How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations Before COVID-19, Courts Were Slow to Embrace Online Document Submissions Beginning in March 2020, Courts Deployed Tools to Help Some People Without Lawyers Per

Overview

The outbreak of COVID-19 in early 2020 forced public services to shift to online operations in a matter of weeks. For the nation’s courts, that meant reimagining how to administer justice. Media coverage has focused mainly on the effects of the digital transformation in criminal courts, but a rapid deployment of new technology also took place in the civil legal system.

This adoption of digital tools in the civil courts has significant real-world implications. Unlike their criminal counterparts, civil courts do not guarantee a right to counsel, meaning they do not provide attorneys for those who cannot afford them. This leaves roughly 30 million Americans each year to navigate potentially life-altering legal problems, such as eviction, debt collection, and child support cases, on their own. For these litigants who are responsible for a variety of complex tasks—including finding the appropriate court to hear their case, filing motions, arguing before a judge, and interpreting laws—technology holds the promise of a more accessible system with better outcomes.

Even before the pandemic, national judicial groups such as the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) had called on courts to use technology to improve the experience of litigants, especially people who do not have attorneys. And just months after the pandemic began, states throughout the country moved to adopt a range of technological tools to keep their court systems available to the public, quickly shifting from requiring people to submit paper documents and appear in person before judges to widespread use of electronic filing (e-filing) systems, virtual hearing platforms, and other tools.

To begin to assess whether, and to what extent, the rapid improvements in court technology undertaken in 2020 and 2021 made the civil legal system easier to navigate, The Pew Charitable Trusts examined pandemic-related emergency orders issued by the supreme courts of all 50 states and Washington, D.C. The researchers supplemented that review with an analysis of court approaches to virtual hearings, e-filing, and digital notarization, with a focus on how these tools affected litigants in three of the most common types of civil cases: debt claims, evictions, and child support. The key findings of this research are:

Court officials have made clear that improvements in technology must benefit all parties. CCJ and COSCA approved a resolution in July 2020 recommending that their members “ensure principles of due process, procedural fairness, transparency, and equal access are satisfied when adopting new technologies.”⁶

Based on research and in consultation with CCJ, COSCA, and other experts, Pew has identified three key steps courts could take to realize the full potential of improvements in technology-driven tools:

The monumental efforts made by state courts in 2020 and 2021 represent an important step toward modernization. This report examines courts’ transformation during the pandemic and assesses the extent to which it has made the civil legal system more open, with operations and procedures that are clear and understandable; equitable, so that all users can assert their rights and resolve disputes even without legal representation; and efficient, to ensure that people’s interactions with courts ensure due process and feel easy and timely. And finally, this report explores additional steps court systems could take to build upon their progress.

Methods

This study employed a two-pronged approach to data collection and analysis of state civil court responses to the coronavirus pandemic. To understand how rapid adoption of online processes affected the ways litigants could interact with the civil legal system, Pew researchers examined pandemic-related emergency orders issued by the supreme courts of all 50 states and D.C. between March 1 and Aug. 1, 2020. That five-month period featured the greatest amount of decision making related to court operations, technology adoption, and the suspension and resumption of various types of cases, of any span since the onset of the pandemic.

The analysis focused on technologies adopted to address court processes that occur across case types, including e-filing, virtual hearings, and e-notarization, as well as the management of specific types of cases—eviction, debt collection, and child support modifications—that fill civil dockets and acutely affect economic outcomes for individuals and families. Which technological tools were examined reflects the importance of two functions— court appearances and document submission—to litigants’ efforts to advance their cases.

Further, the research included a review of about 70 academic and “gray literature” sources (i.e., studies that have not been peer reviewed). About half of those related to how technology adoption affected the experiences of litigants in the three types of cases, including advantages and barriers to online court processes. The other half helped to place pandemic-related adoption of virtual hearings and e-filing within the broader historical context of courts’ use of technology.

Pew researchers also examined data from the U.S. Census Bureau and the Federal Communications Commission (FCC) on broadband internet and related technologies necessary for accessing online court services as well as from a Wesleyan University database of state and local emergency court orders to identify how often those orders referenced accessibility for people with disabilities and limited English proficiency. Please see the separate methodological appendix for more details.

Courts adopted technology at unprecedented speed and scale

In a typical court case, the first step in resolving a legal problem has been filing paperwork with the court clerk to initiate a lawsuit. The opposing sides then appear in court to learn the status of the case, report on whether they have been able to reach a settlement, and determine the steps needed before trial. The process also typically involves submission of evidence, including materials that need to be signed and witnessed by a third party, as well as status reports on negotiations, examination of evidence, and other tasks. And if the dispute is not resolved before the trial date, the parties then appear before a judge.

Even long before the pandemic, court officials recognized that technology would need to become a permanent feature of the legal system. In 2006, CCJ and COSCA called for courts to use technology to improve affordability, efficiency, and access.⁷ Other judicial bodies, as well as individual judges, have made similar pronouncements and recommendations over the past 20 years.⁸

However, that guidance had not delivered the sort of sweeping change that could benefit a variety of users. During the first two decades of the 21st century, some courts had been slowly moving their processes online. Their efforts focused mainly on two sets of functions: the completion of discrete tasks, including filing and notarizing documents; and the hearing of disputes by a judge. (See Figure 1.)

Figure 1

Digital Tools Can Help Courts Streamline Processes, Litigants Prepare for and Resolve Cases

Steps of a civil case and the technologies that support them

(c) 2021 The Pew Charitable Trusts

Navigating Civil Courts Without an Attorney

Even before the pandemic, the many steps and complex documentation required to proceed in a case made the civil legal system difficult to navigate for people without lawyers. The National Center for State Courts (NCSC) estimates that 3 in 4 civil cases involve at least one party without an attorney.⁹ People without counsel are perhaps the largest and most diverse group affected by court processes, and, whether plaintiffs or defendants, they face myriad barriers.

People seeking to initiate cases in civil courts are met with a byzantine process that presumes a basic level of legal knowledge. Understanding complex language and knowing the correct forms to file and how to submit them are prerequisites for civil plaintiffs. And the civil court system is at least equally difficult for individuals who are being sued. Defendants may not receive, or may be confused by, notice of a lawsuit against them, which can result in a failure to appear in court and a default judgment in favor of the plaintiff.¹⁰ When courthouses were still open, litigants without lawyers often endured long lines, struggled to complete complicated forms without legal help, or could not get the necessary time off of work, find child care, or arrange transportation to even make it to a courthouse.¹¹

Although courts clearly recognize the need to be useful to all litigants, they were designed by and for lawyers and have historically had difficulty meeting the needs of people without counsel—and even more so certain subpopulations within that group. Unrepresented people who have disabilities or limited English proficiency encounter additional barriers to access that civil courts overall have not addressed. Although court officials have long acknowledged the issues faced by people without lawyers and the potential of technology to remove some of those barriers, changes had been halting before the pandemic.

Further, the extent to which court systems were already online before the pandemic struck—and the types of technologies they were using—varied widely from one state to the next and between cities and counties within the same state.

However, as COVID-19 swept across the country, courthouses shut their doors, and state court systems moved swiftly to digitize their processes. Beginning in March 2020, all 50 states and D.C. adopted statewide or local rules to govern digital operations, shifting civil court business online in two areas: moving from in-person to virtual hearings and digitizing practical tasks—such as preparing and tendering court documents—that litigants must complete before a hearing. In particular, e-filing tools allow litigants to submit documents online, and e-notarization systems facilitate electronic verification of documents.

For evictions, one of the most common types of civil case, no jurisdiction in the country had consistently used virtual meeting technology for these proceedings before the pandemic, but by November 2020, 82% of all state courts were permitting or encouraging remote hearings, with 15% mandating them.¹² (See “Evictions Proceeded During the Pandemic.”)

And similar shifts took place across civil court dockets, as states quickly moved to use virtual meeting technology. For instance, neither Michigan nor Texas had conducted a single video hearing for a civil court case before the pandemic, but between April 1 and June 1, 2020, they conducted more than 35,000 and 122,000 video hearings, respectively.¹³

Further, before the pandemic, many states had some procedures for the electronic submission and verification of documents, but the COVID-19 lockdowns forced the adoption of additional tools and systems to allow business to continue. And the changes reflect court officials’ ability to put user needs before their own preferences and traditions, namely, complex paper-based and in-person functions.

As of 2019, 37 states and D.C. allowed litigants without lawyers to use e-filing to upload complaints, responses, and other documents directly to court systems, and 34 states had authorized e-notarization for official documents, such as written testimony and statements. (See Figure 2.)