McMillan on E-Filing Systems for Self-Represented Litigants

James E. McMillan of the National Center for State Courts has posted E-Filing Must Support the Self-Represented, Court Technology Bulletin, 8 September 2011.

This is the latest post in Mr. McMillan’s series, Eight Rules of E-Filing.

In this post, Mr. McMillan argues that e-filing systems implemented by courts in which large numbers of self-represented litigants appear must be designed for use by those litigants. Mr. McMillan then describes a number of court technologies that that enable self-represented litigants to file litigation papers online.

For more information, please see the complete post.

Goyal on Technology, Access to Justice, and MyLegalBriefcase

Monica Goyal, J.D., M.Sc., of MyLegalBriefcase gave a presentation on technology, access to justice, and MyLegalBriefcase at the “Startups in the Law” panel at NELIC 2011: The New and Emerging Legal Infrastructures Conference, held 15 April 2011 at the University of California, Berkeley School of Law, Boalt Hall, in Berkeley, California, USA.

In her presentation, Ms. Goyal discusses MyLegalBriefcase, an innovative interactive online service that provides customized forms and procedural instructions for self-represented litigants in Small Claims Court Ontario.

In the discussion following the presentation, Ms. Goyal discusses several topics, including legal education reform, ways to improve access to justice, and issues facing legal technology entrepreneurs.

New on VoxPopuLII: Reiling on IT and the Access to Justice Crisis

Judge Dory Reiling, mag. iur., Ph.D., Vice President of the Amsterdam District Court, has posted IT and the Access to Justice Crisis, on the VoxPopuLII Blog, published by the Legal Information Institute at Cornell University Law School.

In her post — which is based on a chapter in her recent book entitled Technology for Justice: How Information Technology Can Support Judicial Reform — Judge Reiling discusses what we currently know about citizens’ information needs and behavior respecting access to civil justice. Judge Reiling describes the information that citizens need to resolve disputes outside of the legal system — whether without a third party or via alternative dispute resolution (ADR) — as well as the information they need in order to proceed pro se via the civil justice system. Judge Reiling then discusses how technology can be used to encourage dispute resolution outside of formal legal proceedings, as well as to improve outcomes for self-represented litigants in the civil justice system.

Judge Reiling’s post should be of particular interest to the access to justice / pro bono community, court administrators, alternative dispute resolution professionals, developers of judicial and access-to-justice information systems, and to those who provide or seek to improve legal information services to the public.

Hackerson, Access to Justice Starts in the Library: The Importance of Competent Research Skills and Free/Low-Cost Research Resources

Deborah K. Hackerson, J.D., M.S.L.I.S., of the University of St. Thomas Law Library, has published Access to Justice Starts in the Library: The Importance of Competent Research Skills and Free/Low-Cost Research Resources, 62 Maine Law Review 473-486 (2010) (Issue No. 2). Here is a summary:

The first part of this Article examines the need to support lawyers and law students in the development of competent and cost-effective legal research skills so that they enter the legal profession ready to represent all types of clients. This includes having the skills necessary to perform pro bono and public service work. It is imperative that law schools continue to develop a curriculum to increase these practical skills for lawyers of today. The second part of the Article discusses the importance of the continued development of free and low-cost resources that will support law students, lawyers, and the general public in performing cost-effective legal research. Access to justice includes access to information. It is an important mission for the legal profession to ensure that everyone has access to justice
through continued access to information.

De la Cueva on Law Practice as a Net Practice

Video and slides are available of the presentation by Javier de la Cueva of derecho-internet.org, entitled “Law Practice as a Net Practice”, given 1 July 2010 at the Seminar with Yochai Benkler about The Wealth of Networks, at the Medialab-Prado, in Madrid, Spain.

Mr. de la Cueva addresses three topics in his presentation:

• Procedimientos libres = Free Proceedings;
• Ontología Jurídica Libre = Free Legal Ontology; and
• move-commons.

Pro Se Assistance Tool Being Developed at Universiteit Twente & Universiteit van Tilburg

A new online service designed to help self-represented individuals decide whether to pursue litigation, is being developed by Dr. Ellen Giebels and colleagues at the Universiteit Twente Research Centre for Conflict, Risk and Safety Perception (iCRiSP), and researchers at the Universiteit van Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems (TISCO), according to an announcement on the blog of Jurix, The Foundation for Legal Knowledge Based Systems, and a press release from Universiteit Twente.

According to the press release, the new application will address consumer law and divorce, and may later also address employment law. The system is intended to help pro ses assess their likelihood of success should they pursue legal remedies.

A noteworthy aspect of the project is the cooperation of psychology researchers, lawyers, alternative dispute resolution experts, and computer scientists from the very beginning of the project, to ensure that issues respecting users’ attributes as well as legal and ADR substantive and procedural issues, are addressed in the system from the start.

This project accords with a number of other recent efforts to develop online tools to assist self-represented individuals, including A2J Author — developed by CALI, The Center for Computer-Assisted Legal Instruction, and the Chicago-Kent College of Law’s Center for Access to Justice and Technology — and its implementation in the U.S. federal courts, E Pro Se.

For more information please see the Jurix post and the press release.

Staudt on A2J Author: Technology that Attacks Barriers to Access to Justice

Professor Ronald W. Staudt of the Illinois Institute of Technology Chicago-Kent College of Law, has published All the Wild Possibilities: Technology that Attacks Barriers to Access to Justice, forthcoming in Loyola of Los Angeles Law Review. Here is the abstract:

Predicting how technology will affect the future of the legal profession is difficult and unreliable work. I have made my share of such predictions in the past thirty years, including foretelling the death of the paper casebook in law schools and vast improvements in law practice that would be triggered by computers and document assembly software. Neither of these two prophesies has yet been fulfilled. Yet a real success story has emerged based in part on my persistent optimism that technology can improve the delivery of legal services. A2J Author, a modest software tool that allows lawyers to build guided Internet interviews for prospective clients, has been adopted across the United States and in several foreign countries as an interface for public access to legal processes. This Article describes the origin of A2J Author as a collaboration by courts, legal aid agencies, and funding sources. The Article explores the combination of factors that produced this technology, which successfully attacks barriers to access to justice. Finally, the Article speculates on whether A2J Author can begin to transform the delivery of legal aid and government services to low income people.

[Update 11 February 2010: A2J Author was co-developed by "The Center for Access to Justice & Technology (CAJT), [and] the Center for Computer-Assisted Legal Instruction (CALI).” HT @johnpmayer.]

Felker: Demonstration Project of Interoperability between UC Digital Law Libraries and Legal Clinical Training Opportunities based in California County Law Libraries

Christopher D. Felker, Esq., of the University of California, Berkeley School of Law, Boalt Hall, has posted Demonstration Project of Interoperability between UC Digital Law Libraries and Legal Clinical Training Opportunities based in California County Law Libraries (Dec. 2009). Here is the abstract:

David A. Greenbaum, then Director, Interactive University Project, UC Berkeley provided the Andrew W. Mellon Foundation with a report of work undertaken by UC Berkeley, Indiana University, Stanford University, and the UC California Digital Library to plan a demonstration project of digital library and educational technology interoperability.

The work on which that report was based was conducted from August to September 2004 with the generous support of a $12,000 Officer’s Grant.

This proposal revisits some of the core concepts outlined in that preliminary work and suggests a demonstration project wherein a UC-based digital law library partners with an existing County Law Library to offer legal clinical education and training. For discussion purposes only, the present proposal posits a relationship between the Hugh and Hazel Darling Law Library at UCLA Law and the LA Law Library. In reality, productive public university – public agency partnerships could be formed at any UC Law School (UC Berkeley – Alameda County; UC Irvine – Orange County; UC Hastings – San Francisco County; UC Davis – Yolo / Sacramento County). The fullest realization would be to leverage a common digital library platform to offer clinical training on ‘retail’ level legal problems which many patrons of the county law library must confront on a pro se footing (bankruptcy, foreclosure, divorce separation in both marital and domestic partnership arrangements and the formation of sole proprietorship or limited liability businesses).

Effectively Assisting Pro Se Bankruptcy Filers: Course Materials

Full text of the program materials are now available from a October 18, 2009 joint continuing legal education program entitled Effectively Assisting Pro Se [Bankruptcy] Filers: A View from the Bench, cosponsored by the National Conference of Bankruptcy Judges and the ABA Section of Business Law Business Bankruptcy Committee. The materials contain useful information about legal ethics, legal information, and legal communication issues concerning self-represented debtors in U.S. consumer bankruptcy cases.

The program participants were:

• The Honorable Judith H. Wimur, Chief Judge of the United States Bankruptcy Court for the District of New Jersey;
• The Honorable Eileen W. Hollowell of the United States Bankruptcy Court for the District of Arizona;
• The Honorable Elizabeth S. Stong of the United States Bankruptcy Court for the Eastern District of New York;
• Mary Fox, Pro Se Bankruptcy Law Clerk for the United States Bankruptcy Court for the Eastern District of New York; and
• Professor Angela K. Littwin of the University of Texas School of Law.

The materials include the following:

• Administrative Office of the United States Courts, Bankruptcy Judges Advisory Group, Assisting Pro Se Parties in Bankruptcy Cases (May 28, 2008);
• John M. Greacan, “No Legal Advice from Court Personnel”: What Does that Mean?, Judges Journal, Winter 1995, at 10;
• Judicial Neutrality vs. Judicial Engagement;
• Angela Littwin, An Empirical Examination of Pro Se Filers After Bankruptcy Reform (n.d.);
• Pro Se Filing Statistics by Quarters During the Twelve-Month Period Ending December 31, 2008;
• Pro Se Filing Statistics from Bankruptcy Districts in the Ninth Circuit, 1999-2008;
• Mary Fox, Materials Utilized by the Pro Se Law Clerk in the Eastern District of New York.

California Courts’ Family Law Task Force Focuses on Legal Information & Communication Issues

Legal information and communication issues lie at the center of a number of recent U.S. civil justice reform efforts, including
the joint project of the American College of Trial Lawyers (ACTL) Task Force on Discovery and Civil Justice and the Institute for the Advancement of the American Legal System at the University of Denver (IAALS), and the reform projects of the U.S. Federal Judicial Center and the U.S. Court of Appeals for the Seventh Circuit.

To these should be added the initiative to reform procedure in California’s family courts.

The Elkins Family Law Task Force was appointed in 2008 to make recommendations for reforming evidence rules and access to legal representation and information in California state family court proceedings. As explained in the Task Force’s Draft Recommendations report, since the mid-1970s, in response to a flood of cases, many of which involve one or more pro se litigants, California trial courts have adopted local rules restricting, and in some instance eliminating, litigants’ right to call witnesses to testify in person in family court proceedings. In Elkins v. Superior Court, 41 Cal.4th 1337, 163 P.3d 160 (Cal. 2007), the California Supreme Court held that such rules adopted by one California trial court were inconsistent with existing California law. The Court also urged the Judicial Council of California to “establish a task force to ‘study and propose measures to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings and to ensure access to justice for litigants, many of whom are self-represented.’” The Elkins Task Force was subsequently named.

The Task Force identified five major problems respecting civil justice in California family courts:

• Local rules that prohibit live testimony in court proceedings;
• Huge caseloads;
• Large numbers of pro se litigants;
• Drawn out litigation; and
• Great numbers of unresolved cases.

Among the numerous recommendations offered by the Task Force to address these problems, many concern the following legal information or legal communication issues (listed in alphabetical order; click on the name of an issue to see a summary of the recommendations concerning that issue):

• Caseflow Management;
• Code of Family Law Procedure;
• Courts’ Internal Data Collection and Assessment Processes;
• Court Transparency & Accountability;
• Evidence and Discovery;
• Forms;
• Judges’ Education;
• Information Technology;
• Language Barriers;
• Legal Representation;
• Minors’ Communication in Family Court Proceedings;
• Pro Se Litigants’ Access to Information;
• Public Education & Involvement in Family Courts.

Caseflow Management:

• Create a formal caseflow management system with frequent, automated checkpoints and time standards;
• Allow judges on their own initative to actively “control the manner and pace of the litigation . . . includ[ing by means of] establishing discovery schedules and cut-off dates, setting dates for exchange of expert witness information, and other pretrial orders”;
• Let judges “work with [litigants] to develop case management plans” which “may include early neutral case evaluation, alternative dispute resolution, a discovery plan or limitations on discovery, use of telephone conferences, the appropriate waiver of requirements of procedural statutes, jointly selected or court-appointed expert witnesses, bifurcation of issues for trials, and allocation and awarding of attorney fees and costs”
• Have court “staff [regularly] review [case] files to ensure that all documents are in order and inform the court if information is missing or incomplete. . . . Staff could provide notes to the judicial officer as well as public notes, which . . . may be made available on the court’s Web site for access by the parties, attorneys, and self-help center staff”;
• Use “dedicated calendars such as a self-represented litigant calendar, default calendar, work search calendar, and contempt calendar to enhance services to the public.”

Click here to return to the list of issues.

Code of Family Law Procedure:

• Revise family law procedural rules to make them more intelligible, by:
• Creating a set of uniform statewide family law procedural rules, that covers all procedural matters arising in family law cases;
• Codifying those rules in a text that also incorporates all relevant civil rules;
• Abolishing all local rules and courtroom-specific rules not required by law; and
• Writing the revised rules “in plain language” and “organiz[ing them] logically.”

Click here to return to the list of issues.

Courts’ Internal Data Collection and Assessment Processes:

• A California family courts “research agenda” should be implemented, and should feature:
• Uniform statewide statistical reporting;
• Workload studies;
• Performance measures;
• Surveys of litigants;
• Assessment of the “effectiveness and replicability” of court services;
• Assessment of the “usability or readability” of forms;
• “Review of research and best practices from other jurisdictions;” and
• “[A] self-assessment tool to ensure that local rules and procedures are in compliance with state law and rules.”

Click here to return to the list of issues.

Court Transparency & Accountability:

• Create a “mechanism for litigants and the public to submit complaints related to court-based services. The complaint process should include issues of access and procedural fairness;”
• “Creat[e] a public information program to educate the public on the services available, court’s limitations, and options for resolving their complaints;”
• Create “a court ombudsman position to receive and investigate complaints and make recommendations to court leadership for improvement.”

Click here to return to the list of issues.

Evidence and Discovery:

• Change local rules to generally require courts to allow live witnesses in family court proceedings;
• Implement the recommended caseflow management system, which includes the authority to work with parties to create “discovery plan[s] or limitations on discovery”;
• Equip “family law courtrooms … with appropriate technology and other accommodations to facilitate the presentation of evidence and production of other needed documents…. For example, courtrooms should have wireless Internet access and sufficient power outlets for attorneys and litigants to plug in laptops, printers, and projectors”;
• Provide pro se litigants with instruction and materials on evidence rules;
• Allow children to participate meaningfully in family law proceedings, including where appropriate by giving live testimony;
• Increase sanctions for perjury;
• In child custody cases:
• Increase and standardize the information provided to the court;
• Ensure that such information is provided to all parties;
• Give parties the opportunity to respond to all information provided to the court;
• Afford to parties the opportunity to cross-examine those who provide information to the court.

Click here to return to the list of issues.

Forms:

• Review and revise family court forms to ensure that they “[are] easy to use, allow parties to provide critical information requested by the court, and [are] readily accessible”;
• Simplify complex forms;
• Provide templates for declarations and agreements;
• In the new California family courts “research agenda,” include the assessment of the “usability or readability” of forms;
• Identify effective local forms, and modify them for statewide use.

Click here to return to the list of issues.

Judges’ Education:

• Include in education for family court judges better information and instruction respecting:
• Children’s needs and circumstances;
• “[E]mpirical evidence of the effect of the court on the lives of children and families”;
• The use of court interpreters;
• Writing enforceable orders;
• Dealing with pro se litigants;
• Civil procedure;
• Pretrial attorneys’ fee awards;
• Limited-scope legal representation;
• The role of minors’ counsel;
• Leadership in family courts;
• Collaborative family court approaches.

Click here to return to the list of issues.

Information Technology:

• Automate the “checkpoints” in the new caseflow management system, including the sending of electronic and telephonic notices and reminders to litigants;
• Furnish self-help centers for pro se litigants with “the appropriate equipment and technology to facilitate service delivery,” including “computer workstations for staff use that include access to electronic court records; copy and fax machines; and long-distance telephone access”;
• Make “[i]nformation [offered to litigants about their procedural rights in family law cases] … available online, and [present it] in a variety of ways, such as informational handouts, flowcharts and checklists, a legal resource guide, and videos, audiotape, and multimedia presentations”;
• Provide for telephone conferences in caseflow management plans;
• “Offer an e-filing and/or fax filing option” in family court proceedings;
• Configure “[c]omputers in the courthouses, law libraries, and public libraries … to handle e-filing and fax filing”;
• “[P]rovide an opportunity for parties to review a recording of family law proceedings for a designated period of time”;
• Equip “family law courtrooms … with appropriate technology and other accommodations to facilitate the presentation of evidence and production of other needed documents…. For example, courtrooms should have wireless Internet access and sufficient power outlets for attorneys and litigants to plug in laptops, printers, and projectors”;
• Require staff reviewing case files for completeness to provide public notes about needed information, which “may be made available on the court’s Web site for access by the parties, attorneys, and self-help center staff.”

Click here to return to the list of issues.

Language Barriers:

• Expand availability of court interpreters;
• Train judges in the proper use of court interpreters;
• Make the new litigant orientation information and public information packages available in multiple languages.

Click here to return to the list of issues.

Legal Representation:

• Allow pretrial awards of attorneys’ fees to enable pro se litigants to pay for counsel;
• Expand the provision of unbundled and limited-scope legal services;
• Respecting minor children’s counsel:
• Restrict their communications to those permitted to be made by counsel for adults in an ordinary civil proceeding;
• Prohibit them from determining whether the minor child has capacity to form a preference respecting custody; and
• Require them to express to the court the minor child’s desire respecting custody.

Click here to return to the list of issues.

Minors’ Communication in Family Court Proceedings:

• Permit minor children to participate meaningfully in family law proceedings, including where appropriate by giving live testimony;
• Respecting minor children’s counsel:
• Restrict their communications to those permitted to be made by counsel for adults in an ordinary civil proceeding;
• Prohibit them from determining whether the minor child has capacity to form a preference respecting custody; and
• Require them to express to the court the minor child’s desire respecting custody.

Click here to return to the list of issues.

Pro Se Litigants’ Access to Information:

• Expand pro se self-help services to include instruction and materials on evidence;
• Furnish self-help centers for pro se litigants with “the appropriate equipment and technology to facilitate service delivery, including …:
• [L]egal research materials such as rules, codes, and practice guides;
• [C]omputer workstations for staff use that include access to electronic court records;
• [C]opy and fax machines; and
• [L]ong-distance telephone access.”
• Create a new uniform, statewide family court procedural code, written “in plain language and organized logically”;
• Amend family law statutes and procedural rules to substitute the plain-language term “parenting time” for the legal terms “custody” and “visitation”;
• Create a new package of orientation information that furnishes litigants “with information about their procedural rights in family law cases.” The package should have the following features:
• It should include “information about legal resources including brochures from the State Bar, free or low-cost legal clinics, legal services, and county bar lawyer referral panels”;
• It should include “information about limited scope representation;
• It should include “information about options such as mediation and collaborative law”;
• It “should be uniform statewide, made available online, and offered in a variety of languages,” and
• “It should be presented in a variety of ways, such as informational handouts, flowcharts and checklists, a legal resource guide, and videos, audiotape, and multimedia presentations.”
• Throughout the case, provide litigants with additional legal information, especially concerning mediation, settlement, and evidence rules;
• Provide litigants with instruction about the enforcement of orders;
• Provide pro se litigants with instruction about the difficulties of proceeding pro se and about circumstances that may require consulting a professional;
• Tailor all pro se instruction and information to the circumstances of particular litigants.

Click here to return to the list of issues.

Public Education & Involvement in Family Courts:

• “[D]evelop a public information program to educate the public about the availability and benefits of court services, particularly prefiling services. [C]reate core content that is applicable statewide, leaving local courts flexibility to tailor the materials to the specific needs of their communities”;
• Make these public information “[m]aterials … available in a variety of formats, including text and visual, to accommodate different learning styles among the court user population. Materials should be available in multiple languages”;
• “[E]stablish local committees to focus primarily on ways to improve family and juvenile justice. These committees would be standing committees appointed by the presiding judges (court, family, juvenile) and composed of a broad cross-section of community stakeholders.”

Click here to return to the list of issues.

These recommendations suggest many areas of fruitful inquiry for legal informatics and communication research.