Courts Shifted Online During the Pandemic
The changes marked a reimagining of how justice is administered—but also exposed what still needs to be done to make the civil court system accessible to all.
America’s civil courts—which handle debt collection and other disputes for millions of people each year—had been inching forward in recent decades to modernize procedures and to embrace technology that would permit video hearings and electronic filing of paperwork, easing the burden on those not represented by lawyers.
Then came the pandemic. Court systems throughout the nation had to curtail or eliminate in-person hearings, so to keep the wheels of justice turning, many proceedings had to be moved online—and fast.
The result was a quick and remarkable transformation in many courthouses for civil litigants—who, unlike criminal defendants, are not guaranteed a right to a lawyer—as they navigated complicated legal issues such as being sued for allegedly not paying debts. A report released in December by Pew’s civil legal system modernization project found that within weeks of the pandemic’s onset, every state and the District of Columbia had initiated virtual hearings, and most had begun to permit litigants to file documents via the internet. Texas, for example, which had never held a civil hearing via video before the pandemic, conducted 122,000 of them in April and May 2020.
Although researchers lacked complete data, they noted that court officials across the country—including judges, administrators, and attorneys—pointed to an increase in appearances at these video hearings compared with pre-pandemic in-person hearings. In Arizona, for example, the number of people who lost cases by default for failing to appear at a hearing fell 8% from June 2019 to June 2020.
Litigants’ failure to appear for hearings is often the reason they lose cases. From 2010 to 2019, for example, more than 70% of defendants in debt-collection cases across multiple court jurisdictions failed to appear at hearings and had default judgments entered against them, according to the Pew project’s research.
But once the pandemic hit, defendants could present themselves in video conference, use online portals, or even email to verify making a disputed rent payment or, in a child support case, to report a job loss. Women seeking protection from abuse orders no longer had to face their abusers in the courtroom. And litigants didn’t have to take a day off from work, arrange transportation, or find child care to appear in court.
“The courts made a heroic effort to get online, and it’s really commendable how they created ways for people to access the system without any risk to public health,” says Pew’s Qudsiya Naqui, who co-authored the report, “How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations.”
She noted that 30 million Americans each year have to navigate legal problems in court without a lawyer, with 1 in 3 U.S. households facing a housing, family, or debt issue serious enough to draw them into the legal system.
“These are cases that can have significant life consequences,” Naqui says. “For example, if you are not able to get online and modify your child support payment because you lost your job due to the pandemic, you could end up in arrears for child support that can result in incarceration in some states.”
Yet for all the technological advances that courts adopted, the report also found that for some people without lawyers, the civil legal system actually became more difficult to navigate when the pandemic shut the courthouse door. Many people without lawyers, who in the past could have walked into a court clerk’s office to ask for help, were stymied: Some don’t have access to a computer or the internet, the report said. Legal terminology can be difficult for those without training. And for people with disabilities or limited English skills, the hurdles are even higher.
At the same time, large debt collectors, operating with significant professional legal assistance, have leveraged the new court technology to their advantage. The Pew report noted that ProPublica, an independent investigative news organization, found that debt collectors have used electronic filing to file lawsuits in bulk, often thousands at a time.
In contrast, the report also found that eight states didn’t create a similar mechanism for people without lawyers to electronically file paperwork in debt collection lawsuits, and nine states didn’t do so in eviction cases. Given that more than 90% of defendants in debt collection and eviction cases do not have a lawyer, they were at a substantial disadvantage when attempting to respond to debt collection and eviction lawsuits in these jurisdictions.
The Pew project to modernize the civil courts—created in 2018 with a goal of making the civil legal system more open, efficient, and equitable for the millions of people who navigate courts without a lawyer each year—has been working with partners in several states that are leading modernization efforts.
One of those states is Utah, where state Supreme Court Justice Deno Himonas says he’s optimistic that thoughtful progress will continue when the pandemic eases and courts go back to in-person business.
“It’s kind of slow going,” he says. “You can think of the courts as a giant aircraft carrier that’s slow to turn, but the pandemic has forced courts worldwide—certainly in the United States—to confront some of the limitations of the old model and do it rapidly. You know the old adage about necessity being the mother of invention. We were able to pivot more in a month than we could in years before.”
That was true in Philadelphia Family Court, which used online technology for the first time during the pandemic. One litigant, who asked that her name not be used, is a mother of three who has spent three years battling her former boyfriend over child custody, child support, and protection from abuse.
She had moved from Pennsylvania to North Carolina with her children. Not having to rent a car and drive back to Philadelphia for hearings—7½ hours each way—allowed her to keep her children at home and in school. Before the hearings were moved online, she says, “there were times when they’d miss three days out of five.”
Still, she says the technology could be difficult to manage even though she didn’t have to appear in person. She recalls a video hearing in which she sat in a virtual waiting room unable to be seen by the judge, who proceeded without her. Her alleged failure to appear was used against her in later proceedings.
She ended up getting help from a Philadelphia Legal Assistance lawyer.
“I don’t know how anybody does it without a lawyer,” she says. “You can’t get in contact with anybody. You can’t call up and ask questions. Which courtroom am I in? What time is it for today? How do I upload my employment verification for child support?”
Family Court in Philadelphia has stopped using the new technology, but Leslie Allen, the attorney who helped the woman, says she hopes it returns to video hearings and online filings. (Pennsylvania courts are looking at procedures for the future.)
“They created a system that at first was very clunky, but, a year into it, it was running smoothly,” Allen says. “I heard from multiple judges and hearing officers that a higher number of people were attending their hearings. With remote technology, a lot more people were able to move forward and pursue their case.”
As Pennsylvania and many other states contemplate how to adapt the lessons from the pandemic in administering civil courts, the Pew report offers recommendations to ensure that litigants—especially those without lawyers—have better access to the system.
One is that technology tools should be accompanied by simplified forms and processes to avoid the pre-pandemic norm of complicated attorney-centered procedures.
Another is that new technology should be tested with members of the public who will use it to ensure that it is accessible and meets their needs.
And, finally, court systems should collect and analyze data about their functions to better understand the effects of online processes.
“The goal should be to make the system more accessible for the millions of people who don’t have access to legal counsel,” Naqui says. “People should feel they had a fair, equitable experience when they go through the courts.”
Tom Infield is a longtime Philadelphia journalist and frequent contributor to Trust.
