As more and more states explore e-filing, it is important to remember the critical relationship between e-filing and access to justice.
Most state level e-filing initiatives seem to be moving more slowly than anticipated. (NCSC very useful state links here. Court Technology Blog article on new e-filing bills in legislatures here). Perhaps this is because so many have been set up with use by lawyers as the main goal, and with the self-represented largely forgotten.
But in so many courts, the self-represented make up the bulk of the caseload, and certainly the bulk of the work of the clerk’s office.
What is needed is a commitment, actually a national commitment, to access-friendly e-filing. Such e-filing would:
- Be linked to sophisticated branching Q and A document assembly that would allow users to create the documents they need to file to make their legal claims
- Have seamlessly integrated the fee payment and fee waiver process into the software. (For example, the software could allow for presumptive granting of fee waiver requests – this would mean that waivers would be assumed to be granted upon application, with the judge making a later decision, and the court then not taking action until the fee was paid in those cases in which the waiver was denied. This would have the advantage of making filing possible without credit card.
- Working through the signature and proof of identify issues in ways that reflected the needs of communities in which not everyone has a credit card and a driving licencse.
Even without solving these problems, the process of setting up e-filing is complex and expensive. This makes it all the more important that voices articulating these perspectives be at the table during the contracting, design, and deployment process.
At the state and local level, this means that court self-help programs and legal aid programs must ask to be brought into the process. At the state level it means that access to justice commissions must put this on their agenda, and similarly make sure that they are included in the process. (Indeed, this example is one of the best that I know as to why we need such commissions in every state. Current list here.)
In order to make sure that this cluster of issues is raised in every state, we need a national campaign for access-friendly e-filing. Someone needs to be:
- Developing Best Practices in this area (using as an intellectual base the general Washington State Access to Justice Technology Principles adopted by court order.)
- Developing concrete policies and regulations consistent with these best practices
- Developing educational and training materials on this approach
- Supporting networking among those interested in the topic.
- Acting as a resource for those advocating locally
- Advocating nationally.
I would like to see all the national access to justice groups think about their role in this — Legal Services Corporation, National Association of IOLTA Programs, State Justice Institute, SCLAID, Access to Justice Commissions Network, National Legal Aid and Defender.