Court Record Data Access and Non-Profit Innovators Can Help Close the Justice Gap
on Topics: Case Research | Future Law | Perspectives
Addressing the access to justice gap in state courts across the United States requires better access to court data to fully diagnose the challenges unrepresented and low-income litigants face and develop adequate technology tools and processes to solve those challenges.
To shine a spotlight on how court data can be used to uncover issues in state courts and also bring about real legislative and regulatory reform, UniCourt is featuring a three-part series of guest posts from Claire Johnson Raba, Clinical Teaching Fellow at the University of California, Irvine School of Law Consumer Law Clinic, on her work in this space.
In Claire’s first guest post, Court Data Access Drives Legislative Change: A Story From California, she shared how court record data has already helped move the needle to bring about impactful legislative change in California state courts and noted several other instances where better access to court data court further improve how low-income people interact with the justice system.
To give a closer look at how court data can help with diagnosing and closing the justice gap, in Claire’s second post, Court Record Data Shows Enduring Harm from Private Student Loan Default Judgments, she shared findings from her report, Co-opting California Courts: How Private Creditors Have Turned the Judiciary into a Predatory Student Debt Collection Machine, showing that private student loan debt collection disproportionately burdens borrowers of color, how private student loan borrowers fare comparatively poor in court, and certain steps California should take to address these ongoing issues.
The last post in Claire’s three-part series focuses on how the State Bar of California’s decision to delay the creation of a regulatory sandbox presents a great opportunity “for California courts and the State Bar to reform the collection of court record data so that courts – and the Closing the Justice Gap Working Group – can have a data-driven understanding of service gaps in how unrepresented and low-income litigants engage with court systems.” Through better collection of court record data and actively encouraging and seeking out the participation of legal aid technology developers, non-profit companies, and law school technology application developers, Claire argues that the resulting legal tech tools will “lead to measurably better outcomes for litigants than court users who go it alone or with traditional self-help materials.”
Court Record Data Access and Non-Profit Innovators Can Help Close the Justice Gap
What if your phone could provide an app that would help you understand and handle your eviction case, debt collection lawsuit, divorce, or small claims case in state court without a lawyer?
Would you be more confident using an online tool or referring a low- or moderate-income client or friend if the tool had been created with input by your local legal aid office? What if you could be assured that the legal technology tool is available in multiple languages? Would you be more likely to rely on legal technology tools if you could know that the apps had been tested and had a proven track record?
The value of accessible court case record data cannot be overstated for users and developers of legal technology tools. Court record data allows developers of legal technology solutions to establish a baseline to understand and address unmet need for unbundled legal services and provides legal technology developers the ability to evaluate the efficacy of their digital tools. A data-driven approach to bringing digital services to legal services delivery allows courts and regulatory bodies to make informed decisions about legal technology and ensure consumer protection.
In California, as in many other states, a lack of easily accessible court record data impedes the development and testing of legal technology solutions to help low- and moderate-income self-represented litigants, standing in the way of courts, legislators, and oversight agencies’ ability to evaluate and understand the value of legal technology.
Following the lead of Utah, California has been exploring the possibility of establishing a legal regulatory sandbox, which would allow legal technology tools to provide legal advice and assistance to litigants without an attorney-client relationship between the provider of services and the litigant. Current California State Bar rules regulating the practice of law prohibit non-attorneys from providing legal advice and legal services, and this includes legal advice provided by a legal technology application.
In response to a letter from the chairs of the California Senate and Assembly Judiciary Committees, the California State Bar recently put on hold its exploration of a regulatory sandbox. Rather than viewing pushback by legislators as a nail in the coffin of innovation for legal technology solutions, the State Bar should take this opportunity to improve access to court record data and to affirmatively reach out to not-for-profit legal technology solutions providers, as well as legal aid offices and law schools engaged in building tech-based and mobile-friendly ways to close the justice gap.
The goal of the California State Bar’s Closing the Justice Gap Working Group, in approving a sandbox working group in May of 2020, has been to explore new and innovative ways to help people who cannot afford an attorney. California’s regulatory sandbox project would follow projects to change the licensing of lawyers in other states, such as Arizona, which has approved alternative business structures that allow non-lawyers to have an ownership stake in companies that provide legal services and has approved the licensing of non-lawyer paraprofessionals, non-attorneys who can appear in court in limited matters.
California’s exploratory committee was considering a regulatory sandbox that might have been modeled after the one in Utah. Utah’s regulatory sandbox, launched as a two-year project in August 2020, has been extended to seven years, with entrants into the market including well-known names in legal technology and document automation such as Rocket Lawyer and Hello Divorce.
This pause in the work of the Closing the Justice Gap Working Group provides the State Bar an opportunity for California to engage in affirmative and intentional gathering of court record data and to reach out to non-profit organizations, legal aid offices, and law school clinics involved in the development of technology tools. Prior to this pause, California’s Closing the Justice Gap Working Group was actively considering whether to open the regulatory sandbox to legal technology companies that target all users of the court system, regardless of income, or only to allow new technology solutions that specifically target low-income litigants. Focusing on data collection and affirmatively encouraging the involvement of law school clinics and legal aid organizations in the development of new legal technology tools would alleviate some of the concerns raised by the chairs of the Senate and Assembly Judiciary Committees by emphasizing legal aid and not-for-profit legal technology solutions providers that target the needs of low-income litigants.
Moreover, a delay in launching a regulatory sandbox is an opportunity for California courts and the State Bar to reform the collection of court record data so that courts – and the Closing the Justice Gap Working Group – can have a data-driven understanding of service gaps in how unrepresented and low-income litigants engage with court systems. A lack of comprehensive civil court record data in California makes it incredibly difficult to understand the baseline of current case outcomes and to devise measurable solutions. Without knowing the rate of unrepresented litigants in California cases, and with an incomplete understanding of how litigants are engaging with court cases, it is difficult to use empirical research to measure the efficacy of interventions. A lack of court record data has been recognized as a barrier to access to justice by researchers including the Pew Charitable Trusts and the American Academy of Arts & Sciences.
California’s only statewide civil court data collection system, the Judicial Branch Statistical Information System, collects very high-level aggregate data with a view toward judicial efficiency and rate of disposition of cases (“caseload clearance”). In 2017-2018, the Judicial Council’s JBSIS system reports that there were 221,090 unlimited civil cases filed in California and 444,146 limited civil matters – more than twice as many – but limited civil case reporting data does not distinguish among case types and dispositions in a way that allows meaningful use of this data to measure interventions intended to improve access to justice. Limited civil cases in California are almost all debt collection and unlawful detainer matters – comprised of some of the most vulnerable and underserved litigants – but the state data collection system doesn’t collect granular details about these cases and does not even track how many litigants are unrepresented in each category.
Court data access ensures a level playing field, allowing all legal technology developers to ensure that the tools they create lead to measurably better outcomes for litigants than court users who go it alone or with traditional self-help materials. Court data also allows entities like the Closing the Justice Gap Working Group to adequately understand the points of need and intervention and to independently evaluate the impact of legal technology pilot projects.
Ideas to help fix the problems faced by unrepresented litigants vary in their approaches. Some, like JustFix in New York City and the California Tenant Power Toolkit help tenants track unfair actions by landlords and fill out court paperwork on their mobile phones to submit to the court. Others, like Upsolve for consumer debtors looking to file bankruptcy, use videos and cartoons to explain complicated legal processes and fill out paperwork. People Clerk is a California public benefit corporation that helps plaintiffs and defendants present their cases in small claims court with a referral component to legal aid for defendants facing cases based on back rent debt related to the Covid-19 pandemic. All are examples of successful not-for-profit innovators in the legal technology space.
Law school clinics and legal aid offices have direct experience working with low-income consumers and have insight into how their clients engage with legal issues. They also have an existing group of real people, with real legal problems, to include in the conversation about the design of legal technology tools. Centering the voices and concerns of people who must file or defend lawsuits means that the tools that emerge are more likely to meet the needs of the impacted community. This is particularly true for historically disadvantaged and marginalized communities, communities of color, older adults, and litigants with limited English proficiency. These communities are often left out of traditional market research by for-profit companies, but are the communities served by legal aid, law school clinics, and non-profit organizations.
As the State Bar of California considers whether to continue exploring legal technology solutions to close the justice gap, it should take this opportunity to engage in reform in collection of California state civil court record data and gather information from legal aid, non-profit, and law school developers of legal technology projects. Assuming the regulatory sandbox project goes forward, the State Bar should also affirmatively encourage the participation of legal aid technology developers, non-profit companies, and law school technology application developers by setting aside a percentage of the slots in the regulatory sandbox for not-for-profit entrants. A fully market-based solution that requires legal technology developers to pay for their own court record data and marketing closes off opportunity for market adoption of companies that do not have a large research and advertising budget as in a for-profit business model.
Technology alongside traditional legal services provided by lawyers may very well be the way of the future for California litigants. The State Bar has an opportunity at the outset of this regulatory experiment to collect the data needed and ensure that consumers of legal services have equal access to the full range of new and innovative technology solutions.