On December 1, we celebrate Rosa Parks Day. There is no better day to consider the access to justice concept and how technology fits into it. Although our nation has made strides in the Civil Rights Movement during the last 65 years, it is quite clear that there is a lot of room for improvement. What is access to justice? How do technology and access to justice intersect?
What Is Access to Justice?
At its most basic level, the term “access to justice” means the ability that a person has in accessing the legal system. This includes, and is not limited to, the ability to afford an attorney and file a lawsuit. There is only a legal right to an attorney if a person faces a criminal charge. There is no right to an attorney if someone is involved in a civil matter.
Yet, even if an individual is charged with a crime and opts to use a public defender, there are still barriers that could prevent them from receiving a quality defense, regardless of their charge and whether they would prefer to enter a specific plea or even accept a plea agreement. Although it is a constitutional right to be represented by an attorney, there are many states that require indigent defendants to pay to access a public defender. While the fee may be based on a sliding scale and it may seem nominal to readers, this creates an access to justice issue for many individuals.
In the civil system, there is no constitutional right to an attorney. If a person can afford an attorney, great. Sure, there are legal aid organizations set up to provide access to justice. However, many do not have the funds, enough employees, or enough volunteers to help every person who seeks them out. Many Americans cannot afford to pay an hourly rate to have an attorney handle a civil matter. Even if they manage to come up with a retainer, they may not be able to see the matter through to completion or finish paying their attorney.
And, of course, there is the court system itself. There is the cost of filing, litigating, and/or defending a lawsuit. There is also the matter of obtaining a fair resolution. All lawsuits are different, of course. For civil matters, it is almost always better to settle than to go to court (not legal advice, by any means…just common sense). Litigation is expensive. Even if a contingency fee is involved, a lawsuit can easily cost an individual a minimum of $10,000. The more complicated the lawsuit, the more expensive it becomes. Once someone gets to court, there is generally no guarantee that they will get the outcome they seek.
Speaking of “once someone gets to court,” the amount of time it takes to get into the courtroom is another issue that plagues access to justice. This isn’t a new issue that started with the pandemic. Courts were backed up long before shutting down and stopping jury trials. For those new to the access to justice concept, many judges encourage litigants to first avail themselves of less-expensive (and often less time consuming) options such as settlement conferences and mediation. For both civil and criminal trials, the time it takes to get to court can be detrimental. Evidence can deteriorate or disappear. Witnesses can move away, pass away, or (at least in civil matters) decide they no longer wish to participate.
Technology and Access to Justice
There is no doubt that technology can and does play a part in improving access to justice, both in the civil and criminal law systems. However, again, we still have a long way to go as a nation and as a legal system. That doesn’t mean that we don’t have what is generally thought to be the best legal system in the world. We do, however, still have plenty of room for improvement when it comes to access to justice for everyone, especially minorities and anyone without the financial means to access the legal system. Here are a few ways that technology and access to justice work together.
Technology helps cut legal expenses. For many civil matters, there is no longer a need to hire an attorney. There are flat-rate packages offered by attorneys for contracts, divorces, bankruptcies, leases, evictions, and practically everything else. Examples include HelloDivorce, Samantha Martin Law, and ZaviehLaw.com.
Providing free online resources. Legal aid websites, bar association websites, and many legal clinic websites provide free online resources for common civil matters. This includes, and may not be limited to, divorce, guardianship of adults or children, eviction, tenant rights, domestic violence information, bankruptcy, and information about wills. Many also include additional links to other websites that may be able to provide legal assistance or advice.
Safer access to the legal system. This point isn’t just about the pandemic. COVID-19 is an easy point to make. Several courts have implemented virtual hearings and trials. Also, the ability to e-file documents, where available, keeps both attorneys and parties safer by potentially limiting their exposure to the virus. Most law firms continue to offer at least the option of online consultations as well as online meetings. Additionally, in situations where a threat to someone’s safety may exist, such as stalking or domestic violence, online opportunities could provider safer access to justice.
Easier and safer access for those with disabilities and chronic illnesses. Technology allows for easier and safer access to justice for individuals with disabilities and chronic illnesses. According to a study by Harvard, technology provides “meaningful access to information and the courtroom.”With the number of accessibility programs available, technology may, for many, provide better access to justice.
Improved access to attorneys and licensed legal technicians. Technology has improved access to attorneys as well as, in some states, licensed legal technicians. From Google to Google Maps to FindLaw to Avvo to Twitter, searching for an attorney or licensed legal technician is easier (although the results may be overwhelming).
Improved access to fundraising. It would be unmindful if this article did not mention improved access to fundraising. While there are other issues beneath the surface, we have all seen at least one GoFundMe or PayPal fundraiser asking for assistance for legal fees of some kind. Setting aside any personal feelings, the ability to fundraise the money it may take to hire a private attorney as opposed to relying on a public defender or hiring a family law attorney instead of appearing pro se can make all the difference in a person’s future.
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