The phrase ‘transforming civil justice’ has become accepted as covering the digitalisation of courts. It is frequently used in many jurisdictions, particularly the US and England and Wales. Here, it provided the banner under which digitalisation reforms were advanced first by ministers and then by Her Majesty’s Courts and Tribunals Service (HMCTS). In the US, it has figured in a recent report entitled ‘Perspectives on Transforming Civil Justice in the United States’, published in January not by a government department but by the prestigious, if oddly named, Norc (once the National Opinion Research Centre) at the University of Chicago. The two approaches make for interesting comparison.
Cross-national examination of similar-looking developments can be treacherous. The UK and the US are, famously, divided by a common language and by very different judicial landscapes – despite a common heritage. In addition, there is all the difference in the world between a government report and one from an external source – even where it is a prestigious as the Norc. This worked previously on the ‘justice gap’ which it notes in this report as ‘considerable’. As a result, it is probably viewed as hiding a bunch of dangerous lefties by some of those responsible for US court budgets and resource allocation. However, this research was funded by a couple of prestigious foundations, one of which was the Pew Charitable Trust. It was based on interviews with a ‘a sample of national civil justice leaders’, peer-reviewed and ‘grey literature’ (I had to look this up – it was defined by the Fourth International Conference on Grey Literature as ‘That which is produced on all levels of government, academics, business and industry in print and electronic formats, but which is not controlled by commercial publishers.’) In other words, various forms of samizdat and non-official communication- probably including covertly – to the disdain of government – the analysis of its known critics.
There are, of course, major differences between the federal jurisdiction of the United States and the unitary one of England and Wales. In addition, the effective absence of much publicly funded legal aid is new over here but historically well established in the United States. As a result, the US has more experience of addressing the problem of self-represented litigants. On the other hand, we do not have their stringent rules forbidding non-lawyers to practice law. We don’t either have the problem of court control of expunging criminal records – our Rehabilitation of Offenders legislation makes this automatic. And a previous difference has been minimised: many of the cases that are heard in US courts, like those on employment, are here diverted to tribunals. This has become less significant with the merger of court and tribunal administration and the impending digitalisation of both.
A comparison of the principles of the domestic court programme and the US commentary is instructive.
This is one-time Justice Minister Sir Oliver Heald, then Solicitor-General and now Brexit casualty, on the three principles behind our policy: it is to be:
- Just: decisions and outcomes are fair, the judiciary are supported by processes that are modern, transparent and consistent, and like cases are treated alike. A strong judiciary and meritocratic legal professions draw on the widest available pool of talents, to maintain public confidence and strengthen the rule of law.
- Proportionate: the cost, speed, complexity, and degree of adversarial protection make sense and are appropriate to the nature and value of the dispute at issue. An effective system will save people time and money, and shrink the impact of legal proceedings on their lives.
- Accessible: the system is affordable, intelligible and available for use by all, convenient for those who cannot easily attend in person, and supportive of those not comfortable with the law or technology.
These are given perspective by Norc’s five alternatives:
Organized around people seeking civil legal help and support, like self-represented litigants, rather than lawyers, legal systems, or courts
Aimed at preventing systemic problems at the root of civil complaints by holding wrongdoers and unjust laws and systems to account
Organized as a continuum of services so people can access appropriate resources when they need them
Leveraging technology to improve efficient access to justice
Evidence-based rather than demand- or resource-driven
The difference is telling. You might argue that the Americans should explicitly follow the Brits in a commitment to accessibility and justice. But, the notion of a person-centred scheme designed to make wrong-doers accountable, where court services are co-ordinated with assistance and reform data-driven does highlight desirable elements missing from the more narrow English departmental approach.
And this difference appears even greater as we move from principle to implementation. Here is the US report on assistance to self-represented litigants:
Effective self-help tools guide SRLs [self-represented litigants or litigants in person] through their legal proceedings. Digital self-help tools are available to help individuals with legal tasks and have the potential to help overcome financial, psychological, informational, and physical barriers to civil justice. Mobile applications (apps) can provide assistance ranging from general legal information to help with completing legal processes . … Online guided forms walk users through the process of filing legal documents … Do-it-yourself online solutions help individuals navigate a particular legal issue without the help of an attorney … In addition, attorneys commonly use document assembly tools in legal services organizations, which helps the organizations save time and helps attorneys handle more cases per year. LawHelp Interactive is an online, guided interview and document assembly tool that helps users nationwide create their own legal documents for free. It has helped create over 5 million legal documents since 2005 in the areas of child support and custody, domestic violence, debt collection, foreclosure, and more. In addition, remote self-help services like telephone and internet-based technologies (e.g., email, chat, text) can assist SRLs in rural areas where limited mobility, lack of transportation, and other factors may impede in-person access.
The American document is emphasising that courts and tribunals cannot be considered in isolation from the overall assistance given to self-represented litigants. The attempt to do so is to perpetuate a vision of the court structure which depends on adversarial representation which, given the demise of legal aid, is now only available to those with not inconsiderable resources in both countries. Enlightened observers among the Americans have long recognised this: our domestic government has, as yet, refused to acknowledge how far the legal aid cuts have gone and how transformed has become the paradigm of justice.
On one issue, the two approaches should have taken common ground. Who could deny the importance of data or evidence driven reform? Well, HMCTS is still stalling on creating systems with adequate data capture and has fobbed off demands for access to justice criteria with the answer that these will be ready when the modernisation programme is over in 2023. It is likely that the US contains courts that are, on the one hand, exemplars of using data-driven approaches and others which are horror shows. But, on the principle, Norc must be on the button.
If you are a Brit with a moment to spare (after all, you are increasingly likely to be reading this at home seeking to escape coronavirus with no-one looking over your shoulder) it is worth clicking the link to the US document. Even if you are employed by the Ministry of Justice and paid publicly to support its approach, you might secretly find you can learn much from the US experience.