and more clear example of exactly how the law works along a wide range of situations. If each case is sanctioned by the light of reason by faithful judges, then a body of law develops that is more fair and more clear than any possible decrees from a single person or body. (Similar to the knowledge-bases like Wikipedia we discussed above.)
However, in the trial courts that most affect people’s lives, this ideal is completely broken. There is no mechanism for stare decisis when there is no record of what the court decides before. In practice, we can’t even know if the court is following the binding precedent of higher courts if we don’t know what the court is doing. (And many legal aid lawyers can verify that precedents and legislation are often not being followed.) The law in trial courts is often arbitrary in the absence of attorneys. Because this is the law that most people experience, it is easy to understand why people believe our whole system of government is unfair and illegitimate.
We now have the opportunity to make the ideals of the past a reality in the future. But a law issuing from the life of the people must be understandable to the people. A law framed through mutual confidence must decide cases on the facts and the law, not on whether one party is represented and the other isn’t. If we adopt the technologies that are revolutionizing other fields through a deeper understanding of a transparent system, then we can finally make law the will of mankind.