Recommendation 6: Simplification and InnovationBack to table of contents
Recommendation 6. Expand efforts to make legal systems easier to understand and use through the simplification of language, forms, and procedures, and the wider use of technology.
The current court systems in the United States were created by lawyers for lawyers, based on the mistaken assumption that everyone who appears in court will be represented by a lawyer. In a 2015 study of ten urban areas, the National Center for State Courts reported that at least one party in 76 percent of all civil matters had no lawyer and thus represented themselves. That is, in three out of every four cases, not just those involving poor and low-income people, a litigant had no lawyer while in court. The odds of success in such cases decline as a result.61
A major reason for the low rate of success among self-represented litigants is the complexity of the legal process. Over time, the systems that lawyers created, for themselves, have become too complicated for many people to navigate on their own. Simplification is therefore an essential need of American civil justice. But this is not just a matter of tweaking, streamlining, or automating existing forms and procedures. Simplification should proceed on the assumption that most people pursuing matters in court are not lawyers and do not have lawyers representing them, and it should follow the Conference of Chief Justices’ recommendations for court organization. In addition, it should include the translation into plainer language of the way the law is described and enforced and a substantial revision of forms, procedures, and other barriers to entry to courts and other tribunals.62
Innovations in technology have already led to some needed simplification. For example, digital information kiosks and online dispute resolution have proven to be valuable tools for the provision of civil justice services. The former lets potential litigants access information more easily. The latter allows parties to resolve part or all of their disputes online, at a time and from a place that is comfortable for them. Dozens more innovations of this kind are in development or already in use, including advice portals, chatbots, and web-based legal resources stationed in public libraries, all designed with the needs and expectations of users in mind.63
Legal tech is a booming field and an important opportunity for entrepreneurs. This market for technical innovation is driven by corporations and corporate law firms with resources, not by low-income individuals or the courts and agencies responsible for their issues. Fortunately, academic and nonprofit institutions have shown the power technological innovation can have when designed even for those without resources. For almost a decade, Georgetown Law School’s Technology, Innovation, and Law Practice course has paired law students with nonprofit organizations to make apps designed to help users navigate the justice system, find legal resources, and apply for legal aid. In April 2020, the school held its first Iron Tech Lawyer Invitational for student teams from law schools and engineering and business programs. It was a showcase for legal tech and data analysis tools created to help improve access to civil justice. The winner was the University of Hong Kong, which had worked with the city’s Neighborhood and Worker’s Service Center. The winning app uses data from Hong Kong’s judiciary and large-scale nonprofit organizations to analyze likely outcomes in employment cases in which employees seek compensation for injuries.
As the United States and other nations develop these tools, organizations providing access to civil justice must reckon with and address a substantial digital divide between the poor and the well-off. In 2019, almost 20 percent of people whose income was $30,000 or less said they never used the Internet, compared to about 2 percent of those whose income was more than $75,000.64 In 2018, only half the people who made $30,000 or less had Internet access at home.65 Also in 2018, about one in four people in rural areas, where people tend to be poorer than other Americans, said that getting access to the Internet was a major problem; in urban areas the rate was about one in seven, and in the suburbs it was one in 11.66
Even as the country slowly overcomes these barriers, the potential remains for wider, more effective use of technology to increase access to civil justice. Technology also presents a new and important opportunity to collect, share, and analyze data about the workings of the courts and other aspects of civil justice. Due to the decentralized character of American civil law, such data have been difficult to gather, whether at the federal, state, or local levels. But digital innovations, with built-in evaluation features, can help invigorate critical aspects of data collection—to examine and understand the ecology of civil justice institutions and organizations, to analyze the obstacles or aids to access, and to find new ways for the disparate actors (courts and judges, lawyers and advocates, litigants) to work together more effectively.
The goal of every innovation in civil justice, including data collection, should be to improve the access and user experience of everyday litigants, regardless of whether they consult lawyers. While expert assistance is crucial in many legal matters, ordinary people should be able to understand their options, follow standard procedures, track their own interests, and exercise basic rights with confidence that the law can work for them.
- 61Paula Hannaford-Agor, Scott Graves, and Shelley Spacek Miller, The Landscape of Civil Litigation in State Courts (Williamsburg, Va.: National Center for State Courts, 2015).
- 62Conference of Chief Justices, “Resolution 3: Expanding Meaningful Access to Justice for All” (adopted as proposed by the CCJ/COSCA Access, Fairness and Public Trust Committee at the 2018 Midyear Meeting on January 31, 2018).
- 63See Arizona Supreme Court, Task Force on the Delivery of Legal Services (Phoenix: Arizona Supreme Court, October 2019). On user-centered design approaches to law, see Margaret Hagen, Law by Design [online book, n.d.]; and Rose D. Ors, “Curious Minds: A Conversation with Rocheal Adranly, Partner and General Counsel at IDEO,” Thomson Reuters, September 24, 2019. See, generally, ABA Commission on the Future of Legal Services, Report on the Future of Legal Services in the United States.
- 64Monica Anderson, Andrew Perrin, Jingjing Jiang, and Madhumitha Kumar, “10% of Americans Don’t Use the Internet: Who Are They?” Pew Research Center, FactTank, April 22, 2019.
- 65Tanina Rostain, “Techno-Optimism & Access to the Legal System,” Dædalus 148 (1) (Winter 2019): 93–97.
- 66Monica Anderson, “About a Quarter of Rural Americans Say Access to High-Speed Internet Is a Major Problem,” Pew Research Center, FactTank, September 10, 2018.
The Crucial Role of Communication in Family Court Cases: Interpreters in State Courts
For the past decade, a growing number of states have concentrated on addressing the challenge of providing foreign-language interpreters in court proceedings for people with limited proficiency in English. From 1990 to 2013, this population in the United States grew from 14 million to 25.1 million, or from 5.6 percent to 7.9 percent of the total population.67 In 2013, people in the United States used at least 350 languages, including 150 Native North American languages spoken by more than 350,000 people.68
In 2010, the Justice Department told chief justices and administrators that state courts receiving federal financial support must provide language interpreting services to anyone with a court proceeding and limited English proficiency. The policy reflected holdings in some state and federal courts.69
The California court system directed that every state court should provide free language interpreting for litigants who do not speak English. It created a set of priorities that determines what kinds of cases should get interpreters first when there are not enough resources to provide them in all cases. At the top of the list are domestic violence, elder abuse, and civil harassment cases. Most of the priorities involve family matters, like termination of parental rights, conservatorships and guardianships, and similar life-altering interests.
California’s example is significant because the state has the largest court system in the United States, resolving about 4.8 million matters a year in its trial courts. Since 1950, the state’s population has almost quadrupled, to close to 40 million people, and has become far more diverse. No ethnic group makes up a majority in the state, and citizens speak more than 250 languages and dialects. About 40 percent of Californians speak a language other than English at home. And 7 million people, or 17.7 percent of the state’s population, have limited English proficiency.
The Judicial Council of California reported in 2015 that Spanish-English translation accounted for 72 percent of all interpreting in the courts.70 But Californians with state court cases also spoke Cantonese (the dialect of Chinese in Hong Kong and southern China) and Tagalog (spoken in the Philippines). Some parts of the state saw a concentrated need for interpreters in Arabic, Armenian, and Punjabi (spoken mainly in India and Pakistan). Throughout the state, a dozen other languages, ranging from Farsi to Vietnamese, were needed often enough to be included in the list of languages requiring regular interpreting.
In 2015, just nine of the state’s 58 trial courts provided interpreters in cases considered critical, including disputes about domestic violence, child custody, elder abuse, and evictions. Parents in family court, for example, sometimes had to rely on their children to translate for them, and tenants in eviction hearings sometimes had to rely on the landlord who was the opposing party. By 2019, 51 trial courts provided the service in all priority areas, including conservatorship, parental rights, and other civil areas.
Other states have also continued to strengthen the interpreting services they provide in courts. Texas set up a remote interpreter service in 2014 and has translated court documents into the most requested languages (Spanish, Portuguese, Haitian, Khmer, and Vietnamese).71 New Mexicans who visit the state courts’ website may encounter a multilingual avatar named Clara, who provides legal forms and basic information in Navajo, Spanish, and English.72
In Nebraska, the Midwestern state with the fastest-growing population of non-English speakers, the Nebraska Supreme Court partnered with Northeast Community College to train and certify interpreters for free as part of the Adult Education Department.73 At a meeting about the program in 2019, Julie Clark, the college’s coordinator of adult education, said that the program “channels the wonderful intellectual skill of knowing multiple languages with a meaningful economic outcome, while also serving the needs of the many individuals who are finding their way through the justice system.”74
- 67Jie Zong and Jeanne Batalova, “The Limited
English Proficient Population in the United States,” Migration Information Source, July 8, 2015.
- 68U.S. Census Bureau, “Census Bureau Reports at Least 350 Languages Spoken in U.S. Homes,” press release no. CB15-185, November 3, 2015.
- 69National Center for State Courts, Called to Action: 5 Years of Improving Language Access in the State Courts 2012–2017 (Williamsburg, Va.: National Center for State Courts, August 2017), 5–10.
- 70Judicial Council of California, “Fact Sheet: Court Interpreters Program,” April 2017.
- 71National Center for State Courts, Called to Action, 32–35.
- 72New Mexico Judiciary Administrative Office of the Courts, New Mexico Center for Language Access, Language Access Services Annual Report, no. 5 (2019).
- 73Allison Mollenkamp, “Nebraska Program Trains Court Interpreters to Help Non-English Speakers Testify,” All Things Considered, November 7, 2019.
- 74“Court Interpreters to Begin Training through Northeast,” press release, September 23, 2019, Northeast Community College.
Using Technology to Help Veterans Help Themselves: StatesideLegal.org
In 2009, Pine Tree Legal Assistance created a website to help veterans in Maine. The website was built with help from the Arkansas Legal Services Partnership and a team of advisors that included the Judge Advocate General Corps, military legal assistance lawyers, private lawyers, and veterans. The site was launched at the White House as StatesideLegal (https://statesidelegal.org/) in 2010. It now serves veterans, service members, and their families around the country.
StatesideLegal provides information and resources for people with military experience and their families who want to claim employment, military, or Social Security benefits; need assistance in housing in disputes that threaten eviction or foreclosure; and aid in contests over child support and custody, guardianship, and divorce.
Often, veterans (like others in need) do not know that their problems have legal components, so the main challenge of StatesideLegal is reaching potential beneficiaries who may not visit the site on their own. Nevertheless, the website is a measurable success. It is now national in scope, with information and resources for people throughout the country. In 2019, it had 490,000 unique visitors and 1.15 million page views.
Pine Tree Legal Assistance was founded in 1966. Until a decade ago, the organization did not ask existing or prospective clients about their status as veterans or active service members. It began asking only when it realized that a notable share of its clients with debt problems were veterans.
Initially, Pine Tree thought the problem was limited to home foreclosures, because many veterans could not pay their mortgages. It soon realized that the problem was debt in general, especially consumer debt. Predatory businesses like car dealerships, often located on roads leading to military bases, take advantage of the young people in the military, who may lack financial savvy and take on loans they cannot afford. Debt is a special problem for active service members because it affects their ability to be promoted. Pine Tree learned about the relevant federal statutes intended to protect service members from unfair lending practices and trained staff to provide specific counsel to service members and veterans. With StatesideLegal, Pine Tree is helping empower veterans, service members, and their families to advocate for themselves—or, if they wish, to ask Pine Tree or another legal services organization for assistance.