The coronavirus pandemic has been a time of national reckonings—about the perils of political polarization, a health care system that serves some more than others, and America’s unfinished project of civil rights. But a further reckoning is soon to play out, not in the nation’s hospitals, but in our courts. Here, Professor David Freeman Engstrom and Chief Justice Bridget Mary McCormack of the Michigan Supreme Court expand on an op-ed they recently published about COVID-19’s challenge to our civil justice system.
How should we be thinking about post-COVID courts?
As with so much else in American life, COVID-19 delivered a gut punch to the justice system. Courthouses were shuttered, cases suspended, and trials postponed. But the truth is our courts were already in crisis—underfunded, increasingly politicized, and behind the curve technologically. Our courts are also shockingly unprepared to meet the justice needs of ordinary Americans, who get little help in as many as 85 percent of their legal problems.
The challenge we face here is the same challenge we face across so many other institutions. We must contend with the pandemic and minimize suffering. But longer-term thinking is also in order. The question we should be asking is not merely how to safely reopen our courts this summer or fall. We should also ask how the post-pandemic justice system will look different—and how it might even emerge from the current crisis better than before.
How have courts handled the COVID-19 crisis to this point?
Since March, judges have, like their health care counterparts, performed triage. In many cases, the wheels of justice skidded to a halt. But in essential and emergency cases, judges found ways to keep the wheels turning. They entered restraining orders protecting domestic violence victims, made child protection determinations, and held bail hearings to avoid unnecessary detentions in infected jails. This meant measures not so different from your grocery store: plexiglass, socially distanced lines, lots of Purell. In a creative few it meant holding court outside on courthouse steps or in repurposed school gyms.
Most important of all, triage has meant digitization. Many courts, long resistant to it, mandated e-filing of pleadings and papers. And many courts embraced remote proceedings by telephone or videoconference. The headline-grabbing version of this was the Supreme Court’s use of telephonic arguments—including a toilet flush (likely Justice Breyer, journalistic sleuthing found) that provided a rare moment of COVID-19 levity. But the digital transition has been more thorough, and important, in lower-profile courthouses around the nation.
Are we out of the woods?
Not at all. If there is a consistent report from the front lines, it is that the worst is still to come. A tsunami is heading toward our courts—the result of a perfect storm of three factors.
First is a surge in cases reflecting the failing finances and fraying relationships of the shutdown. During the Great Recession a decade ago, civil filings in state trial courts leapt by 1.5 million cases, or 20 percent. Consumer credit cases, evictions, foreclosures, and domestic relations cases all increased substantially. In the federal courts, bankruptcies doubled, adding another 700,000 cases.
That’s millions of new cases. But the docket spikes will be sharper this time because COVID-19’s social and economic ravages have been, by nearly any measure, more ferocious. Worse, when COVID-19 hit, American households were already carrying $2 trillion more in debt than in 2007-2008.
Second, the surge of COVID-19 fallout cases will hit as the bill comes due on suspended cases and as the moratoria on foreclosures, evictions, and repossession of property—imposed by Congress in the CARES Act and in many states—lift or expire this summer.
Third, the case surge will come when the courts and the organizations that help Americans navigate them are diminished. Courts suffer budget hits with the rest of government. Law firm austerity measures mean fewer lawyers willing to represent the worst-off among us. And legal aid organizations will see their funding nose-dive.
What will be the most immediate change to our courts?
No question here: remote proceedings. But change won’t come where some might think. The press is obsessed with Zoom jury trials, but trials have mostly vanished from the system. Today roughly 1 in 50 cases reach trial, most before a judge alone rather than a jury. Instead, the bulk of court work comes in smaller-scale proceedings—arraignments, motions practice, and pre-trial hearings in cases that will soon settle.
Conducting these hearings via Zoom or telephonically still saves money. Fewer comings and goings save millions in court staff and security. Attorneys bill for travel time to courthouses and depositions. Remote proceedings can increase access to justice by making legal services more affordable. And some courts, including in Michigan, are streaming their proceedings online, increasing transparency, too.
Our normally hidebound courts are moving online with surprising speed. Michigan’s courts have featured a remarkable 500,000 hours of Zoom hearings since the lockdown started. State courts are also unveiling innovative programs in an effort to meet the case surge. Among these are “diversion” programs for evictions and other high-volume cases that couple remote proceedings with new pre-hearing dispute resolution options and connect litigants to payment-assistance programs.
But there are also limits. The Sixth Amendment’s requirement of a “public trial” and the right to confront witnesses—both designed to ensure rigorous testing of evidence—puts much of criminal adjudication, including key parts of trial, off limits to digitization.
Civil proceedings face fewer legal barriers, but lasting change will require something harder: a shift in legal culture. Lawyers are trained (and paid) to be handwringers and to catalog reasons not to do things. That worldview is often helpful—but it can hinder our ability to experiment and try new things. Viewed this way, COVID-19’s greatest power to change the system may be a softening of inertial forces. Judges, lawyers, and court staff have now paid the same “switching costs” as so many others: they’ve mastered Zoom, invested in laptops and webcams, and now know how to hide wearing sweatpants to work. They won’t unlearn their new digital skillsets.
You noted that longer-term thinking is in order. What would that look like?
The pandemic will accelerate two powerful tectonic shifts—both already in motion when COVID-19 hit—with the potential to make the system better and worse.
First is the erosion of the professional monopoly that lawyers currently enjoy and the minting of new legally trained paraprofessionals to address justice needs. In recent years, access to justice advocates have built a searing critique around a stunning statistic: Though American law is full of paeans to adversarialism—the clash of well-prepared lawyers in court—the grim reality is that, in 75 percent of the millions of civil cases filed annually, one side is pro se and so doesn’t have a lawyer at all.
Momentum was building even before COVID-19 to address this embarrassment by changing state rules that impose criminal penalties on anyone who, without a license (i.e., a state bar membership), engages in “unauthorized” law practice. Relaxing these restrictions will make room for non-lawyer specialists, akin to specialized nurse practitioners, who can be licensed to handle specific matters, such as those involving landlords and tenants matters or personal bankruptcy filings.
There are concerns. Some worry about a marketization (or Walmart-ization) of law that deregulation might bring. But a growing body of evidence from abroad and a select few U.S. states that are piloting reforms concludes that nonlawyer professionals are as good as or better than lawyers in the routine litigation areas that will see COVID-19-related upticks. Bar associations won’t like it, but we should expand these reform efforts.
The second tectonic shift is the adoption of new technologies, many fueled by artificial intelligence, to perform legal work. Tech predictions can seem overblown in an age of hand-waving references to “black box” AI systems. But COVID-19 came on the heels of a giant advance in natural language processing, the branch of machine learning that holds the most promise in a legal system built on words.
“Legal tech” can already perform one of the costliest of litigation tasks better and cheaper than lawyers alone: flagging documents to decide which, among millions of possibilities, must be turned over to the other side. Other tools produce something even more valuable in litigation: information. Some tools help lawyers perform legal research, predict case outcomes, or even decide which arguments to lay before this judge. Others, though far fewer, help those proceeding pro se: online legal advice via chatbot; apps such as TurboTax and Rocket Lawyer that help the lawyerless complete legal documents, from taxes to divorces; and online dispute resolution platforms that substitute for court. Legal tech was already coming on strong—and, as with any automation, will gain steam in a broken economy as everyone tries to do more with less.
As we think about our post-COVID-19 courts, the big question is whether technology will widen or narrow the gap between “haves” and “have nots.” Legal tech, some say, can widen access to justice by reducing the cost of legal services. A gloomier view is that it will exacerbate existing disparities. There’s already evidence that the best legal tech tools will come from BigLaw firms, with their privileged access to client data and the resources to build internal technical capacity.
Bleakest of all is the very real possibility that legal tech will make it easier for employers, creditors, and landlords to bring cases against employees, debtors, and tenants—not the other way around. Think back to revelations about use of robo-approaches in mortgage foreclosures and consumer credit disputes after the 2007-2008 crash—or, as a more recent illustration, the emergence of apps such as ClickNotices, a “delinquency management solution” for landlords.
What should be done?
This is an all-hands-on-deck moment for the legal system.
First and foremost, judges, rulemakers, and legislators will have to adapt rules to assimilate new professionals and new technologies into the system. Bar associations, for their part, must drop their reflexive opposition to nonlawyers of both the human and machine sort and engage in an evidence-based debate about when lawyers add value and when they don’t.
Law schools, including SLS, must also get to work. We must better train our graduates to use technology to serve the disadvantaged. Law schools must also break out of the mold of preparing lawyers to provide bespoke, highly customized advice to individual clients and instead aspire to graduate a new kind of hybrid professional lawyer. Project and process management, design thinking, and data science will be at the core of lawyers’ professional identity going forward, and law schools must teach those skills.
Finally, engineers can work with lawyers to design new legal technologies—and offset the fact that venture financing and BigLaw’s own growing technical capacity is largely geared toward litigation’s “haves.”
Saying all of this requires respect for the suffering COVID-19 has caused. Calls to reimagine institutions can seem facile and flippant in the middle of a crisis. Winston Churchill’s “Never let a good crisis go to waste” comes to mind. But we cannot afford to lose momentum toward remedying institutional failures with real human costs and real potential for improvement. No one, not even lawyers with a good-faith commitment to the view that only they can protect rule of law, should want that to happen.
David Freeman Engstrom is Professor of Law, Associate Dean for Strategic Initiatives, and the Bernard D. Bergreen Faculty Scholar. He is a scholar of the design and implementation of litigation and regulatory regimes whose expertise runs to civil procedure, administrative law, federal courts, constitutional law, legal history, and empirical legal studies. Bridget Mary McCormack is Chief Justice of the Michigan Supreme Court.