Chatbots are basic computer programs designed to simulate a conversation with a human user and have become increasingly popular in recent years as a way to provide customer service, answer frequently asked questions, and even provide mental health support. The latest advanced chatbot, called GPT-3 (Generative Pre-trained Transformer), uses advanced artificial intelligence and machine learning to generate responses to user inputs in a way that is designed to be exceptionally human-like and natural.

Because the need for low-income individuals’ legal assistance greatly outweighs the number of lawyers who can assist, GPT can step in to help spot users’ legal needs, build out and maintain legal navigators, assist legal services organizations with client in-take, and make court processes and forms easier to navigate.

And because most low-income individuals with legal issues don’t even recognize their problems as legal in nature, GPT can be taught to catch and identify a legal issue as the person seeks advice through a search engine. The person might then be directed to a legal navigator that will share basic legal information to help address their problem. For example, a site might provide a step-by-step guide to getting divorced, explain how to file a claim against an unlawful landlord (after identifying what constitutes unlawful behavior), or provide legal and other support options for domestic violence survivors.

Organizations like the Legal Services Corporation (LSC) and Pro Bono Net have already made great strides in building out content-rich online guides, which will become even more intelligent, accurate, and efficient by using AI.

“Imagine a user being able to ask for help and a chat bot trained from curated, reliable legal information websites providing a plain language explanation with step-by-step guidance,” says Jane Ribadeneyra, the Program Analyst for Technology for LSC. “Obviously, we will need to be cautious about using these new tools and ensure they don’t provide authoritative sounding, but incorrect, information to users. But, I believe those challenges will have solutions and new AI-based technologies we haven’t even imagined are on the horizon.”

Life-changing legal guidance

Indeed, enhanced guidance for those navigating legal issues on their own will be life changing. For those directed to local legal services organizations, for example, GPT can assist with the in-take process to make client qualification, referrals, and communication easier. Many legal aid organizations have limited resources and are unable to serve all of the individuals who seek their assistance. A chatbot could be used to help screen potential clients and gather basic information about their legal issues, allowing legal aid organizations to prioritize their cases and ensure that they are able to serve the most vulnerable populations, while referring out eligible cases for pro bono services.

Legal-focused AI can also assist with legal research and document preparation to resolve cases faster. For example, a chatbot could be programmed to search for relevant legal precedents or statutes and provide summaries of the information it finds. In fact, this technology is already being developed and refined among the legaltech community, and it could also be used to help draft legal documents, such as contracts or pleadings, by providing template language and guiding users through the process of filling in necessary information.

Legal-focused AI can also assist with legal research and document preparation to resolve cases faster.

“We’ve started building bots for the public to access basic legal information using GPT technology,” says Tom Martin, Founder and CEO at LawDroid. “With GPT, we can build these bots 10-times faster than with intent-based natural language systems. GPT-powered chatbots are also much more effective in guiding people quickly to relevant information. It’s funny that systems like Dialogflow, which were state-of-the-art about two months ago, have now been rendered old-fashioned.”

Amanda Brown, Founder and Executive Director of the Lagniappe Law Lab, agrees that things are changing fast and access to justice and legal work processes will be the beneficiaries. “New AI tools like ChatGPT have the capacity to significantly support access to justice when paired with allied professionals like legal navigators,” Brown explains. “Lawyers and legal navigators trained to use these tools will be able to more efficiently provide user-friendly information and do basic legal drafting, leaning on their legal training to ensure accuracy and completeness. As we look ahead in legal education and the development of new delivery models, training on the use of these tools should be an essential component of curriculum development.”

Further, collaboration among legal professionals and those developing AI tools will be crucial to ensuring accuracy, relevancy, and effectiveness.

Chatbots in the courts

Finally, GPT has a place within the nation’s courts to make our legal system more approachable and accessible to those pursuing justice. “Currently, I am building a few different chatbots for different workflows (criminal, civil, and drug court),” says Judge Scott U. Schlegel of the 24th Judicial District Court in Jefferson Parish, Louisiana. “Each is being built to help court users better navigate the justice system.”

Judge Schlegel explains his chatbots have the potential to scale the court’s limited resources, provide necessary information to lawyers and litigants at the right time, and help set expectations, which is extremely important. “We also hope to integrate these chatbots with the clerk of court’s system so that court users can get case specific information and a database of Louisiana laws,” he adds. “The sky is the limit with all of the potential use cases,”

One potential limitation of using GPT to increase access to justice is the risk of providing incorrect or misleading information, of course. While the bots are designed to be highly accurate and generate responses that are similar to those from a human, they will need additional training and may occasionally provide incorrect or outdated information. The chatbots should be regularly reviewed and updated to ensure they are providing accurate and up-to-date information — a potentially complicated task.

Despite those challenges, new technologies like GPT chatbots have significant potential to increase access to justice for individuals who are currently underserved by our legal system. By issue spotting, providing basic legal guidance and documents, assisting with legal services in-take processes, and helping court processes, GPT would make it easier for individuals in need to understand and navigate their legal issues. While AI won’t replace lawyers anytime soon, it is a critical tool to narrow our justice gap and should be used responsibly.

However, identifying the answers to that problem remains much tougher. Those at Stanford Law School’s 2023 CodeX FutureLaw conference presented some ideas — but ultimately, they said, those solutions may need to be technological, regulatory, and even psychological in nature.

The problem with tech

A session at CodeX, titled A New Era in Court Process Automation, brought together leaders from a number of technology companies and governmental organizations who were looking to make access to court systems easier. For panelist George Simons, whose company SoloSuit aims to help those facing debt lawsuits file in court more easily, the issue to tackle is twofold. First, is the need to address a court system that is bad at notifying parties of developments in a lawsuit. In many cases, those facing debt suits don’t even realize there is a complaint against them until they’ve already lost due to never actually seeing the complaint in time, Simons noted.

Then, even if they are notified of the complaint, a non-unified court system makes even submitting their response difficult. And scaling up a technology business to automate the debt form filing process is nearly impossible, Simons explained, because each court has different forms to fill out, and often the bureaucracy of the court moves slowly.

“To deal with the court, we have to print everything on paper and file it with the court by USPS,” Simons said. “Then once we send the file to the court, it goes dark.”

Panelist Noella Sudbury, Founder and CEO of Rasa Public Benefit Corporation, has found the same in her start-up that works to allow individuals to expunge their criminal records. Although 20 million to 30 million people in the U.S. are eligible for some sort of record clearance, only 10% actually make it through the process, Sudbury explained. Technology can help to a point, she added, but “we can’t speed up the government. …Very quickly it becomes very, very confusing to try and get through this process.”

One of the legal technology companies that has been able to scale up more quickly is Rocket Lawyer, but CEO Charley Moore, another panelist, said the main reason is specifically because the company deals with a lot of forms that don’t need to be filed to the government — contracts and personal legal documents among them. But when Rocket Lawyer has ventured into forms that necessitate dealing with government agencies, like submitting incorporation filings, “that is a more costly business… every time the government gets involved, the cost goes up and up and up.”

Finding the difference

Panelists noted that changing this problem isn’t a “red or blue [state] issue,” as Stanford Fellow Chandler put it. However, starting change is a matter of strong leadership, as well as changing mindsets in 50 different U.S. states that all have their own way of operating.

Moore agreed. “I don’t see much opportunity in this political climate for legislative solutions,” given that courts usually aren’t a pressing issue for legislators, he said., adding, however, he does see some progress in form standardization in states such as Nevada. Moore also noted the U.S. Supreme Court could even step in and make rules, similar to its actions around attorney advertising, though this area is unlikely to be a high priority right now.

Ultimately, where the most hope may live is in states such as Utah and Arizona that have changed their unauthorized practice of law rules to allow technology companies to implement new solutions. The experience of those states has shown “that it does take leadership,” Moore noted. “It’s really in the interest of local courts and local agencies to really adopt these reforms, because it’s going to make their forms more accessible and lower the costs administratively.”

“We have a system of Balkanized courts and not scalable solutions that result in court inefficiency.”

Panelist Grace Spulak, Senior Court Management Consultant at the National Center for State Courts, noted there are already initiatives underway to get courts more motivated to make these changes. She noted that at their core, courts are not averse to technology. “Courts want to administer justice, and they want to work more efficiently and effectively,” she said, adding that it’s a matter of convincing courts that their actions will actually positively affect this change.

Sudbury also noted that it’s helpful to humanize the population that will be helped by these changes. “When I look at the national conversation,” she said, “it feels very abstract.” But in actuality, the criminal expungement world is very personal. She told the story of one typical client who was looking to turn his life around while in a substance addiction recovery program and wanted to clear his record. The problem was he makes $15 an hour at his job — too much for legal aid, but far too little to pay for a lawyer.

“I think if people see the people behind these stories, those are the types of things that are really going to move the needle and prompt people to take action and change what the law can be,” Sudbury explained. “I think we need more examples like this to emotionally impact the leaders in this area.”

As new technologies create unique solutions to the access-to-justice issue, more companies like SoloSuit, Rasa, and Rocket Lawyer will continue to emerge. But increasingly, the main barrier in their way will not be a technological one, but rather a need to find a way to actually impact a court system that has long seemed stagnant.

“The technology is here already,” Moore said. “What isn’t there is the political will to make use of those tools.”

While 81% of state and county/municipal courts professionals say their courts are still holding some form of virtual hearings, those numbers are down, according to the Thomson Reuters Institute’s recent 2023 State of the Courts Report. Compared to one year earlier, in which 89% reported using virtual hearings, resulting in an 8-percentage-point drop. That drop is even more steep on the county/municipal court level, resulting in a 12-percentage-point drop over the past year.

Some access-to-justice advocates worry how a shift away from virtual hearings may impact efforts to improve court access to all citizens, particularly as those hearings have been touted as a potential path to opening up availability for underrepresented populations. As the State of the Courts Report suggests, however, the future may ultimately be a mix of in-person and virtual hearings. This, of course, will result in an increased focus on how to truly open up virtual hearings to all, as both constitutional and technology access barriers remain to full acceptance of such hearings.

The mix of the future

The move to go back in-person hearings doesn’t surprise retired Judge Ronald Hedges. Following a 20-plus year career as a Magistrate Judge in U.S. District Court for the District of New Jersey, Judge Hedges now is principal of his own firm, Ronald J. Hedges LLC, and chairs the American Bar Association (ABA) judicial division’s court technology committee. In conversations with courts around the country, Hedges says he has found a large appetite to start going in-person once again.

However, what he ultimately sees as the end result of the return to courtrooms is not fully in-person or remote — the answer may lie somewhere in between. “You’re going to be seeing a mix of proceedings,” he explained. “You’re going to be seeing live proceedings, there will still be some remote proceedings, and there are also going to be hybrid proceedings.”

Hedges points to potential constitutional issues that could come out of virtual jury trials, such as effective cross examination and 6th Amendment issues like the right to confrontation in criminal cases. However,  there are other hearings throughout a matter that could lend themselves more towards virtual proceedings, such as initial appearances in a criminal case, which would then make it unnecessary to transport a defendant to the courthouse for a short appearance.

Indeed, in the State of the Courts Report, litigants’ first or initial appearances and motion hearings were the top hearing types being conducted virtually for criminal cases, while motion hearings were the top hearing type conducted virtually for civil cases.

This tracks, Hedges notes, as a version of virtual hearings were already in use for some types of early proceedings even before the pandemic. Virtual hearings are primarily used as a matter of convenience, while still affording due rights. “Before I left the bench, we started doing telephone conferences” for multi-district litigation, Judge Hedges says. “Because frankly, it didn’t make much sense to me to make 30 lawyers or so truck into Newark, N.J., from across the country for a half-hour program.”

The lingering tech access issue

Many believe that a move towards more of these virtual hearings may help close the access to justice gap. The State of the Courts Report found that more than three-quarters of respondents (76%) believed virtual hearings would improve access to justice, an increase from 55% just one year prior.

Hedges acknowledges this change, but also reserved some skepticism. “There is a caveat to this and that is technology, and whether or not courts still have the technology to do what we were talking about.”

The report also reflected this worry. Access for people with lower-levels of digital literacy ranked as the top challenge for those conducting and participating in virtual hearings, with 42% of court professionals ranking it as a top challenge. Access to technical support (34%), access to broadband networks (26%), and access to technology needed to participate (26%) also were tanked within the top five challenges, the report shows.

For Hedges, these challenges need to be addressed before virtual hearings can truly take hold. “If courts are going to allow remote proceedings, then I think there has to be something done to ensure that every population has each equal access to that,” he says.

One possible solution that’s been discussed is giving courts budget increases to allow them to supply technology to parties so they will be able to participate. But Hedges is skeptical of the economic realities of attempting that method. “It’s like everything else when you’re talking about resources like this, it’s where’s the money going to come from?” he explained. “If someone is in a rural area… and they don’t have reliable broadband access or 5G access or the like, I don’t see them being given computers so that they can access online court proceedings. That’s just not going to happen.”

Until these constitutional issues are resolved, there may be an upper limit on the effectiveness of virtual hearings, as courts continue to use them for more administrative and procedural proceedings rather than actual trials. There are some lessons that courts have taken from the pandemic, with what type of proceedings will work virtually chief among them, says Hedges.

“At the end of the day, people saw all of this as being something we had to do at the time, because we didn’t have another way to get trials done,” Hedges explains. “And now there’s a big move to do trials, but I really don’t see much of an interest anywhere in having remote trials. I just don’t — and I think that’s unfortunate. But I appreciate why it’s done, and I can certainly understand that there just may not be an opportunity to do as much remote anymore.”

For further insight, you can download a full copy of the 2023 State of the Courts Report, here.

Even before the pandemic, however, courts needed to be modernized. And once the pandemic occurred, courts were pushed rapidly forward into a new world of virtual hearings, video conferencing between litigants and their lawyers, and other previously seldom-used innovations. And in just a few short years, these innovations in how the nation’s courts operate —on the federal, state, and county/municipal levels — have benefited citizens’ access to justice, making it easier for many people to participate in the court system when necessary.

Examining the impact of these trends, a new report by the Thomson Reuters Institute, the 2023 State of the Courts Report, looks at what judges and court professionals are saying about the challenges still rampant in the court system today, such as hearing delays and the need for advanced technology and digitization. Indeed, the report also looks at how many courts are continuing to leverage the new technology that was brought on by the pandemic such as video conferencing and what the impact of those innovations has been.

This report represents the findings of an online survey that was conducted with 201 judges and court professionals from November 1 to 17, 2022 by Thomson Reuters to better understand challenges in the judicial system, specifically around hearings, evidence, caseloads, and technology in the post-pandemic world.

Watch our on-demand webinar Strategies for Advancing Technology within the Courts, now

The report describes how steep challenges to our nation’s courts remain, specifically around the issue of hearing delays, which can have a cascading effect on the remaining cases on the court docket. In fact, a majority — as much as 79% in some instances — of judges and court professionals say they are experiencing delays in their hearings. Often, these delays impact other cases slated for that week, creating a burden on the entire court docket.

And even as the report lays out how improvements and updates in the use of virtual hearings have improved access to justice for many litigants, it shows that hurdles still remain, especially around outside internet and network access for many litigants with lower levels of digital literacy. Further, the report observes that more widespread use of technologies such as evidence management systems and document automation could go a long way to bringing the court system out of its previous reliance on paper files, overstuffed dockets, and failed in-person appearances that all still contribute to case-delays and calendar backlogs.

Key findings in the report

There were several significant findings throughout the report that came from the results of Thomson Reuters’ comprehensive survey, including:

• • • More than three-quarters of respondents (76%) say that virtual court opportunities increase access to justice for litigants — a significantly higher result compared to the previous report in 2021.
    • A majority of survey respondents say they are either conducting or participating in virtual hearings and expect to continue to do so in future. Currently, about 40% of respondents say the majority of court hearings in which they are involved are being conducted virtually.
    • Almost three-quarters of respondents say they do not use digital evidence management systems; yet, two-thirds of those report that they would benefit from doing so.
    • Almost 40% of respondents say they have introduced new or improved work methods, processes, or service innovations within the past 12 months.

Overall, what comes across in the pages of this report is a court system in which tremendous progress has been made in areas of improving access to justice and technological modernization, but much more still could be done. Indeed, as courts at all levels settle into a growing comfort with the technology they’ve employed since the pandemic, many are seeing new challenges that need to be addressed now in order to better move all legal system participants into a new age of digital efficiency.

You can download a full copy of the 2023 State of the Courts Report, here.

So if courtrooms are looking to innovate, where should they begin? Experts at the National Center for State Courts say based on their conversations, the answer lies not with a universal piece of technology, but rather with refining courtroom technology processes and adopting technology that fits a court’s specific needs.

Tech adoption, but smartly

Over the past three years, courtrooms have made a lot of strides in adopting virtual court technologies, notes Zach Zarnow, Principal Court Management Consultant with the National Center for State Courts. It’s just that those gains are often coming from different starting points.

“The playing field is not level,” Zarnow says. “There is so much difference across the country, as some courts that were better resourced are able to use more stuff, other courts that are less resourced have been creative and innovative by borrowing off-the-shelf technology.”

As a result, even assessing how courts adopted technology since the pandemic can be tricky. Lindsay Hafford, Senior Court Management Consultant for the National Center for State Courts, points to how many courts adopted some form of video conferencing platform, such as Zoom, out of necessity in order to hold remote hearings. That could be considered a step forward in technology adoption — but now, many courtrooms are struggling to integrate video conferencing with what was already installed in courtrooms, such as digital evidence presentation and court recording technologies.

“When they added on some of those pandemic-related technologies in order to do remote or hybrid court, those things don’t always talk to each other, so we’ve got courts that are struggling with that,” Hafford explains. “What they thought would be a temporary solution is left on top of the hard-wired, integrated solution that’s in the room, which it’s still just very challenging to work with.”

As a result, Zarnow and Hafford say they don’t measure technology innovation by type of technology adopted, but rather by how well the court is adopting processes to fit its needs. “There isn’t one piece of technology you must have,” Zarnow says. “There are outcomes, goals, and priorities that you set as an institution and that you’re required to set by the law that you then work backwards from to figure out which pieces will make that happen.”

For example, there have been plenty of online dispute resolution projects that have been undertaken in recent years due to pandemic pressures, he says, but they largely failed “because they paid no mind to what the process was, figured this is now going to be online and will therefore just magically be better, and it didn’t work.” In other words, just because a technology is innovative doesn’t mean its application is innovative.

“To me, the most forward-thinking [courts] are the ones that start from basic principles and don’t get wooed by the promise of a technology fix-it-all,” Zarnow explains. “Rather they should start with, what are we trying to do? How are we going to do it? And let the tests be thoughtful. And that is actually innovative.”

The need for a plan

That means, when looking to undertake a court innovation project, the first stop may be not what technology to implement, but rather what problems a court has to solve and whether it has the personnel on staff to solve those problems. Particularly after the past three years, a few easy first questions to ask are, what have we adopted already that’s working, what’s not working, and who do we have that would know?

Hafford notes that some court systems, like in Arizona and Minnesota, have put together committees to provide recommendations for how adopted virtual court technologies can be implemented in the future. Other states such as Texas are exploring possibilities for virtual jury selection, Zarnow adds. Yet, all of these plans have something in common: a desire to start by solving simple problems and pick up easy wins.

“You see these courts that are going for the typically higher volume, lower complexity types of cases or proceedings that could be more readily done remotely as a first option,” Hafford says. “And I think that’s where our mind goes, that’s an easy kind of win or an easy entry point into this, to maintaining the remote appearance option or requirement even for those types of proceedings.”

Sometimes, improving the user experience doesn’t even need to happen in the courtroom itself. Hafford adds that one of the major issues that arose with widespread video conferencing usage was simply notifying parties relevant details before the event — Zoom links, who to contact with connection issues, processes if there’s a drop in connection, and the like.

“I mean pre-pandemic, I think I can say most courts in the country weren’t always capturing email addresses for folks. Their systems may not have even had the field to capture the email address,” Hafford says. “So you have to talk about doing programming in your clerks’ filing system, so you can capture that email address. When you decide that you’re going to send out e-notifications with a link to access that Zoom proceeding for your official court event, that takes a lot of planning and a lot of groundwork that has to be laid.”

That planning is also crucial because court cases have little margin for error. What happens, for instance, if a defendant’s connection drops, and default judgment is issued before they can reconnect? “We’ve got some pretty basic issues that are very critical to the operation of a court proceeding: people in the room not being able to see and hear people that are appearing remotely in a hybrid situation — we can’t have court like that,” Hafford adds.

For any virtual court technology and innovation projects to really take off, in that case, planning around courtroom processes isn’t just a nice-to-have, but a must-have in order to achieve buy-in from all parties involved. “If those things don’t start to really gel, then I think that we’re going to see more judges say, I really just can’t risk this,” Hafford says. “And attorneys are going to be staying the same thing.”

In a May decision from the US District Court for the Southern District of New York, Upsolve, Inc. et al v. James, Upsolve, a nonprofit that helps individuals file for bankruptcy for free, challenged the state’s application of the unauthorized practice of law to other trained professionals. To help low-income individuals facing debt collection navigate and respond to their suits more readily, Upsolve launched the American Justice Movement program in January, which trains professionals to offer complimentary legal advice about whether and how to respond to debt collection lawsuits. Specifically, the volunteers sought to help New Yorkers fill out checkboxes on a one-page answer form provided by the State of New York to avoid automatic default.

In the Upsolve case, the New York Attorney General argued that such guidance was the unauthorized practice of law, but ultimately, the judge ruled that those rules did not apply to the program because the legal advice was protected as speech under the First Amendment. The court also stated that the advice mitigated the risk of harm to the consumer while addressing a significant legal problem area, further in favor of the decision.

In our new column, NextGen Justice Tech, by Kristen Sonday, we will take a look at the people, trends, and technology shaping the future of access to justice.

The ruling is monumental because it allows legal professionals to provide guidance on completing legal forms that might be applied to other areas of law, including through online tools that can reach exponentially more individuals.

“By ruling in favor of Upsolve, the Southern District of New York… established a new First Amendment right in America: the right for low-income families to receive free, vetted, and accountable legal advice from professionals who aren’t lawyers,” said Rohan Pavuluri, Upsolve’s Co-Founder and CEO.

If further applied to online forms and filing apps, then tech companies, court employees, and other volunteers would be able to assist people with basic questions about whether and how to respond to government requests, vastly expanding the number of people who can help. For individuals who are too afraid or uncertain of navigating such services on their own, this support would provide peace of mind and tangible next steps to assist significantly more low-income folks in managing the legal process.

The “sandbox” model

The implementation of state-run legal tech sandboxes is another opportunity to spur justice-related innovation. Utah was the first state to launch such a sandbox in August 2020, in which lawyers and legal professionals can develop and promote new legal solutions under the supervision of the state’s Supreme Court. One year in, the Utah Supreme Court had approved 30 companies, including those that created initiatives to provide individuals help completing court forms and receiving legal advice via chatbot.

The sandbox concept helps mitigate risk for justice tech founders since they’re building and testing ideas alongside a legal authority. In addition, through this model, “justice technology companies can partner with authorized legal services providers to offer consumers actual legal advice. Attorneys are the most obvious partners, but authorized document preparers, among others, are an often-overlooked partner,” says Natalie Knowlton, Founder of Access to Justice Ventures.

Finally, the Association of Professional Responsibility Lawyers (APRL) has made a powerful recommendation to update the American Bar Association’s (ABA’s) Ethics Rule 5.5 and permit lawyers who are admitted in any jurisdiction to be able to practice across others. “Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time,” the APRL wrote in its letter to the ABA president.

This change would be significant for justice technology companies and non-profits in that their lawyers would be able to serve individuals across jurisdictions, regardless of lawyer or client location. Justice tech companies would save time and money by being able to serve more individuals virtually, and with a leaner staff, could free up capital for other initiatives. For tech companies that currently have to hire staff who are licensed in each state in which they want to provide lower cost legal services, this reform would be game-changing.

“As a startup, an update to Rule 5.5 would allow us to move much faster in expanding our services to those in need,” says Erin Levine, the Founder and CEO of HelloDivorce. “We would be able to hire and train fewer, high-quality lawyers that provide consistency in our services across jurisdictions, as well as quickly build out subject matter expertise that can increase the number of clients served.”

Further, under this scenario, legal services organizations would be able to refer pro bono clients to attorneys across the country, making those referrals more efficient and potentially better aligned. The rule also would greatly enhance access for folks in rural areas, as they often are limited to those lawyers in nearby metro areas who might work on their matters.

By being able to access legal assistance from anywhere in the United States — via in person or online, through lawyers or other approved professionals — the magnitude by which the legal profession could greatly help those in need through better legal reforms is significant for the justice tech community and underserved citizens across the country.

This has allowed courts, litigants, and others to recreate the environment of a face-to-face court proceeding, with the added benefit of efficiency for all and improved access to justice for citizens.

Key considerations for courts

Of course, there are several key considerations that courts need to address as they continue to pivot towards conducting proceedings remotely.

What does a fully remote or hybrid proceeding entail?

In a remote proceeding, the judge, attorneys, clients, witnesses, and other participants can appear from multiple locations. By contrast, a hybrid proceeding involves some participants — often a witness — appearing remotely, while others are present in the courtroom with the judge. In either of these proceeding types, participants must have access to the specific remote technology used by the court, which frequently involves Zoom videoconferencing. While videoconferencing typically serves as a primary method for conducting a remote proceeding, a telephone backup ensures that the proceeding can continue to take place even if technical difficulties arise.

Courts may utilize different features for the videoconferencing platform as well. For example, one of Zoom’s standard features involves a private breakout room, which allows attorneys and their clients to privately communicate with each other through the Zoom platform. However, Idaho state courts disabled Zoom’s private chat feature for participants and instead require them to communicate outside of Zoom, such as by telephone.

The judge and court staff remain in control over a remote proceeding and, for example, can employ the mute feature to silence any disruptive participants.

How do the courts determine which proceedings will occur remotely?

Concurrent with rolling back orders and directives governing the pandemic, several courts have established procedures, orders, and rules addressing the specific circumstances for remote and hybrid proceedings. These proceedings vary among state and federal courts and the type of court proceeding.

What are advantages to remote proceedings?

Remote proceedings help limit litigation costs, by eliminating attorneys’ travel time and any waiting time at the courthouse. Remote proceedings also allow a party to present testimony from witnesses who may not be able to attend in person. For example, a key witness may be unable to attend in person because of their location, financial condition, or health, yet the witness may be able to participate remotely.

Courts usually can handle many matters remotely with the same effectiveness as in-person proceedings, such as holding status conferences or motion hearings that may involve non-evidentiary or procedural matters. Remote proceedings also provide flexibility for courts in scheduling proceedings when an in-person proceeding is impossible, because of a lack of available courtrooms, for example. Remote proceedings also promote public access to the courts by allowing additional viewing through livestream or recordings.

What are disadvantages to remote proceedings?

Remote proceedings may not be an effective substitute for an in-person proceeding, however. Assessing the effectiveness and credibility of a testimony requires being able to observe a witness’s demeanor, which may be impossible, limited, or even appear unnatural when captured by camera in a remote setting. Likewise, presenting exhibits can involve unique problems in a remote proceedings, requiring an ability to use the “share screen” feature and multi-tasking between sharing or reviewing displayed exhibits. If a problem arises, the effectiveness of testimony exhibits may be lost, especially if participants are forced to use a dial-in number or hold exhibits up to the camera.

Remote proceedings also restrict the ability for counsel to confer with their clients in confidence. During a proceeding, counsel and their clients oftentimes communicate by whispering or passing notes. However, a remote proceeding requires having an ability to communicate through a breakout room, texting, or otherwise, but without the appearance of distraction or improper coaching.

Further, a remote proceeding requires that the participants have technical capacity and competency. This includes having a reliable internet connection, a compatible computer, familiarity with the videoconferencing platform, and a backup plan — such as a smartphone app or dial-in number — if connectivity issues arise.

What safeguards are necessary for remote proceedings?

As with in-person proceedings, remote proceedings must comply with applicable procedural requirements, including any constitutional and statutory rights, such as constitutional due process. Additional safeguards may be necessary so that participants can have an ability to meaningfully participate, including if a participant (especially a self-represented party) cannot use a videoconferencing platform.

As a result, courts may need to facilitate access to remote proceedings by providing instructions, verifying the ability of litigants to participate, having a backup if technology fails, or holding a proceeding in-person when all else fails. Indeed, many courts, such as the US District Court for the Western District of Texas, provide detailed guidance for using Zoom, while others, like the Massachusetts Trial Courts, provide Zoom Rooms to accommodate litigants.

You can find out more about remote court proceedings here.

The COVID-19 pandemic and resulting lockdowns and government closures changed the way we were allowed to communicate, limiting personal contact and requiring the use of all alternative means. Ultimately, this advanced our overall ability to communicate and interact remotely. More than 30 states suspended in-person court proceedings for weeks or months after the pandemic hit in March 2020. New Jersey, Connecticut, Delaware, New Mexico, and Alaska mandated their use; and states including New York, California, and Texas urged use of virtual proceedings while suspending conflicting court rules. The pandemic may have forced government’s hand, but many courts and related agencies rose to the challenge in understanding new ways to use technology to ensure that people’s rights were preserved and protected.

A failure to provide adequate protection of citizens’ rights leads to more than a clogged court. There are civil implications, such as allegations of civil rights violations and expensive court cases. For example, a lawsuit, brought by San Francisco’s public defender against the San Francisco Superior Court on behalf of nearly 400 remanded prisoners goes into details about how defendants’ constitutional rights to a speedy trial could be being violated by delays and backlogs due to an overburdened and technically-stagnant court system.

As pandemic restrictions are lifted, courts must balance the benefits of traditional means of adjudication against valuable opportunities to use more advanced means. Governments must evaluate the merits and protection of rights afforded in both the use of traditional communication and virtual appearances. The goal of the court is to preserve rights, and it has become obvious that a hybrid model (using virtual and in-person options) is the best way to make sure individuals have the most opportunities and options to exercise their rights.

Participation & access are key

One of the major hurdles to access to justice, of course, is participation in the process, which can include transportation issues, childcare, time off of work, and many other issues that some people can afford to take for granted. The use of the courts’ time to issue bench warrants, dismiss for want of prosecution, and entering default judgements only to have to appeal and re-address the same issues, is an inefficient use of the limited funds allocated to the judicial system. Texas Chief Justice Nathan L. Hecht clearly explained this as the “new normal”, saying: “We really are determined to take what we learned in the pandemic and build on it.”

In Arizona, judges and other state court officials reported increases in case participation rates in 2020, which they attributed to the move toward remote proceedings. For example, there was an 8% drop year-over-year in June 2020 in the rate of default, or automatic judgments indicating an increase in participation. In Arizona’s largest county, Maricopa, the failure-to-appear rate for eviction cases decreased from nearly 40% in 2019 to approximately 13% in February 2021.

It is a critical net step for the courts and access-to-justice advocates to evaluate each change that was made in an effort to get through the period of crisis and determine which changes are critical to maintaining a properly functioning court system. While this answer will inevitable be complex, it will ultimately make the justice system better and save time and money. In many states this process has already begun.

In June 2020, the state of New York created the Commission to Reimagine the Future of New York’s Courts, a group of judges, lawyers, academics, and technology experts that is studying how courts operated during the pandemic. In April 2021, the group issued technology recommendations to “improve the efficiency and quality of justice services during the ongoing health crisis and beyond.”

As the nation enters a period of post-pandemic recovery, all government agencies have an obligation to grab hold of the lessons and technological advancements that were brought on by the pandemic and subsequent crisis. Using these lessons to create a more just court system is one way to not waste that crisis and struggle it caused.

As the A2J issue has exploded, so too have the potential solutions, including technology-based ones. In fact, technology in this space, known as “justice tech,” offers one of the best opportunities to solve for major challenges in this area.

What is justice tech?

Justice tech refers to technology-enabled innovation that supports people affected by the US criminal and civil justice system and their families (and the organizations that serve them).

While many startups have existed in this space for quite some time, justice tech as an investment sector was only recently defined during a summit that was convened by Village Capital and the American Family Institute for Corporate and Social Impact (AmFam Institute) in 2020 to redefine the criminal and civil justice tech sector from an ethical, human-centered perspective.

The event brought together an advisory board comprised of grassroots activists, foundation leaders, startup founders, legal experts, and venture capitalists to ensure this new sector is incentivized to create, support, and fund “human-centered solutions” and is led by people with direct experience within the criminal and civil justice systems.

The business opportunity is enormous because it aims to disrupt an antiquated system via technology. This is critical in a global legal environment in which more than 5 million people cannot access the legal help they need, according to the World Justice Project’s Rule of Law Index 2021; and 23 million people per year must represent themselves in US civil proceedings.

Efforts to accelerate investment in early-stage founders

Both Village Capital and the AmFam Institute continue to collaborate to encourage investment in this space, while ensuring that positive social impact remains at the forefront as this nascent sector develops. As the newly minted startups gain momentum it’s imperative to ensure that the idea of justice tech is viewed as synonymous with positive social impact, rather than letting the moniker be co-opted by companies that inflict community harm under the guise of a hot new sector.

Indeed, this sector represents a unique paradox — entrepreneurs with the highest likelihood of developing successful and impactful solutions are also overwhelmingly those overlooked by investors. Thus, early-stage support of these founders is critical to scaling success.

Fortunately, the framework of this process is designed to support investors who are beginning to explore the space and ensure that they are mobilizing capital into ethical justice tech, highlighting areas around team, business model, product, and community engagement.

To expand this kind of investor engagement and to expedite progress of the sector, Village Capital, the AmFam Institute, and Dream.org are launching a fellowship program, Innovations in Justice Tech, this fall that will support justice tech startups from across the US. The goal of the program will be to connect existing investor networks to a pipeline of founders, while generating positive social and environmental outcomes the sector’s founders.

The program will support eight to ten for-profit justice tech innovations — thought to have the potential to improve the lives of individuals and communities impacted by the US justice system — through an application process.

Launch of the Justice Tech Association

One of the key tenets that is attracting actors to justice tech is the push that the best solutions are built by those with the lived experience with the problems that they are trying to solve, says Maya Markovich, Justice Tech consultant at Village Capital. “Justice tech founders are historically overlooked for funding,” Markovich adds.

To address this problem, Markovich and four other justice tech startup founders — Courtroom 5, HelloDivorce, Easy Expunctions, and People Clerk — created the nonprofit trade group, Justice Technology Association (JTA), in February 2022 with its own board of advisors.

The launch of JTA is another key step in defining justice tech as a component of the legal industry that can build awareness among innovators, technologists, and venture capitalists of the opportunity presented by justice tech startups and nonprofits to tackle complex challenges and disrupt antiquated legal systems.

Currently, the organization is focused on a few key pillars, including:

• • • establishing, fostering, and providing access to a centralized justice tech ecosystem;
    • acting as a resource for those seeking to learn more about justice tech or exploring related funding opportunities;
    • presenting a collective voice to boost impact and advocate for regulatory reform; and
    • educating investors, consumers, and legal professionals about how technology can improve access to justice and administration of legal services to the millions of people who are unable to obtain equitable justice.

As justice tech sector continues to attract increased interest based on its growth so far in 2022, JTA membership also has grown from four in March to 30 member organizations today, with new applications coming in every week. “This space is exploding in a way that we saw in legal tech five years ago — but faster,” Markovich states.

One of the most important duties of a prosecutor is the legal requirement to turn over exculpatory evidence, meaning evidence that could prove innocence, reduce a sentence, or otherwise cast doubt on the guilt of a criminal suspect.

Prosecutors continue to face technology issues related to evidence, particularly when digital evidence is involved. This was true when I was a prosecutor, and it continues to be an important topic now, in 2022.

“The biggest thing prosecutors were facing pre-COVID and continue to face today is the ability to get access to evidence,” says Mahesh Rengaswamy, Senior Director of Digital Courts Strategy at Thomson Reuters. “Prosecutors need a consistent way to get access to the information they need to do their work in a timely manner.”

Video evidence, body cameras & more

I recall the days when a police report would show up on my desk, and I noticed that there was video evidence of the alleged crime. I often approached those moments with some trepidation. Did the officer bring me a DVD copy of the video? Will the video play on my computer? Even if it does, will the video clearly show what the officer was alleging in the report? And if the video isn’t playable, will we have to drop an otherwise provable case?

Digital evidence is a relatively new phenomenon for law enforcement investigations. And yet more cases are relying on it, and this includes such digital evidence as: video footage of a crime scene from closed-circuit television (CCTV); video footage from a civilian’s cell phone or their own security cameras such as Ring or Nest; footage from an officer’s body camera; data or information on personal computers or on portable electronic devices such as smartphones; and the list goes on. Simply put, the amount of data prosecutors are dealing with has exploded.

One main issue underlying digital evidence is admissibility in court. Is there a proper chain of custody showing how physical or electronic evidence in criminal and civil investigations has been handled? This typically means a chronological paper trail documenting when, how, and by whom individual items of physical or electronic evidence were collected, handled, analyzed, or otherwise controlled during an investigation.

Digital evidence clearinghouse

A cloud-based digital evidence clearinghouse in which evidence is collected, uploaded, and stored into a central repository — while providing a digital paper trail — is one avenue that experts are considering. Law enforcement agencies could funnel the evidence into one system and have it tagged and organized for ease of use and sharing, says Rengaswamy. This could be anything from still photos of a license plate to actual video footage of an attempted convenience store robbery. “There would be no hunting or making phone calls to 15 different people to authenticate the piece of evidence,” says Rengaswamy.

This digital evidence clearinghouse would be a central place where all the information is consolidated across multiple law enforcement agencies. It would solve a workflow challenge that currently has prosecutors typically dealing with multiple agencies at a time, whether city, county, or federal government law enforcement, all of whom may all use different systems for evidence collection and submission to the prosecutor. In a cloud-based environment, this would change to one solution, one place.

Inefficiency in the exchange of data

One thing both law enforcement officers and prosecutors could use more of is time. Dealing with digital evidentiary issues often requires the transfer of large amounts of data, and this takes time. In footage from an officer’s body camera, for example, there is the time to record the footage, retrieve it from the officer’s device and then transfer it to the police agency’s server. Then the evidence will go from the server to the prosecutor, who hopefully can access it when the police report arrives on the prosecutor’s desk. Finally, a prosecutor also has to ensure that a copy is made for the defendant and the defense attorney.

Rengaswamy suggests that if an officer had access to a digital, cloud-based solution, the camera footage would simply be upload instantaneously when the officer connects to the server, either back in the police car or back at that station. The power to immediately push the information to a cloud server to which everyone has access eliminates many accessibility challenges.

“Gone are the days of coding and integration to move bits of data from law enforcement to the prosecution,” notes Rengaswamy. “Cloud technologies eliminate all of that. There is one copy of the digital file for everyone to use. That’s the ultimate goal.”

Proprietary video footage

Having one place to upload, store, and access digital evidence is a great idea, but what about civilians or others who are using older CCTV cameras with proprietary video systems that only play on their DVD players or on some other format?

Rengaswamy explains that this shouldn’t be a problem since it is often the same codec or underlying technology, in most cases an .mp3 or .mp4 file. “Today there are software tools that can essentially decode the proprietary data and make it playable on a simple web browser,” he adds.

Indeed, we’ve come a long way from the days when the police officer needed to take the whole hard drive back to the prosecutor’s office to play the video, or burn a DVD and play it on a specific player that only played those specific video formats.

“In the search for truth, justice, and transparency, everyone should be singing from the same sheet of digital (evidence) music,” Rengaswamy says. “Everyone can be given access to the same information, and that leads to ensuring access to justice.”