SLS Professor David Freeman Engstrom, JD ’02

The coronavirus has brought numerous national reckonings—about the perils of political polarization, a diminished public sector, and America’s unfinished project of civil rights. But there is a further reckoning that will soon play out, not in hospitals, but in our courts: our legal system’s declining capacity to provide justice to everyday Americans. That reckoning will begin in the coming months as courthouses reopen and our courts fill with cases reflecting the failing finances and fraying relationships of our sheltered-in-place lives. How we face this reckoning—with business as usual, or with new thinking about who can provide legal services and new technologies that assist in that work—will not merely determine the inclusiveness of the recovery and return to prosperity we hope can follow. It will also help chart the future of our justice system.

None of this is to slight the challenges judges faced down as
COVID-19 spread. At first, the wheels of justice skidded to a halt. But in cases raising safety concerns, judges, like their healthcare counterparts, conducted triage operations.They entered restraining orders protecting domestic violence victims and held bail hearings to avoid unnecessary detentions in infected jails. As courts crept back to life, the system’s normally hidebound judges also embraced technology like never before. Michigan courts had by July hosted an astounding 500,000 hours of Zoom proceedings during the lockdown.

This triage story paints an inspiring portrait of innovation and grit. Triage’s technological turn even provided comic relief: a juror who walked away from a Zoom trial to answer his cellphone, a toilet flush during the Supreme Court’s first-ever telephonic arguments. But if there is a consistent theme from the front lines, it is this: The worst is yet to come.

The Great Recession from a decade ago provides some numbers. After the 2007–2008 crash, state court civil filings spiked by 1.5 million cases—a whopping 20 percent. Most were contract cases, especially landlord-tenant, creditor-debtor, and home foreclosure disputes. Federal personal bankruptcy filings doubled—from roughly 750,000 to 1.5 million. That’s already millions of new cases. But the spikes will be sharper this time because COVID-19’s ravages have been more brutal. Worse, the crush of cases will come when our courts and the other institutions that help everyday Americans navigate them—from legal aid to pro bono practice—are weakened.

What to do? A good start is to make permanent the best of recent triage efforts, including remote proceedings and innovative diversion programs that help resolve landlord-tenant and other pressing cases without live hearings.

There are, to be sure, limits to moving online. The Confrontation Clause puts key parts of criminal adjudication off limits to digitization. Civil proceedings face fewer barriers, but there is work to do. Rule wrinkles abound, including the “open courts” provisions that dot constitutions, statutes, and rules. Amendments must also grapple with the fact that not all litigants have webcams or stable Wi-Fi. We shouldn’t open courthouse doors wider only to relegate some to the basement.

But two more powerful tectonic shifts, both already in motion when COVID-19 hit, are accelerating and have the potential to reshape the legal system in good ways and bad.

“Rethinking our courts will be a team effort. Judges and legislatures must work together to expand the best triage ideas and make technology upgrades even amidst  belt-tightening. Rulemakers must work to assimilate nonlawyer providers and blunt the effects of unequal access to technology.”

David Freeman Engstrom

JD ’02, Professor of Law, Associate Dean for Strategic Initiatives, and Bernard D. Bergreen Faculty Scholar

The first is the erosion of lawyers’ professional monopoly and the welcoming of new paraprofessionals, akin to specialized nurse practitioners, into court. Pressure was mounting pre-COVID to loosen rules prohibiting “unauthorized” law practice to mitigate the stunning fact that, in three-quarters of the millions of state court civil cases filed each year, one side is pro se and so doesn’t have a lawyer at all.

The dam may finally be breaking. A growing body of research finds that nonlawyer professionals are as good as or better in the types of high-volume cases likely to see upticks: housing cases, personal bankruptcies, and restraining orders in domestic violence cases. And, just last month, Utah and Arizona announced new rules allowing nonlawyer “legal technicians” into the fold. California may not be far behind. Bar associations will continue to fight them, but these reforms should continue and expand.

The second tectonic shift is the adoption of new legal technologies, many fueled by artificial intelligence. “Legal tech” already helps lawyers decide which documents to produce, predict case outcomes, and select which arguments to lay before a judge. Others—legal advice chatbots; apps that assemble legal documents; and online dispute resolution platforms—help the unrepresented.

The big question is whether legal tech will empower “haves” or “have nots.” Some see it as a force-multiplier that will allow smaller firms to battle larger, corporate-facing ones. Legal tech can also, like remote hearings, boost access to justice by reducing costs. The darker view is that new technologies will replicate current disparities or, worse, make it easier for employers, creditors, and landlords to litigate against employees, debtors, and tenants, not the other way around. Witness use of robo-approaches in home foreclosures and consumer credit disputes after the Great Recession—or, a more recent example, ClickNotices, a “delinquency management solution” for landlords.

Rethinking our courts will be a team effort. Judges and legislatures must work together to expand the best triage ideas and make technology upgrades even amidst belt-tightening. Rulemakers must work to assimilate nonlawyer providers and blunt the effects of unequal access to technology. Bar associations must drop their reflexive opposition to any change to the status quo and engage in a fair-minded, data-based debate about when lawyers are needed and when not. And law schools, including Stanford Law, must better train their graduates—including new non-lawyer legal professionals—to use technology on behalf of the worst-off.

This won’t happen all at once. Change will come over years, not months. Once vaccines are fully available, the hard work will continue without the reformist propulsion of sickness and death. But even once the worst is past, the urgent challenge will remain: What good, if anything, can we make out of the coronavirus crisis?  SL

David Freeman Engstrom is professor of law, associate dean for strategic initiatives, and Bernard D. Bergreen Faculty Scholar at SLS. He was recently appointed by the California State Bar to the Closing the Justice Gap Working Group.