New Report Shows ‘Road Map’ for Court Change with Tech and Procedure
While focused on longer-term application, report offers guidance for COVID world

by Avery Martinez

The Institute for the Advancement of the American Legal System and the National Center for State Courts released a new report April 28, “Transforming Our Civil Justice System for the 21st Century: The Road to Civil Justice Reform.” The two groups worked  on the project jointly for three years, according to a news release from IAALS.

“Americans deserve a civil legal process that can fairly and promptly resolve disputes for everyone — rich or poor, individuals or businesses, in matters large or small. Yet our civil justice system often fails to meet this standard. Runaway costs, delays, and complexity are undermining public confidence and denying people the justice they seek. This has to change,” the related report “Call to Action: Achieving Civil Justice for All” reads.

Brittany Kauffman, senior director at IAALS said the four states covered in The Road to Civil Justice Reform report — Texas, Missouri, Maine and Idaho — contributed the momentum for reform which is now being seen across the country. “Their efforts, and the lessons learned, can help guide and inspire other courts that are implementing longer term reforms — but they are just as relevant and critical for courts dealing with changes being forced upon them by the pandemic.”

Courts are operating under challenging circumstances and tight time frames because of the coronavirus pandemic, and “while reform takes time, the need for change has accelerated,” the release states. “The experiences of the states in [The Road to Civil Justice Reform] report, and their utilization of our roadmap for implementation — a set of seven clear steps for courts to follow when implementing change — can provide invaluable guidance to other courts.”

“The impetus for the CJI Committee and this Report is twofold,” the Call to Action report states. State courts are “well aware” of cost, delay and unpredictability of civil litigation,  and strained court budgets have “hampered our ability to promptly and efficiently resolve cases.”

A handful of state court leaders took concrete steps toward change, according to the Call to Action report. “They are updating court rules and procedures, using technology to empower litigants and court staff, and rethinking longstanding orthodoxies about the process for resolving civil cases. Several states, including Arizona, Colorado, New Hampshire, Minnesota, and Utah, have changed their civil rules and procedures to require mandatory disclosure of relevant documents, to curb excessive discovery, and to streamline the process for resolving discovery disputes and other routine motions.”

The Road to Civil Justice Reform report covers the implementing of change in courts across four states. The reform efforts came after the 2016 Conference of Chief Justices’ Civil Justice Improvements Committee guidelines to ensure “just, prompt, and cost-effective resolution of civil cases in state courts,” according to the release. Each state was provided with guidance and tools to support successful implementation, and then interviews of those involved, with support from IAALS, NCSC and the State Justice Institute.

“The key now is prioritization and clear timelines for change — some of which must happen immediately and others that can be staged. But, most importantly, states should build off the reforms, research, and experiences of other states,” Kauffman said, adding it is equally important to build on what is known about managing change.

As the civil courts are operating now, the people “who enter the system confront a maze-like process that costs too much and takes too long,” the Call to Action report states. Three-quarters of judgments amount to less than $5,200, but the litigation costs usually “greatly exceeds that amount,” according to the report. “Small, uncomplicated matters that make up the overwhelming majority of cases can take years to resolve. Fearing the process is futile, many give up on pursuing justice altogether.”

The Call to Action report also notes how private entities are stepping in, such as private judges for hire, arbitration and online legal services “which often do not require an attorney to navigate.” The recommendations point to steps state courts can take immediately, and over the months and years to follow, to make the civil justice system more affordable, accessible and fair, according to the Call to Action report. They’re crafted to work across local legal cultures and overcome financial and operational “roadblocks to change.”

“Restoring public confidence means rethinking how our courts work in fundamental ways,” the Call to Action report states, adding that citizens be the center of the system, and must be heard, respected and capable of getting just results, in theory and “everyday practice.”  In this way, courts must accept new technology and procedures, and “must give each matter the resources it needs — no more, no less — and prudently shepherd the cases our system faces now.”

Providing a key framework for reform that states can follow, The Road to Civil Justice Reform report covers leadership, assessment and definition of issues, engagement of stakeholders to gain input, development of vision and goals for reform, clear recommendations and action, according to the release.

From the pilot states, The Road to Civil Justice Reform report highlights key factors for successful reform such as using an evidence-based approach, engagement with stakeholders — both of which are “essential” — and leadership not only being “from the top down,” according to the release. “States must look to the data and other available information to inform decisions, priorities and timelines.”

According to the Call to Action report, court leaders must move promptly to improve case flow management in order to control costs, reduce delays and ensure fairness for litigants, the report states. They must also embrace tools and methods which align with modern civil dockets realities. In that sense, the recommendations of the report present a broad range of practices each state can embrace to fit legal cultures and resources locally.

One aspect made clear, according to the Call to Action report, is state courts cannot continue to use comfortable methods to administer justice in millions of pending civil cases. The report quotes Justice William J. Brennan’s address to the Section of Judicial Administration of the American Bar Association in 1958, “We like comfortable old shoes out of style and worn through as they may be and dread having a new pair…. None of us like to learn new ways of doing things (but) the convulsive change in society confronts our profession with the urgent challenge to get our house in order if we are to renew the public’s confidence in the American Justice system that safeguards and protects individual rights and liberties.”

“Strong leadership and bold action are needed to transform our system for the 21st century,” the Call to Action report states. “With concerted action, we can realize the promise of civil justice for all.”