The Challenges of Change: How Court Managers Can Adapt to the Changing Landscape of Civil Litigation

The American civil justice system is facing a reckoning. There are real concerns today about how civil justice is delivered in the United States. Faith in the system is thinning. Much of the population lacks access to legal services, despite large numbers of unemployed or underemployed lawyers. The “fee-for-service” model supplemented by legal-assistance organizations and voluntary pro bono work is not meeting the public’s need for legal representation. Record numbers of people are now representing themselves, especially in domestic relations courts. At the same time, use of the courts is shrinking in a nation of 328 million people growing 7 percent each year. State court civil caseloads decline every year, down almost 16 percent nationally over a decade.¹ For most civil actions, trials are rare, and jury trials are almost nonexistent. The public is turning away from courts toward other forms of dispute resolution, in particular, online technologies, which are experiencing dramatic growth. The message is clear: For more and more corporations and individuals, courts are the last place parties want to be to solve their legal problems.

These trends are disturbing and have profound implications for society, individuals, organizations, the legal profession, the judiciary, and the courts. What is not debatable is that responding to them should be a top priority for courts. Courts are fundamental to democracy. Courts exist to protect individual rights and provide an impartial forum for the resolution of legal disputes. Courts offer a civil way to address grievances and, in this way, provide stability and social order. What does it say about the effectiveness of courts if people trust them so little they prefer that anyone but the courts shoulder this responsibility? What does it say about the justice system if it is effectively unavailable to all but a few? Unless courts get ahead of these trends and provide better access for their users, they run the risk of failing in their purpose and becoming obsolete. Antiquated courts will face consequences as doubtful taxpayers limit funding for a constitutionally legitimate, but largely irrelevant institution. This article suggests strategies that the judiciary and court managers can use to increase access to justice and restore the public’s confidence in the civil justice system.

Public Opinion

Courts seldom formally seek out the opinions of their users, but the starting point for any honest discussion about the future of the courts must be to ascertain what the public thinks about how well courts are doing their job. The message emerging from public-opinion research is sobering. While courts possess recognized strengths, most importantly procedural fairness, consumers still find them lacking, especially in terms of customer service, performance, and efficiency.

The discontent with the courts boils down to three very large complaints about the judicial process: it is too complex, takes too long, and costs too much. Court leaders should take notice that a system that is incomprehensible to the average adult, delivers justice too late, and causes parties who use it to bear unaffordable or unnecessary expenses cannot survive as is.

Traditional Court Process

To a certain extent, this dissatisfaction stems from the adversarial model of litigation traditionally used by U.S. courts to decide legal disputes. Under the theory that no one will work as hard as opponents to bring forth favorable evidence, the attorney plays the dominant role in the process by gathering information, assembling arguments, and zealously advocating the client’s legal rights and interests using skills, strategy, and tactics. The judge functions as a passive, impartial referee between warring parties, monitoring the rules of engagement, while counsel control the direction and pace of litigation. Cases progress inexorably through the stages of discovery and trial preparation toward the presentation of evidence and argument at the main event, trial. The judge intervenes along the way to make rulings to ensure fundamental fairness but is principally involved at the end when settlement has failed and adjudication is unavoidable.

While this model is widely regarded in the Anglo tradition as the best way to ensure fair and accurate decision making, the rules in an adversarial system designed to ensure a fair process and a fair outcome are extraordinarily complicated. Cases can be won or lost on technical points of pleading and procedure. Procedural arguments often sidetrack the main issues. Understanding the rules in this highly formal environment demands considerable education and training. Those who are conversant with the rules can outmaneuver the inexperienced and engage in legal gamesmanship. A party lacking legal expertise is vulnerable to unfavorable outcomes, even if his or her claims are meritorious.

Other aspects of the adversarial-litigation format can make it harmful to the participants. Fully exercising one’s due-process rights to discovery, to confront and cross-examine adverse witnesses, and to present oral evidence and argument can make the process time-consuming and expensive. The amount of money needed to pursue worthy claims and defenses can outweigh any recovery or payout. The parties’ need to find a solution is minimized by the emphasis on claims, defenses, burdens of proof, judgment finality, looking at the past, and who is “right.” The process is not private. It is invasive, encourages opposition and exaggerated claims, maximizes conflict, and is intimidating and dehumanizing to those unaccustomed to it. It is especially damaging in disputes where relationships that are important to preserve may be destroyed, such as in business, employment, and family disputes. When parties need a prompt outcome so they can move forward with their lives, the system can create more problems.

In these respects, the court is the opposite of what it should be. Faced with hiring counsel and a costly legal battle or navigating the system alone, it is no wonder the public prefers other ways to resolve its disputes with less financial and time strain and is willing to sacrifice some due process and legal rights to get it.

Dispute Resolution

Dispute resolution today is a growth industry, and courts no longer possess a monopoly. People have choices. Familiar alternative dispute resolution (ADR) services that use non-court, third-party intermediaries like mediation, early neutral evaluation, and arbitration are widely available. Hiring a private judge is an option in some jurisdictions. Online dispute resolution (ODR) is proliferating rapidly, and its capabilities are increasing. Pioneered by large companies like eBay to address low-value contractual disagreements relating to the online sale of products and services, ODR communication platforms allow parties to reach resolutions using technology and artificial intelligence (AI). ODR is distinctive in that it allows physically distant parties to connect and exchange information anywhere, at any time, on any device without the time and place limitations of in-person meetings. It supports direct communication between the involved parties but can step up to include a mediator. Filters can promote positive communication by identifying and blocking negative and hostile language that escalate the conflict. ODR has been enormously successful: eBay alone resolves more than 60 million disputes annually, with the overwhelming majority resolved without third-party help. The enthusiasm for ODR rests in its ability to provide opportunities to address real, albeit less momentous, legal problems quickly with little, if any, cost. Without this platform, few of these disputes would find their way to courts. The jurisdictional hurdles of litigating across borders would be prohibitive.

Courts are naturally conservative organizations, and the legal profession is historically resistant to change. Lawyers’ obligations to represent the interests of their clients in a system based on advocacy and courts’ obligations to ensure procedural fairness contribute to the reluctance. Familiar reactions to demand for change are to ignore it or dismiss it as uninformed or a passing phenomenon. Nonetheless, courts should embrace the opportunity to modernize and transform into institutions that are more responsive to the needs of their users. Like it or not, civil courts are competing for business. Litigation, the product courts traditionally offer, is losing market share. If courts are to remain germane, court reform is not an option, it is a necessity.

What Can Court Leaders Do?

Today, the population using the courts has changed, the problems courts address are different, and time and cost are bigger factors for court users. If courts are serious about improving access to justice and the court user’s experience, the court process must become convenient, affordable, efficient, and easy to navigate. What should court leaders do today to address unmet needs and fill in the justice gap? What steps should courts take to promote just, speedy, and inexpensive case dispositions that improve the court user’s experience and satisfy public expectations of court performance? What will ensure the relevance of courts and their place in the modern world?

Simplify. The court system is designed to deliver formal adjudications following full-blown litigation with counsel. The same rules apply to cases where much is at stake and cases that are less consequential. The reality is, most civil cases are low value and will never go to trial. Contrary to expectation, most civil cases are debt collection, landlord/tenant, and small-claims disputes. They are not “big money” personal-injury and commercial lawsuits. They resolve mostly through dismissal or default judgment.² The truth is, many parties represent themselves, especially in the limited-jurisdiction municipal, juvenile, domestic relations, and probate courts where the caseloads concern matters of daily life and involve individuals more than organizations.

Courts should stop treating cases that are not alike the same way. While it may sound heretical, not all cases require the same amount and degree of process. Courts should stop concentrating on preparing for the isolated, special-occasion trial and start devoting their resources to processing the bread-and-butter cases that comprise the volume of their business. Expedited litigation procedures should be available where appropriate. The system, tailored to attorneys, should be retooled for the people who use it. Consider that the average reading level of American adults is seventh to eighth grade.

To get started, courts should closely examine all policies, procedures, rules, forms, entries, website information, notices, language, paperwork, etc., and evaluate them from the standpoint of an interested nonlawyer. Court managers should process-map the steps involved in the disposition of each case type and streamline them after walking the tracks in the shoes of the consumer. As an example, consider how having to physically attend multiple court events affects people who are employed or have no transportation. Consider how a policy of banning cell phones in court facilities negatively affects court users who have no other computer and are unable to fill out forms, access and exchange information, and present evidence. Consider how filling out multiple forms asking for the same information wastes people’s time. Consider how the use of jargon and legalese in docket notations, notices, and court orders obscures content and confuses people. One way to find out if the information being conveyed makes sense is to ask non-attorneys for feedback. What they say may come as a surprise.

Urging courts to simplify is sure to draw criticism as if it somehow compromises the adversarial model and the integrity of the justice system. Nothing is further from the truth. Simplifying is not tantamount to “dumbing down.” Expediting does not mean curtailing due process. Speaking plainly does not diminish importance. Paring down what is excessively complicated only makes it more straightforward. Simplicity is essential to access, and access is essential to due process.

Adopt a customer-friendly focus. This is imperative. The courts must become an accessible, positive place where court users feel welcome and are treated with dignity and respect. Courts must learn how to attend to self-represented parties who are trying to take care of their legal problems as best as they can. While many courts have risen to the challenge, others have eschewed accommodating self-represented parties. Parties who choose to represent themselves, or have no choice but to represent themselves, should not be told repeatedly to get an attorney. This only creates a sense that the system will not give a fair shake to a party without a lawyer. Courts must not look upon self-represented parties as “wannabe lawyers” who ought to go to law school if they want to practice law. Courts should guard against a mindset that “Doctors don’t perform surgery on themselves. We shouldn’t enable parties to handle these cases. All we are doing is setting them up for defeat.” Parties have every right to represent themselves.

Courts should educate staff about the changing responsibilities of courts and challenge them to implement ways to improve the court user’s experience. All court staff should be taught the fundamentals of customer service in the public sector and the importance of access to justice. Though they would like to help, court staff are often hesitant to engage with parties for fear of being accused of the unauthorized practice of law. Training on the difference between legal information (about what one can do) and legal advice (about what one should do) can go far in alleviating this worry. Courts should also encourage staff to devise ways to accommodate other special populations — those with limited financial means, the limited English proficient, the disabled — who find it challenging to access and navigate the courts. It is useful to examine what organizations that are known for exceptional customer service, like Amazon, Disney, or hospitals, do to put customers first. Asking parties about language and handicapped needs upfront, providing extra support like wheelchairs and easy access to restroom facilities, substituting phone conferences for court events, and meeting the parties off-site are ways to accommodate courts users that signal respect and earn appreciation.

Provide comprehensive information about the legal process. The public often does not seek assistance with legal problems because funds are scarce, or they are unaware their problems are legal in nature, much less actionable. Courts must ensure that parties and potential parties have reliable, accurate information about the law and the adjudicatory process. This information should include the law in a specific area such as foreclosure, landlord-tenant, and divorce. It should also cover topics such as the stages of litigation, the basics of civil procedure and evidence, the discovery process, and courtroom procedure. This should be coupled with information about how to obtain service, how to subpoena a witness, how to prepare for a hearing, how to calculate deadlines, and how to appeal a judgment. This information or a reference on where to find it on the court website could be provided to a plaintiff at the time of filing and to the defendant with the summons, in cases where the parties are unrepresented.

Advances in technology have made it possible to deliver this information in ways that the public finds easy to digest. Videos, interactive guides, tutorials, and simulations are overtaking information sheets, brochures, and court websites as the norm for conveying this information, along with telephone helplines, walk-in information desks, and help centers that provide more individualized attention. Videos personalize the court process and are more memorable than written copy. They are especially useful on small-screen mobile devices where display and search functions are difficult to see and can be overlooked. These teaching tools enhance the learning experience and are highly effective ways of helping people understand their issues and identify the best way to go about resolving them. While bar associations and legal-assistance organizations do much to provide this information, courts should strive to be the public’s “go-to” resource, physically and virtually, using every means available.

In the effort to reach the public more effectively, courts and allied groups are developing centralized web portals that can deliver understandable legal information. Portals possess great potential to aid the court user. At a minimum, registered users could navigate through the portal website to identify their legal issue, find information, and be directed to forms and resources. Users could obtain referrals to reputable lawyers, legal services, and third parties who could access the information provided by the user at intake. Conceivably, sophisticated portals could tap databases of reported outcomes for various fact patterns and analyze the user’s legal problem. The system could predict the likely cost of litigation, the likelihood of success, and the expected recovery or outcome, should the user choose to file suit, much in the way that health-information technology today can help diagnose and predict outcomes from a set of symptoms and laboratory data. Portals could also help parties complete fillable forms and e-file them directly with the appropriate court. The portal could interface directly with a court’s case management system, seamlessly linking the user with the court.

Adopt aggressive case management to ensure court events are meaningful. The public’s perception of the court system derives partly from external influences, like media reports, over which courts have no control. What courts can control is the way they manage their individual cases. Parties form their opinion of how well the system works from their own experience in how their case was handled by judges and magistrates. It is troubling that people with direct contact with the courts often come away with worse opinions than those who have not actually experienced “court.”

The parties and the courts benefit when cases on the litigation pathway progress from filing to disposition with as few court events as possible. Courts often set multiple events that accomplish little. Too often, insufficient time is allotted and cases run into one another. Unproductive court dates spent waiting in hallways with nothing to show for it frustrate parties who take off precious time from work and their families and may travel great distances to get to court. Too many calendared events waste people’s time and waste court resources. Each case should be scheduled on the “Goldilocks” principle: “just the right number” of court events should be scheduled in each case with “just the right amount” of time allotted for each event with “just the right period of time” between court events to the extent possible, not more, not less, to make them meaningful. The goal is to balance the parties’ need to gather favorable evidence against their right to a final resolution in a reasonable period. This calls for early court intervention, effective oversight, and continuous judicial control by the judge or magistrate.

Judges and court managers working together should ensure that each case has an appropriate, transparent plan for resolution. Cases should be set promptly, with certain case types taking precedence. The first court event is critically important. This is where the judge or magistrate must “diagnose” the legal problem, assess the depth and breadth of the issues, and put into play the information gathering and services needed to move the case to the next stage. Courts can cut delay and advance the process immensely by taking control of discovery. In particular, courts can proactively establish the substance and scope of the information that parties must exchange, without waiting for counsel and the parties to initiate discovery and engage in motion practice to compel production of sometimes marginally relevant information. Minimum-discovery orders originated by the judge on the court’s motion not only cut delay and rein in runaway costs but also ensure that self-represented parties without legal expertise stand a chance of getting what they need. These orders can be imposed as soon as service is made. Strong case management and more judicial control in individual cases will translate into a better court experience overall for court users and better caseflow performance, that is, aggregate case types flowing through the system efficiently.

The chart below is an example of what a case management plan for marriage-termination cases could look like. Notice it shows the ideal number of court events, the amount of time allotted for each event, the spacing between events, and what must be accomplished at each event for it to be meaningful.

Involve the parties at all court events. The success of any case management plan is communication with counsel and the parties, irrespective of representation. Parties today want to be involved in the process because “it’s their life.” Just as patients are no longer satisfied to let physicians solely decide their course of treatment and want to be informed about treatment options and the pros and cons of treatment, parties want information to help them determine their own course.

Too often, courts assume that parties understand what is happening. Judges and magistrates need to provide explanations and communicate expectations. They should make known what will happen at each court event and confirm the parties are aware of their responsibilities and know what they are supposed to do between court events. They must also explain what will occur if parties do not do what is expected. Asking each side to articulate his or her understanding of what is necessary to make the next court event meaningful can eliminate later frustration and delay. Providing this information is in keeping with the court’s responsibilities and does not compromise neutrality, or the fairness and integrity of the process. It will, however, require more time and hands-on involvement by the judge or magistrate presiding over the case.

Shift to a problem-solving, “do no harm” approach. Approaching cases less legalistically, and more holistically, is consistent with the adversarial framework. The criminal justice system has made great strides in recognizing that therapeutic jurisprudence yields better results and is more efficient in the end than a process-oriented, purely punitive approach. Likewise, the civil justice system should not be unnecessarily harmful to the well-being of participants. Civil courts should strive to satisfy needs and interests, not just evaluate the merits of parties’ positions and issue rulings. Rulings are not necessarily solutions.

A useful approach is for a judge or other court official to speak directly with the parties very early in the case about what is important to each party. This could include typical outcomes and costs and what litigating a case entails emotionally and financially. In this way, the focus is placed on the interests of parties and potential resolutions, rather than concentrating on developing facts for trial through discovery. The point is, the court needs to interface with the parties, not just the attorneys, who sometimes stand in the way of an early resolution.

Collect data on the number of self-represented parties. Most courts do not collect data to document the representational status of parties. Those that do tend to record only the parties’ status at the time of filing or time of disposition. They do not go further to distinguish the extent of representation, that is, whether the representation was limited in scope in jurisdictions that permit unbundled representation.

Keeping basic records of the number of self-represented parties at a moment in time is useful but of limited value. A snapshot of representational status at filing or disposition captures whether the party began or ended the case with a lawyer but tells nothing about whether the party received legal assistance along the way. The National Center for State Courts has developed methodologies and counting rules to help courts collect accurate data on the number of self-represented parties. Representational status is best tracked over time. Courts should look back at the time of disposition to determine whether any party was unrepresented at any time during the life of the case. This is an accurate measure of the burden on courts in handling cases involving self-represented parties.³ Courts should also track the number of event types by case type in which at least one party was self-represented to get a clear picture of when parties get legal assistance. This data could reveal, for instance, that parties tend to seek counsel right before trial, or just to get a case started. Courts can use these patterns to identify pressure points and help provide the assistance needed at those stages. This information can be invaluable in backing up budget requests to funding authorities for new and existing programs.

Gather information from all court users. At a minimum, courts should regularly conduct surveys of court users using CourTools Measure 1: Access and Fairness for baseline data on perceptions of fairness and interpersonal treatment.⁴ Court users include everyone doing business with the court: parties in active cases, attorneys, witnesses, jurors, website visitors, and people obtaining court records. To gain a more granular understanding of what would improve user experience, surveys that are more comprehensive can be developed and focus groups conducted. These can distill what court users, who have completed their court business, found helpful and harmful during the proceedings. The information can be useful not only in guiding the retooling of processes, but also in getting feedback about court facilities.

Integrate court processes into online dispute resolution services. Courts are moving in the direction of ODR as the optimal way to deliver services. Simplifying the conventional court process is vital, but courts must also find new ways of delivering justice online as part of their regular business, just as other industries have done. As a case in point, online education and virtual classrooms were once considered futuristic; today, they acceptably complement education delivered traditionally in the classroom.

Court-facilitated ODR presents many possibilities. ODR processes can provide information, facilitate communication, and perform adjudication, which has been described as the stages of dispute avoidance, dispute containment, and dispute resolution.⁵ As an example of how this might work, a party needing help with a legal problem could go online and answer questions through an automated intake procedure that uses skip logic to identify the nature of the dispute and define the issues. The system would inform the party of his or her legal rights, the applicable law, and options about how to handle the problem. Parties wishing to take their dispute to the next level could begin negotiation. The technology would put disputing parties in touch with one another and provide a digital space for communication. If needed, an online court facilitator would be available to help narrow issues and reach an agreement. Facilitation could be in the form of mediation, early neutral evaluation, or judicially moderated settlement. Failing settlement, the parties could submit information and make arguments, and an online judge would decide the case on the merits.

Just as e-filing replicates physically delivering and filing papers with a court, ODR replicates real-life court processes in a digital environment. Anything that can be done in a courtroom can be accomplished electronically. Parties can negotiate, write and sign agreements, and submit them online. In cases formally adjudicated online, the parties can exchange information during discovery and upload documents to the court’s case management system. The uploaded documents would constitute the evidence upon which a formal decision would be made.

While loaded with potential, “online court” poses many challenges. Courts will have to overcome issues relating to personal jurisdiction and evaluate the types of proceedings and the complexity levels of cases appropriate for ODR. Courts must also determine whether ODR adjudication processes must be consensual or can be mandated and whether an ODR adjudication is binding, that is, whether a party has a right to further engage in traditional litigation or must go straight to appeal. Courts will have to choose which processes they are comfortable offering online. Those courts that have gone paperless and are at ease with e-filing and dynamic workflow may find transitioning to ODR less of a challenge. Most importantly, courts must determine how to deliver online services without abridging due process, and without creating a perception that online resolution is less than real justice. At a minimum, parties must be informed of their rights to procedural-due-process safeguards to ensure that any waiver is knowing and voluntary. As AI moves into the justice system, it is also essential that courts be vigilant to ensure that computer algorithms are transparent, and that predictive analysis remains only a tool and does not usurp judicial decision making.

Measure performance. Too often courts do not avail themselves of enough data in their management decision making. They do not study the data available, or worse, do not even collect it. When making change intended to be transformative, it is more important than ever that courts test and evaluate whether the process improvements they have made succeeded and were, in fact, beneficial. This is a continuous effort. Courts should measure whether the changes made improve efficiency and whether the public is responding positively. The CourTools Measures provide a framework upon which courts can evaluate their progress.

Conclusion

Courts today are facing uncertainty about their future. The public is increasingly turning away from the justice system because the judicial process is too slow, too complicated, and too expensive to be a practical option to resolve legal problems. These barriers are shutting out large numbers of people who lack financial resources or effective legal assistance. Lack of meaningful access to the courts and the public’s doubts about the court system’s ability to provide timely justice in an efficient, customer-oriented way has led to a preference for nonjudicial entities to resolve legal problems, rather than the courts.

To keep pace with changing times, courts must immediately begin implementing strategies to improve access to the judicial system and regain their lead as the dispute resolution venue of choice. Courts can make access convenient, affordable, and efficient by modernizing their practices in the way cases are conventionally processed. Courts can also innovate by using technology to deliver services remotely, which is poised to become the standard in justice delivery.

The current problems with the justice system have been years in the making. Making change will not move the needle overnight. By being flexible and reinventing the way courts do business, courts can increase customer satisfaction, expand access to justice, and ensure continued relevance and legitimacy in a changing environment.

About the Author

Serpil Ergun is the executive director of judicial operations at the Cuyahoga County Domestic Relations Court in Cleveland, Ohio, one of the largest trial courts in the state. She has over 32 years of experience as an administrator, chief magistrate, and judicial officer, deciding pre- and post-decree parenting, support, interstate parentage, and property-division matters. Ergun holds nationally recognized certifications as a court manager and court executive from the National Center for State Courts and is a Fellow of NCSC’s Institute for Court Management.

Notes

1. Court Statistics Project, Examining the Work of State Courts (Williamsburg, VA: National Center for State Courts, 2016).
2. Paula Hannaford-Agor, Scott E. Graves, and Shelley Spacek Miller, “The Landscape of Civil Litigation in State Courts,” paper, Civil Justice Initiative, National Center for State Courts, Williamsburg, Virginia, October 1, 2015.
3. “Developing Standardized Definitions and Counting Rules for Cases with Self-Represented Litigants: Final Report,” National Center for State Courts, Williamsburg, Virginia, December 19, 2013.
4. CourTools: Trial Court Performance Measures (Williamsburg, VA: National Center for State Courts, 2005).
5. “Online Dispute Resolution for Low Value Civil Claims,” report, Online Dispute Resolution Advisory Group, United Kingdom, February 2015.