My article on triage, titled The Access to Justice “Sorting Hat” — Towards a System of Triage and Intake that Maximizes Access and Outcomes, 89 Denv. U. L. Rev. 859 (2012), is now online at the above link.
I very much hope that the paper advances the discussion about triage. The reference in the title to the “Sorting Hat” is, of course, to the triage process that occurs early in the first Harry Potter book and film. The point is made that the Sorting Hat acts with more transparency that most of our access to justice triage systems.
Here are the key suggestions about building a triage function, as summarized at the beginning of the paper:
- Recognize and design around the fact that there are two different triage processes: one dealing with how a court will handle a case and one dealing with how litigants will obtain the services they need to interact with the court and other players. (This would include situations in which going to court would not be involved.) The questions are whether this triage is being done thoughtfully and effectively, and how we can best ensure that all systems use their resources well.
- Develop an agreed upon set of core principles that would guide the design of triage processes.
- Consider, as one possibility, a process in which a trained assessor makes recommendations for both sets of triage based upon relatively general protocols.
Consider as an alternative system one in which an algorithm makes the recommendations based upon information provided by litigants, the court, and access providers to a web gateway, while being sensitive to the risks of non-human decision-making.
- In either possible system, the decision about the track to which a court assigns a matter should be based upon the kind of tasks the court will need to do, rather than the case type.
- In either possible system, the decision about the services the liti- gant will receive should be based upon the tasks the litigant will need to perform in the track to which she has been assigned, and her capacity to perform those tasks given the kinds of services provided.
- Be sensitive during the design process to the fact of the relative lack of validation of theories about the impact of different services upon outcomes.
- At least in the case of the tech-based algorithm, use a presumption-based system, in which the tasks and services would be presumed based upon the court track, the stake, the relationship (including power relationship) between the parties, the case type, and the prior presence of an attorney on the other side. The presumptive result would then be modified based upon the capacity of the litigant and based upon data not necessarily directly relevant to the case, including potential information relating to ability to prosecute the case on their own, language spoken at home, literacy level, and prior experiences in court.
- Recognize that at least one of the reasons for the lack of progress in this general area has been fear of the consequences of identifying individual cases in which services are required but cannot be provided for resource reasons.
- Faced with these resource limitations, build the system so that the system would change its behavior to match service need and availability. This could be done in ways that either protect those with lower capacity or those facing the highest stakes and most difficult issues.
- Ensure that the system produced ongoing reporting of the mismatch between litigant services need and capacity, and these results could then be used to design new service components and argue for additional resources.
With the increasing focus on triage as a key to 100 access, as shown and advanced at the recent technology Summit, this is likely to be major area of discussion as we move forward.
Indeed, the paper concludes:
In particular, this paper highlights that any effectively functioning system is going to have to be skillfully and legitimately coordinated. It is hoped that this paper will also encourage states to start to wrestle with the problem of how to establish a system to do so and that state players will start to take responsibility for thinking about the triage function, even before it is practicable to start to deploy it. Professor Dumbledore would ask no less.