The Commission to Reimagine the Future of New York’s Courts recently issued “New York Courts’ Response to the Pandemic: Observations, Perspectives, and Recommendations,” a report summarizing the challenges and opportunities associated with remote court operations. This Commission was created in June 2020 as the court system navigated the impact of the COVID-19 pandemic and its implications for the future.
The Commission’s Pandemic Practices Working Group wrote and published the new report. According to the court’s website, the working group was established to “study and make recommendations that improve the delivery and quality of justice services, facilitate access to justice, and better equip the New York Courts to keep pace with society’s rapidly evolving changes and challenges.”
The report provides details on both criminal and civil proceedings during the pandemic when the courts 1) suspended matters considered “non-essential” and 2) made proceedings virtual through the use of the video conferencing tool Skype and then Teams.
Below are highlights for those working in civil legal aid and with unrepresented litigants.
How did the working group seek input from court system users?
The working group collected information and insights from over 300 stakeholders, including court staff, judges, union leaders, legal aid organization staff, bar associations, private practitioners, and government staff, to present the fourteen (14) recommendations outlined in the report. Those interested in providing feedback to the working group had three ways of doing so:
- At one of the three (3) full-day public hearings held between June and November 2022 in Albany, Buffalo, and New York City;
- At one of the thirty (30) remote listening sessions held by the working group; or
- By written testimony.
During one of these hearings, Wantee Ramkaran, Pro Bono Net’s New York Justice Initiatives Program Manager, talked about how New Yorkers accessed legal help information during the pandemic through several of our tools. For example, our team saw increased usage of LiveHelp, an online real-time chat assistance program for LawHelpNY.org visitors seeking legal information. Chats increased between 40% to 75% weekly when the Governor of New York State ordered people to stay home in late March 2020. In February 2020 alone, there were about 200 chats per week, and by May 2020, there were about 400 chats per week.
What were some of the challenges of virtual civil proceedings?
- Litigants were often left to figure out virtual proceedings on their own due to insufficient remote guidance from the court. There was no centralized “help desk” accessible to court users, meaning litigants had to rely on individual court clerks and other staff, who had varying degrees of technical knowledge. This differed from in-person interactions when a litigant could ask questions about their proceeding to court staff.
- In some cases, elderly litigants were averse to virtual proceedings and preferred to conduct court business in person despite having access to technology.
- For domestic violence survivors, having to appear virtually from home could be unsafe because of the presence of an abuser in the room. In addition, it could prevent them from speaking candidly if they were being intimidated or coached.
- Court users who spoke a language other than English and individuals involved in their cases experienced longer virtual proceedings.
- This was because interpreters could not interpret simultaneously (interpretation happens as the speaker talks), only consecutively (interpretation happens after the speaker finishes talking). Consecutive interpretation doubled the time of a proceeding in one language.
- People who communicated using sign language or who needed to read lips needed to see everyone involved in the proceeding. This was not possible if some participants didn’t have a camera to join via video. In addition, litigants and lawyers with disabilities indicated a perceived stigma and prejudice when requesting or accessing accommodations from the court.
- Many lawyers said that virtual proceedings did not offer the opportunity to develop rapport and camaraderie with their colleagues in the profession as they could in in-person proceedings.
- Many court users could not access or afford the technology needed to participate in a virtual proceeding. To highlight this point, the report included information from the New York Legal Assistance Group’s report on COVID-19 and virtual proceedings. A study published in 2020 by the New York City Mayor’s Office of the Chief Technology Officer found that 40% of New York City households lack the combination of home and mobile broadband, including 18% of residents – more than 1.5 million people – who lack both.
Despite these challenges, civil virtual proceedings were beneficial to court users.
- According to the report, litigants with work responsibilities were less likely to take extensive time off from work to attend a proceeding. It was convenient, for example, to log in to a proceeding during a lunch break. Similarly, litigants living in rural areas did not have to worry about travel time to a court. Litigants with childcare responsibilities also did not have to make arrangements to attend a court proceeding, which meant they did not need to incur costs for childcare.
- Court users with limited mobility or disabilities did not have to experience structural impediments when attending proceedings in person.
- Having “time-certain” virtual proceedings proved to be more efficient and productive for all parties (as opposed to the in-person “cattle calls” or “calendar calls” when a large number of cases would be scheduled at the same time). This was especially beneficial to legal aid attorneys who could log in to appear in one county and then log in to appear in a separate county. Because traveling from one courthouse to another was not an issue, this meant that attorneys could represent more clients.
- In the early stages of the pandemic, when cases were high and the virus was spreading, virtual proceedings helped protect elderly litigants.
- For domestic violence survivors, remote appearances were beneficial because they eliminated the possibility of seeing their abuser in person.
What does the working group recommend for the New York Court system moving forward?
The working group produced a total of fourteen (14) recommendations, which can be found here. Recommendations included:
- Securing additional resources to develop and implement a comprehensive emergency plan for responding to future emergencies, including the creation of a standing task force available to advise on emergency preparedness;
- Expanding and supporting the use of virtual proceedings where appropriate by adopting guidelines that help identify whether a proceeding should be virtual or in-person and giving judges flexibility to decide on this;
- Fine-tuning virtual proceedings (e.g., allowing participants to test the platform before their appearance in court) to ensure a positive experience for the court user;
- Diversifying the way court users can access virtual proceedings. For example, to address the need of assisting court users with technology, the New York Courts created “kiosks” inside its courthouses to support litigants attending virtual proceedings. The courts also began partnering with government buildings, libraries, community centers, and churches to establish similar “kiosks” providing access to equipment and assistance to litigants. These community partnerships are part of the “Virtual Court Access Network,” or VCANs);
- Improving access to virtual proceedings and ensuring that court staff and judges receive comprehensive training on the accommodations available to court users with disabilities and court participants who speak another language;
- Redesigning the court’s website, www.NYCourts.gov, and making it accessible in other languages other than English (New York City’s 311 was cited as a model website on accessibility and searchability); and
- Creating a Permanent Commission to work with the court system on implementing and operationalizing the recommendations outlined in the report.
The Future is Unfolding Before Us: Innovation To Expand & Ensure Access to Justice
The findings from this report confirmed what many of us have already seen during the pandemic: innovation and technology are key drivers to improving accessibility to the civil justice system. I look forward to seeing how the working group’s recommendations materialize over the next few months and years.
I’m particularly interested in seeing the implementation of recommendations related to better virtual proceeding experiences for court users. Given many court users cited greater accessibility to the court when participating virtually, I see potential in more user-friendly and streamlined processes we can all learn from. Initiatives that were years in the making before the pandemic, such as the Family Offense Petition Program, Closing the Gap, and Family Legal Care Pro Bono (see page 16 here), are proof that technology can help ensure access to justice even during the most disruptive times.
Some improvements in virtual proceedings will inevitably be tied to more significant community investment, such as New York’s initiative to expand broadband infrastructure and provide high-quality internet to 100,000 families and homes. But, hopefully, the fact that we’ve embraced technology in one way or another during the pandemic is a positive indication of future and better innovation in access to justice. Liz Keith, Pro Bono Net’s State and National Programs Director, and Rodrigo Camarena, Director of Justicia Lab, recently wrote about innovations to expand access to justice here.
Finally, from what I’ve seen through our work in disaster response, the practice of preparing and anticipating challenges before an emergency happens can make all the difference in the outcome of an event. So, I’m glad the working group recommended developing and testing an emergency preparedness plan for future incidents. In the disaster response field, this proactive approach is often called “preparing during blue sky times” to ensure timely and organized responses to an emergency.
Jeanne Ortiz-Ortiz is Pro Bono Net’s Senior Program Manager. She coordinates, develops, and grows state and national digital projects that strengthen the work of legal advocates and pro bono attorneys helping individuals with their legal problems. In 2021, Jeanne received the On the Rise 40 Top Young Lawyers award for her work in disaster relief and leadership in the American Bar Association. You can find her on LinkedIn or email her at email@example.com.