Essential QuestionsBack to table of contents
I. Is justice open to all?
A. Who is able to access the courts?
In a fair and accessible justice system, people with justice problems are able to turn to the courts for help. To know whether this is the case in the United States and who is and is not able to access the courts, four kinds of information are required:
- the different kinds of civil justice problems experienced by Americans and their prevalence across the population;
- information about people experiencing these problems, such as their age, gender, income, English language facility, and race/ethnicity;
- the numbers of cases of different types filed in America’s courts; and
- information about the characteristics of the litigants in those cases, such as whether they are people or organizations and, if they are people, their age, gender, income, English language facility, disability status, and race/ethnicity.
What is and is not already being collected?
Currently, more data exist about court cases and litigants than about justice problems occurring outside the justice system.
As a matter of standard operating procedure, courts compile case files for matters that come before them. These files contain basic information about cases and the litigants who are parties to them, including such details as the party’s name and usually address; dates and results of hearings; and motions, pleadings, and other documents filed by parties to each case. In many instances, this information is a matter of public record.
Nevertheless, with rare exceptions, courts do not typically collect information about the race/ethnicity, gender, language facility, age, ability, or income of parties. Since the discovery of bias or disparity in civil justice would require some knowledge of these basic facts about litigants, assessment of whether courts are open to all is not currently possible.
But most of the civil justice problems experienced by Americans never become court cases and would not show up in court data even if the courts collected more information on individual cases. Some justice problems are processed by administrative authorities (e.g., benefits offices), and these authorities often record information about the cases they process. For example, U.S. Department of Veterans Affairs (VA) offices know the number of benefits applications they receive, as well as information about those they deny and those they approve, including some demographic information about the veterans petitioning for benefits. But many civil justice problems cannot be assessed by any arm of government or by any other institution that might collect pertinent information. For example, veterans may not be aware that they are eligible for benefits and so never apply. Or tenants may be informally evicted from their apartments without landlords ever filing eviction lawsuits.
To describe justice issues handled outside the justice system, the information collected by courts and other government agencies must be supplemented by information from other sources. In many other countries, including England and Wales, Colombia, and South Africa, pertinent data about civil justice are collected by central statistical authorities. In the United States, however, central statistical authorities like the U.S. Bureau of the Census and the Bureau of Justice Statistics have, to date, never collected data about the kinds of civil justice problems that people, small businesses, or larger organizations experience, or about the characteristics of the people and organizations that experience those problems. Nor do courts, legal services providers, policymakers, scholars, or other interested parties have straightforward access to synthesized data sets connecting different sources of information, such as court and government agency data, about people facing justice issues.
B. Who is able to get help with their civil justice problems?
In a fair and accessible justice system, people with justice problems who want to pursue a legal remedy but cannot pursue it on their own would be able to follow procedures designed for their use and would have access to the help they need to navigate those procedures. Some people simply need information. Others need more intensive assistance, which might involve legal advice or representation. Still others require services that make information or assistance usable; for example, reasonable accommodations or interpretation and translation services. Three basic kinds of information are needed to determine whether people are getting the help they need:
- information about who is experiencing justice problems and whether these problems involve courts;
- information about what kinds of help they currently receive; and
- information about whether that help is adequate to their needs.
What is and is not already being collected?
When people seek help for justice problems, whether from legal services providers, community nonprofits, or others, these service providers usually collect some information about who the people are and which problems they face. Sometimes, these organizations also collect information about people who seek assistance but are turned away. These practices are followed by legal services providers like civil legal aid organizations, court-based self-help centers, law school clinics, and private practice lawyers. They are also followed by benefits agencies and social services organizations like offices of the VA and the Social Security Administration, as well as by community nonprofits that assist specific demographic groups, such as the elderly, and organizations such as tenants’ unions that assist people with specific kinds of problems (e.g., eviction and rental housing conditions). Sometimes these organizations record information about which services are provided; sometimes they do not. Sometimes they collect information about the effectiveness of the aid that was provided; sometimes they do not. Some organizations collect information about the characteristics of those who seek or receive help, such as their race/ethnicity, gender, language facility, age, or income; others do not.
At present, no set of standards exists that provides guidance about what information should be collected consistently across different sectors—for example, in legal services, in human services, in benefits offices, and in courts. Developing such standards is an important step in collecting reliable, consistent, and useful information.
In some situations, assessing the help people receive is straightforward. In others, assessment requires follow-up to determine whether the assistance received was sufficient. For example, if a person seeking help states that she cannot read English, it is relatively simple to record whether the assistance she receives includes interpretation and translation services. But if a person receives assistance in preparing paperwork prior to a hearing to appeal a denial of benefits, it is not possible to know until after the hearing has occurred whether this assistance was sufficient or whether the person also needed representation in that hearing. In part because following up with clients is often costly and difficult, little of this information is currently collected.
But most civil justice problems are almost entirely invisible to researchers, since they are not taken to offices of government or to community nonprofits for assistance. Most are handled by people on their own or with the assistance of family and friends. Currently, only very limited information is available about these problems, who has them, and their impacts.
II. Is the justice system fair to all?
Who is able to resolve their justice problems lawfully? Who is not able to do so?
In a fair and accessible justice system, everyone would have the same chance to receive a lawful and just resolution to their justice problems, whether they were rich or poor, whatever their race, and whatever their age, national origin, or disability. To assess whether people are able to resolve their justice problems lawfully, three kinds of information are required:
- the number of different kinds of justice problems experienced by Americans;
- information about people experiencing such problems, including their age, gender, income, English language facility, disability, and race/ethnicity; and
- information about how those problems progressed and were resolved.
Determining whether a justice problem has been lawfully resolved can be challenging, but it is not always so. At base, a lawful resolution means that the result is accurate, given the facts of the situation and the applicable law, producing a resolution that falls within the bounds prescribed by the law. For example, an informal eviction, in which a landlord removes a tenant’s goods from an apartment and changes the locks so that the tenant is locked out, is not a lawful resolution to the justice problem of unpaid rent. Laws in every state say that landlords cannot lock out tenants from their rented homes without first going through a formal court process.
For some justice situations, the determination of accuracy is straightforward. For example, if someone is eligible for Social Security survivors’ benefits and submits sufficient documentation as required by the Social Security Administration, the lawful resolution is that the person receives the benefit. However, a justice problem can sometimes have several lawful resolutions. For example, when a landlord files a lawsuit to evict a tenant for nonpayment of rent, that justice problem could be resolved lawfully by the tenant and landlord settling informally for the tenant to pay the rent arrears; the landlord may then choose to drop the lawsuit. Or, the tenant and the landlord could reach a formal settlement that is reviewed by a judge and filed with the court. Or, the case could proceed to a trial and a judgment. If the judgment reflected a proper application of appropriate law to the actual facts, it would be a lawful resolution. The lack of information about different lawful resolutions makes it challenging to compare outcomes across different cases.
When accuracy is too difficult to determine practically, the analysis can instead focus on disparities, comparing the outcomes achieved by distinct groups, such as elderly and young veterans, African-American and Latino and White tenants, or men and women petitioning for orders of protection for domestic violence.
What is and is not already being collected?
Courts and other hearing authorities compile case files for the matters that come before them. These files include a range of pieces of information that would be useful, particularly in assessing disparities. Courts often know, for example, which cases are involuntarily dismissed, meaning that one or both of the parties wanted to continue the litigation but were not permitted to do so. Court files contain the content of orders and judgments. Court files also include information about the duration of cases.
With rare exceptions, courts do not collect information about the race/ethnicity, gender, language facility, disability, age, or income of parties. This means that courts do not collect or share information that allows assessment of whether they achieve their aim of ensuring that “all parties to a dispute—regardless of race, ethnicity, gender, English proficiency, disability, socio-economic status or whether they are self-represented—have the opportunity to meaningfully participate in court processes and be heard by a neutral third-party who will render a speedy and fair decision.”3
The information in court files is often necessary but not sufficient to assess whether a justice situation has been resolved lawfully. If a case resolves with a settlement or a judgment, lawful resolution requires the compliance of both parties with the content of the settlement or judgment. For example, if a landlord receives a judgment that she must repair an apartment but never completes the repair, the problem has not been resolved lawfully. Similarly, if a tenant receives a judgment requiring her to pay rent arrears and never pays them, the problem has not been resolved lawfully.
If a person with a civil justice problem does not end up in court but does receive some kind of service, some information may be collected about the problem, who has it, and some outcomes. As a matter of standard operating procedure, service providers collect some information about people who seek assistance and the problems they bring. Thus, some organizations already possess relevant data but little of it is organized, analyzed, or compatible with other systems in ways that would allow for sharing.
Lawful resolution is often possible to assess only long after a service is received. Collecting and analyzing information about the experiences of a client once that person has moved on is costly, and few organizations currently do so. In addition, no set of standards exists that provides guidance about what information should be collected consistently across sectors—legal services, human services, benefits offices, and so on. Developing such standards is an important step in collecting reliable, consistent, and useful information.
Available evidence suggests that most of the civil justice problems experienced by Americans are not taken to courts, or to lawyers, or to offices of government, or to community nonprofits for assistance. People take no action about many justice problems. Little information is available about these problems, who has them, or their impacts.4
- 3National Center for State Courts, Guiding Principles for Post-pandemic Court Technology: A Pandemic Resource from CCJ/COSCA, version 1, July 16, 2020 (accessed December 7, 2020).
- 4World Justice Project, Global Insights on Access to Justice (Washington, D.C.: World Justice Project, 2019), 108.