Deno Himonas: Online courts offer promise, but a thoughtful approach is a must

People with legal issues, but without lawyers, must have access to electronic court filings.

(Eli Lucero | Pool photo) Chief Justice Matthew Durrant, left, listens as Justice Deno Himonas asks a question during oral arguments, March 19, 2018, in Logan.

When the COVID-19 pandemic shuttered courthouses in 2020, judicial leaders found themselves at a crossroads. For centuries, the courthouse has been the emblem of legal process and fairness in this country. Justice was perceived to be delivered by two attorneys, with piles of paperwork in front of them, sitting in front of a judge and arguing on behalf of their clients.

The pandemic forced courts to abandon this model overnight.

Courts remained operational during the COVID-19 crisis by moving much of courtroom activity online, where people, most of whom didn’t have lawyers, faced legal problems such as eviction, debt collection lawsuits or modification of child support payments as they struggled with job loss and a public health emergency. The effort revealed the long road ahead to ensure online court offers everyone fair treatment.

According to a new report from The Pew Charitable Trusts, every state and Washington, D.C., allowed or required virtual hearings during the pandemic. Ten states created tools for people without lawyers to file paperwork online when they’d never done so before. Utah counted itself among these states — moving to virtual hearings and creating an electronic filing system for people without lawyers in eviction, debt collection and small claims cases.

Early data suggests that the rapid and widespread measures courts took to digitize their processes in response to the pandemic improved overall participation in the justice system. In Arizona, for example, court leaders reported an 8% reduction in default judgments (automatic rulings in favor of the plaintiff because the defendant didn’t show up) between June 2019 and June 2020.

But unfortunately, the early data also suggests that the benefits were lopsided and tended to favor those with representation. Litigants with lawyers found that technological innovations made it easier for them to file cases in bulk. For example, Pew noted that ProPublica had found that after a brief pause when courts temporarily closed, “national debt collectors who file suits in states across the U.S. quickly ramped up their filings, using online tools to initiate thousands of lawsuits each month.”

By contrast, however, Pew found that in the early months of the pandemic people without lawyers were often barred from electronically filing documents. In debt collection cases, for example, eight states prevented unrepresented litigants from filing electronically.

Pew’s report also found that courts have struggled to ensure that the benefits of technological improvements are accessible to all. Even before the pandemic, people without access to reliable internet service, people with disabilities and people with limited English proficiency have encountered additional barriers to access in civil courts. And while new improvements in court technology have the potential to assist all litigants, it seems as though we’re not quite there yet.

So, what can be done to optimize the use of court technology and bring positive change for all? As court leaders, many of us have recognized these challenges and are working together to ensure a more sustainable future for the use of technology in the civil justice system. We need better data to understand the impact that technology has on the administration of justice. We need to ensure that court users participate in testing new innovations. And we need to evaluate online systems to better understand their effects on the real-life resolution of the disputes people come to our virtual and in-person doors to solve.

In Utah, we’re marching forward to take these steps. Pre-pandemic, we were making strides towards digitizing our processes by launching our own online dispute resolution platform for people to resolve small claims cases online. We’ve since subjected this platform to rigorous usability testing by a justice lab, as well as to an external assessment of its accessibility by people with disabilities, and we’re in the process of implementing the recommended changes.

We’ve launched an online case management system that, in addition to allowing people without lawyers to electronically file their documents, provides a digital platform for them to easily access and manage nearly all their court-related affairs.

These are good first steps, but many more are needed. For as we envision a world beyond the pandemic, we must also envision a court system that is more efficient, fair and open for all.

Deno Himonas | Utah Supreme Court

Deno Himonas is a justice of the Utah Supreme Court.