Self-Represented Litigants and Judicial Accountability: Katherine Alteneder in Conversation

Katherine Alteneder is the Consulting Senior Strategic Adviser (effectively the CEO) of the Self-Represented Litigants Network in the United States. Its mission is to connect ‘lawyers, judges and allied professionals who are creating innovative and evidence-based solutions so that self-represented litigants have meaningful access to the courts and get the legal help they need.’ 

What was your background before you moved to SRLN?

I grew up in the North East of the US and moved to Alaska for the adventure and marital harmony. My husband is a chemical engineer and the bottom line is that there’s no oil in Vermont and no mountains in Houston. It was the only place in the US we could agree on to live. I started as a trial court law clerk in the Matanuska Valley, home of Sarah Palin. It was during that clerkship that I realised access to justice lived in family law cases – people were self-represented and the outcomes had a huge impact on the lives of parents, children, and communities. 

I then worked for Alaska Legal Services for a few of years. I started in 1997 when cutbacks meant that most of the attorneys had quit or been fired. I picked my office furniture out a heap left in what was effectively a gutted office. I acted conventionally as a lawyer in a few cases but demand was overwhelming and I soon realised I had to find a way to serve more clients. By the time I left, I had a flock of clients who were representing themselves in court while I served as a coach, advisor, ghost writer, and negotiator. 

When I saw an advertisement to set-up a self-help centre for the Alaska Court System, I jumped at the chance to create a systems based approach to serving the public. I was very influenced by one of the pioneers and advocates of telephone legal hotlines – Wayne Moore who developed them for the AARP (American Association of Retired Persons).  I started the self-help center well before widespread public adoption of computers and the internet. Nevertheless, the plan was to combine the phone, computer, and internet to serve a state with less than a million people who were mostly connected by boats and planes living across what would be 4 times zones if assigned. The job interview for the first cohort of non-attorney staff included a question of whether they could use a computer mouse. But Alaskans are resourceful and the state quickly embraced the model.

As I was designing the system, I visited a number of self-help centres in California (one of the very few states providing court based self-help at that time). We also invested an entire year listing to Alaskans talk to us on the helpline about their legal problems. From that learning, I was able to design the webpage, forms, and other services in a way that was responsive to the people’s needs. A user centered design approach in today’s language. To ensure the public had access to computers, printers, and our helpline while at the court, we applied for and were awarded one of the early Legal Services Corporation’s TIG grants to put work stations in all of the Superior Courts around the state. In an effort to build a continuum of legal services from self-help to unbundled to full-representation, I worked extensively on building up unbundling in Alaska.

I eventually left the court to start an unbundled practice. It was very rewarding to immerse myself in this next stage in the continuum that puts people first. While at the court, I had helped establish an Unbundled Section of the Bar Association, which enabled the court self-help centre to use the list of section members as a neutral referral list. My private practice took full advantage of this natural pipeline for referrals and complementary free self-help services for my clients. Court self-help and private lawyer unbundling make a powerful combination for clients and profitable one for lawyers.

How did you come to join the Self Represented Litigants Network?

The Network was an enormous resource for me when I was at the Court, and I continued to be active after I moved to private practice. Initially, it was a project within the National Centre for State Courts designed to address the growing problems for courts of self-represented litigants. It was primarily a network of organizations and their leaders. When Richard Zorza [whose father was the English Guardian journalist Victor Zorza] needed to retire from running it, I was honoured to be able to step in and moved to the DC area to become the Executive Director. In 2013, we received our first operational funding from the Public Welfare Foundation –previously we had received only project based funding. That allowed my post to be full time, whereas Richard and others had mostly volunteered their time to keep the Network going. 

How has the Network developed?

By the time I became the Executive Director, the Network’s success meant that individuals in the field also wanted to be directly involved. Therefore we opened up the organisation for everyone, and grew from about 100 people to the more than 2,500 individuals from all states and 13 countries who participate today. The reports that we produced in the beginning were not enough by themselves. We started to focus on developing leadership and helping courts, legal aid, the private bar, and justice system related professionals to adopt the innovations that are necessary to fully serve the public. 

Today we have a broad membership that includes more than 30 different constituencies. We have court representatives from top to bottom  – appellate justices, trial judges, court administrators, court clerks, law librarians, and self help staff. The same goes for legal services community. We are making slow inroads with the private bar. Technology is an essential tool in delivering access to justice, and we are particularly excited by what we are learning in our new JusticeTech Entrepreneurs Working Group. We also have funders, researchers and educationalists. We work to inspire leadership up and down these levels and across groups. We know that in the private sector the best performers inspire their staff to contribute: they empower their work force to make things better. We try to bring this ethos to the access to justice field. For courts, which have a rigid command and control management approach, this is a challenge. The self-help centres are where we mostly find the empowered staff.

We are also careful analysts of the sector and spend a lot of time watching where we might make a difference, and provide commentary when and where we think it might move the conversation forward in better serving the public. The network members are its strength. We still have only two full time staff plus one part time. 

My biggest marker for success is participation, because we know if we get people engaged, access to colleagues, and give them actionable ideas, change will happen on the ground.  When Covid hit, we decided to stand up twice weekly calls that were each attended by 70-100 people representing nearly every state. We have a strong culture of people listening, learning, and sharing, which meant that everyone was prepared to help one another problem solve.

Of particular urgency was the need for courts to shift to remote services. Thanks to our rapid response network, one of the early concrete successes was helping to make the connections so that remote call centres could be stood up quickly. In one weekend, the help we provided meant a state put up an unlimited voip (voice over internet protocol) call centre that not only addressed its immediate need to respond in the pandemic, but also meant that they now have the capacity to build out their program with as many staff and volunteers as they can recruit without worrying about the limitations of their phone system. These calls also served as an early warning system for problems such as self-represented litigants running out of data and minutes on their phones while waiting to participate in Zoom hearings. The information sharing on these calls had fed the many practice protocols being published today. Here is the outline of the calls and topics covered.

How is Covid 19 impacting on the courts?

Covid has laid bare the deep inequalities in our country, especially with respect to the legacy of slavery and systemic racism, and the mindset that goes with that. The question now is how can courts be accountable to their communities. This has massive implications that align with what SRLN has advocated for since the beginning: serving the public must be the first priority of the courts. To do this, we must learn what people need and want and then create public accountability measures for the courts. We believe in making courts better.

In addition to our network, we have been working to encourage a multi-stakeholder approach to improving access to justice through a partnership with the National Centre for State Courts and its Justice for All Initiative. We are particularly proud of our contribution to advance a component framework to help states as they build strategic action plans. The initiative has funded significant grants in 14 states to develop comprehensive and systemic approaches to improving justice, and sharing the lessons learned for all state’s to benefit from.

Covid, however, came out of the blue and before the justice sector stakeholders were able to build much of the resilience that is the promise of JFA. The courts were given an unscheduled stress test and failed. Self help services are my particular concern. What we saw in the first few weeks was that courts shut down but many self help services continued because these are programs grounded in adaptability and customer responsiveness and innovation. They simply got on their phones and home computers and kept answering questions. In many instances, the core operations of the courts ground to a halt. I honestly couldn’t believe that the courts tech infrastructure was that frail. Performance varied around the US. With some coming to a screeching halt, while others such as Minnesota and Colorado had people working at home within a week. Some states like Alaska and Utah were accustomed to remote hearings and procedures. Texas just jumped right in with Zoom: however, its system got infected by ransomware fairly quickly because there was inadequate protection. But for the most part, the courts really struggled. Decades of underfunding meant that they did not have the technological infrastructure for people to work at home, nor did they have the systems in place to provide remote services to the public. 

Currently, eviction cases are becoming one of the most pressing problems in America’s civil courts because the moratoria on possession have led to major backlogs. Because of the widespread job loss, it is estimated that 20 million people are in jeopardy of being evicted when the moratoria lift. In locations where evictions are proceeding, courts are dealing with these differently. In Columbus, Ohio, the court rented a large conference centre and organised a whole day of hearings. A legal aid lawyer was quoted in the paper saying it was actually better. There was a lot of space. They had rooms to meet with clients. They were able to spread people out. In Tulsa, Oklahoma, the courts also moved the proceedings to a different facility to handle the increased volume, and in doing that set multiple hearings throughout the day rather than one enormous mass calendar. One of the unanticipated positive impacts of this was that legal aid could represent more clients because the cases were spread throughout the day.

However, eviction by phone is raising huge concerns. Calls tend to drop. People are being evicted because they are alleged not to be  present when they are but it is the technology that has failed. When Texas went to Zoom hearings, it turned out that many people had only limited minutes on their phones and often they were not enough. 

I believe in building a system that puts people first, and therefore I believe that people should be able to choose the modality of the hearing. Being forced onto a Zoom call is impossible in the conditions in which many people live, and can easily become more prejudicial than probative. 

How can digital hearings preserve public accessibility?

There is an issue about open justice. Some courts are using YouTube to stream and, in some instances, keeping the recordings up for anyone to see. Once your voice and image have been put on the internet, not only is your privacy invaded, but you are susceptible to fraud or other harms.  I am deeply concerned about this. The notion of privacy is difficult and means something different today than it did pre-internet. We have never publicly video-taped the courts, yet for some reason courts sua sponte decided this was ok. In Alaska, remote hearings have been a way of life for decades; you could call in and listen to proceedings but not see them. The record was preserved as an audio recording and available to the public. In fact, many jurisdictions preserve the record only through audio digital recordings and documents, and other jurisdictions have nothing but the documents filed in a case as the record. Traditionally, courts often destroy exhibits when cases were archived. This system was never seen as problematic and no one ever suggested we should be creating video recordings to have “moving pictures” of everything that went on in court. But now, without any considered analysis by stakeholders, courts are putting people’s images on the net. This is putting people at risk in the digital world. 

If you can listen, that seems sufficiently open. You don’t need video. The real purpose of the principle of open justice is to hold the court accountable, not to shame people or make them vulnerable to predatory behavior. And this is also connected to the data issue.. If we have enough data on what courts are doing, this is another route to accountability. 

How important is data on what and how the courts are doing?

Crucial. We have very little. In terms of recommendations of best practice, put a red line through best. We know only practice. Demands for best practice often turn out to be well-intentioned insider ideas. But we haven’t asked people themselves or evaluated alternative options and impact. 

We need demographic information on litigants – education, race, age, gender and so on. I think the courts are wrong not to collect that, or to find a reliable mechanism to get that data. We also need to identify data points at all the key points in the litigation process. We need to find what people experience as the sticky points. We are so far from understanding what we should collect. This information can be used for simplification of process and law. We should look, for example, at how many points of contact are necessary to get through a case. Too many and it shows something is wrong. 

How should things change?

For me, innovation in the court context does not necessarily mean inventing anything inherently new. It means looking at what is out there and putting things together in a new and better way. The public should own the law not lawyers. This is very much the moment for a big reset of the courts. Covid pushed everyone to deal with physical courts. Black Lives Matter has made us to look at power imbalances. We need to look at both.

We need a change in how the public solve their own problems within the legal framework. In the modern age, so much has to be resolved in this way. For matters like family, housing, probate and so on, hearing people’s voice has got to be the critical part of the necessary redesign. There is an analogy with the Protestant Reformation. Consider the courts are the church and the lawyers are the priests. Self-represented litigants are the Lutherans arguing for a direct relationship with the ultimate Power. We should be looking for disintermediation and people’s direct relationship with power/the law – with lawyers as a value add rather than required gatekeepers. In the US, it is also worth noting that we are in the midst of great turmoil of whether to allow non-lawyer experts act as essential helpers to the public.  

If we could invest time and effort, I think we would find that a lot of things could leave the fully formal proceedings of the courts and we could give people options of how to reach fair and just resolutions. Domestic abuse might need adversarial proceedings, but there are many other things that do not. When the neighbourhood painter does not do a good job for the money, it is transactional, revealing not so much a power imbalance but requiring resolution of a deal, with a number. When we give individuals empowered choices, they should be allowed to select the rule of law mechanism to get just result. If I feel OK with an ODR system, that is OK. But if I want the full court option, I should have it. 

Judges and lawyers don’t trust people to say what they want, but the people do in fact know what they want. We need to recognize that we need to empower people, but to do that, we also need to build trust between the courts and the public. Stay tuned.

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