Indeed, “Second Chance” or “Fair Chance” hiring — when done right — is good for business. Companies can fill workforce gaps and reduce turnover, increasing productivity and cutting on-boarding costs. This practice also has community benefits and is a place where corporate value and social values dovetail. When people with criminal records are employed, economic activity and new tax bases are created, and public safety increases.

A 2021 survey of human resources professionals found that 81% believed that the quality of workers with criminal records is generally the same or better than workers without records, with nearly identical hiring costs. Studies have also shown that retention rates are higher, turnover is lower, and employees with criminal records are more loyal to their employers once hired.

Recent job openings reports from the U.S. Bureau of Labor Statistics showed thousands of open positions in accommodation and food services and in manufacturing — just two of the many industries in which talented people who happen to have criminal records could fill the labor gap.

Offering a second chance

Second-chance hiring is good for employers’ bottom lines in whatever industry they operate. Fortunately, many more business leaders are also recognizing the significant value in second-chance hiring. The Second Chance Business Coalition, led by Jamie Dimon, Chairman and CEO of JPMorgan Chase & Co., and Craig Arnold, Chairman and CEO of Eaton, has brought large businesses into the space.  Corporations such as Walmart, McDonalds, Verizon, Accenture, and Koch Industries are among more than three dozen companies that have been brought together by the coalition to work on this issue.

When I was incarcerated, no one asked me for money, but nearly everyone asked me to help them get a job after they were released. Today, I work with businesses to help them develop organizational and risk management strategies to better recruit and retain people with criminal records.

A 2021 report from the Alliance for Safety and Justice estimates that one-third of American adults — roughly 78 million people — have a criminal record. The problem is even worse for Black men. A University of Georgia study found that, as of 2010, 33% of Black men had a felony conviction compared to 8% for all adults.

Unemployment also has been an inescapable by-product of a criminal record. The Prison Policy Initiative calculated that the unemployment rate for people with criminal records is over 27%. By contrast, the country’s overall unemployment rate currently stands at just 3.5%.

Expungement as a risk management tool

Expungement, or record-clearing, is a powerful risk management tool for businesses, but the system can vary drastically among states. For example, a minor drug offense in Florida can stay on a person’s criminal record for life, while a much more serious offense that involved prison time may be expunged in another state. When an employer performs a background check, the Florida person who never served a day in jail will be classified as a “felon” while the person who did years in prison will not.

Fourteen states now broadly allow felonies and misdemeanors to be expunged, while another 23 states have narrower expungement criteria for felonies and misdemeanors. Five other states allow expungement only for pardoned felonies and certain misdemeanors, and three states and the District of Columbia allow only misdemeanor expungement. Five states and the federal system have no expungement law. Without broad record-clearing laws, a person with even a minor criminal conviction will always wear that scarlet letter.

Broader expungement laws have risk management benefits as well. This creates additional issues for chief human resources officers, corporate general counsels, and employment lawyers. Most businesses will never learn of an expunged record, which generally adds additional protections against negligent hiring cases and creates no additional work for corporate staff. In contrast, when a background check has a criminal conviction, the business may have to take additional steps before it can hire the person under the Fair Credit Reporting Act, applicable state laws, and its own risk management strategy.

Without expungement, the risk management landscape is largely governed by state law. For example, Colorado law prohibits an employee’s criminal record from being introduced as evidence in a lawsuit against an employer unless there is a direct relationship between the criminal history and the underlying facts of the claim (Colo. Rev. Stat. Ann. § 8-2-201(2)(a)(I)). Florida — a state without a record-clearing process — protects employers from a negligent-hiring presumption in cases in which the criminal-records check “did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee” (§ 768.096, Fla. Stat.).

Hiring and retention are core business functions and are not an option for companies to achieve success. Unlocking this relatively untapped talent pool can help businesses grow and thrive, creating profits for the business and benefits for its stakeholders, employees, and surrounding community.

Hear more about John’s work, his former legal career, and his journey from prison to expert on re-entry into society after prison on Episode 108 of The Hearing: A Legal Podcast from Thomson Reuters.

In a May decision from the US District Court for the Southern District of New York, Upsolve, Inc. et al v. James, Upsolve, a nonprofit that helps individuals file for bankruptcy for free, challenged the state’s application of the unauthorized practice of law to other trained professionals. To help low-income individuals facing debt collection navigate and respond to their suits more readily, Upsolve launched the American Justice Movement program in January, which trains professionals to offer complimentary legal advice about whether and how to respond to debt collection lawsuits. Specifically, the volunteers sought to help New Yorkers fill out checkboxes on a one-page answer form provided by the State of New York to avoid automatic default.

In the Upsolve case, the New York Attorney General argued that such guidance was the unauthorized practice of law, but ultimately, the judge ruled that those rules did not apply to the program because the legal advice was protected as speech under the First Amendment. The court also stated that the advice mitigated the risk of harm to the consumer while addressing a significant legal problem area, further in favor of the decision.

In our new column, NextGen Justice Tech, by Kristen Sonday, we will take a look at the people, trends, and technology shaping the future of access to justice.

The ruling is monumental because it allows legal professionals to provide guidance on completing legal forms that might be applied to other areas of law, including through online tools that can reach exponentially more individuals.

“By ruling in favor of Upsolve, the Southern District of New York… established a new First Amendment right in America: the right for low-income families to receive free, vetted, and accountable legal advice from professionals who aren’t lawyers,” said Rohan Pavuluri, Upsolve’s Co-Founder and CEO.

If further applied to online forms and filing apps, then tech companies, court employees, and other volunteers would be able to assist people with basic questions about whether and how to respond to government requests, vastly expanding the number of people who can help. For individuals who are too afraid or uncertain of navigating such services on their own, this support would provide peace of mind and tangible next steps to assist significantly more low-income folks in managing the legal process.

The “sandbox” model

The implementation of state-run legal tech sandboxes is another opportunity to spur justice-related innovation. Utah was the first state to launch such a sandbox in August 2020, in which lawyers and legal professionals can develop and promote new legal solutions under the supervision of the state’s Supreme Court. One year in, the Utah Supreme Court had approved 30 companies, including those that created initiatives to provide individuals help completing court forms and receiving legal advice via chatbot.

The sandbox concept helps mitigate risk for justice tech founders since they’re building and testing ideas alongside a legal authority. In addition, through this model, “justice technology companies can partner with authorized legal services providers to offer consumers actual legal advice. Attorneys are the most obvious partners, but authorized document preparers, among others, are an often-overlooked partner,” says Natalie Knowlton, Founder of Access to Justice Ventures.

Finally, the Association of Professional Responsibility Lawyers (APRL) has made a powerful recommendation to update the American Bar Association’s (ABA’s) Ethics Rule 5.5 and permit lawyers who are admitted in any jurisdiction to be able to practice across others. “Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time,” the APRL wrote in its letter to the ABA president.

This change would be significant for justice technology companies and non-profits in that their lawyers would be able to serve individuals across jurisdictions, regardless of lawyer or client location. Justice tech companies would save time and money by being able to serve more individuals virtually, and with a leaner staff, could free up capital for other initiatives. For tech companies that currently have to hire staff who are licensed in each state in which they want to provide lower cost legal services, this reform would be game-changing.

“As a startup, an update to Rule 5.5 would allow us to move much faster in expanding our services to those in need,” says Erin Levine, the Founder and CEO of HelloDivorce. “We would be able to hire and train fewer, high-quality lawyers that provide consistency in our services across jurisdictions, as well as quickly build out subject matter expertise that can increase the number of clients served.”

Further, under this scenario, legal services organizations would be able to refer pro bono clients to attorneys across the country, making those referrals more efficient and potentially better aligned. The rule also would greatly enhance access for folks in rural areas, as they often are limited to those lawyers in nearby metro areas who might work on their matters.

By being able to access legal assistance from anywhere in the United States — via in person or online, through lawyers or other approved professionals — the magnitude by which the legal profession could greatly help those in need through better legal reforms is significant for the justice tech community and underserved citizens across the country.

This has allowed courts, litigants, and others to recreate the environment of a face-to-face court proceeding, with the added benefit of efficiency for all and improved access to justice for citizens.

Key considerations for courts

Of course, there are several key considerations that courts need to address as they continue to pivot towards conducting proceedings remotely.

What does a fully remote or hybrid proceeding entail?

In a remote proceeding, the judge, attorneys, clients, witnesses, and other participants can appear from multiple locations. By contrast, a hybrid proceeding involves some participants — often a witness — appearing remotely, while others are present in the courtroom with the judge. In either of these proceeding types, participants must have access to the specific remote technology used by the court, which frequently involves Zoom videoconferencing. While videoconferencing typically serves as a primary method for conducting a remote proceeding, a telephone backup ensures that the proceeding can continue to take place even if technical difficulties arise.

Courts may utilize different features for the videoconferencing platform as well. For example, one of Zoom’s standard features involves a private breakout room, which allows attorneys and their clients to privately communicate with each other through the Zoom platform. However, Idaho state courts disabled Zoom’s private chat feature for participants and instead require them to communicate outside of Zoom, such as by telephone.

The judge and court staff remain in control over a remote proceeding and, for example, can employ the mute feature to silence any disruptive participants.

How do the courts determine which proceedings will occur remotely?

Concurrent with rolling back orders and directives governing the pandemic, several courts have established procedures, orders, and rules addressing the specific circumstances for remote and hybrid proceedings. These proceedings vary among state and federal courts and the type of court proceeding.

What are advantages to remote proceedings?

Remote proceedings help limit litigation costs, by eliminating attorneys’ travel time and any waiting time at the courthouse. Remote proceedings also allow a party to present testimony from witnesses who may not be able to attend in person. For example, a key witness may be unable to attend in person because of their location, financial condition, or health, yet the witness may be able to participate remotely.

Courts usually can handle many matters remotely with the same effectiveness as in-person proceedings, such as holding status conferences or motion hearings that may involve non-evidentiary or procedural matters. Remote proceedings also provide flexibility for courts in scheduling proceedings when an in-person proceeding is impossible, because of a lack of available courtrooms, for example. Remote proceedings also promote public access to the courts by allowing additional viewing through livestream or recordings.

What are disadvantages to remote proceedings?

Remote proceedings may not be an effective substitute for an in-person proceeding, however. Assessing the effectiveness and credibility of a testimony requires being able to observe a witness’s demeanor, which may be impossible, limited, or even appear unnatural when captured by camera in a remote setting. Likewise, presenting exhibits can involve unique problems in a remote proceedings, requiring an ability to use the “share screen” feature and multi-tasking between sharing or reviewing displayed exhibits. If a problem arises, the effectiveness of testimony exhibits may be lost, especially if participants are forced to use a dial-in number or hold exhibits up to the camera.

Remote proceedings also restrict the ability for counsel to confer with their clients in confidence. During a proceeding, counsel and their clients oftentimes communicate by whispering or passing notes. However, a remote proceeding requires having an ability to communicate through a breakout room, texting, or otherwise, but without the appearance of distraction or improper coaching.

Further, a remote proceeding requires that the participants have technical capacity and competency. This includes having a reliable internet connection, a compatible computer, familiarity with the videoconferencing platform, and a backup plan — such as a smartphone app or dial-in number — if connectivity issues arise.

What safeguards are necessary for remote proceedings?

As with in-person proceedings, remote proceedings must comply with applicable procedural requirements, including any constitutional and statutory rights, such as constitutional due process. Additional safeguards may be necessary so that participants can have an ability to meaningfully participate, including if a participant (especially a self-represented party) cannot use a videoconferencing platform.

As a result, courts may need to facilitate access to remote proceedings by providing instructions, verifying the ability of litigants to participate, having a backup if technology fails, or holding a proceeding in-person when all else fails. Indeed, many courts, such as the US District Court for the Western District of Texas, provide detailed guidance for using Zoom, while others, like the Massachusetts Trial Courts, provide Zoom Rooms to accommodate litigants.

You can find out more about remote court proceedings here.

The COVID-19 pandemic and resulting lockdowns and government closures changed the way we were allowed to communicate, limiting personal contact and requiring the use of all alternative means. Ultimately, this advanced our overall ability to communicate and interact remotely. More than 30 states suspended in-person court proceedings for weeks or months after the pandemic hit in March 2020. New Jersey, Connecticut, Delaware, New Mexico, and Alaska mandated their use; and states including New York, California, and Texas urged use of virtual proceedings while suspending conflicting court rules. The pandemic may have forced government’s hand, but many courts and related agencies rose to the challenge in understanding new ways to use technology to ensure that people’s rights were preserved and protected.

A failure to provide adequate protection of citizens’ rights leads to more than a clogged court. There are civil implications, such as allegations of civil rights violations and expensive court cases. For example, a lawsuit, brought by San Francisco’s public defender against the San Francisco Superior Court on behalf of nearly 400 remanded prisoners goes into details about how defendants’ constitutional rights to a speedy trial could be being violated by delays and backlogs due to an overburdened and technically-stagnant court system.

As pandemic restrictions are lifted, courts must balance the benefits of traditional means of adjudication against valuable opportunities to use more advanced means. Governments must evaluate the merits and protection of rights afforded in both the use of traditional communication and virtual appearances. The goal of the court is to preserve rights, and it has become obvious that a hybrid model (using virtual and in-person options) is the best way to make sure individuals have the most opportunities and options to exercise their rights.

Participation & access are key

One of the major hurdles to access to justice, of course, is participation in the process, which can include transportation issues, childcare, time off of work, and many other issues that some people can afford to take for granted. The use of the courts’ time to issue bench warrants, dismiss for want of prosecution, and entering default judgements only to have to appeal and re-address the same issues, is an inefficient use of the limited funds allocated to the judicial system. Texas Chief Justice Nathan L. Hecht clearly explained this as the “new normal”, saying: “We really are determined to take what we learned in the pandemic and build on it.”

In Arizona, judges and other state court officials reported increases in case participation rates in 2020, which they attributed to the move toward remote proceedings. For example, there was an 8% drop year-over-year in June 2020 in the rate of default, or automatic judgments indicating an increase in participation. In Arizona’s largest county, Maricopa, the failure-to-appear rate for eviction cases decreased from nearly 40% in 2019 to approximately 13% in February 2021.

It is a critical net step for the courts and access-to-justice advocates to evaluate each change that was made in an effort to get through the period of crisis and determine which changes are critical to maintaining a properly functioning court system. While this answer will inevitable be complex, it will ultimately make the justice system better and save time and money. In many states this process has already begun.

In June 2020, the state of New York created the Commission to Reimagine the Future of New York’s Courts, a group of judges, lawyers, academics, and technology experts that is studying how courts operated during the pandemic. In April 2021, the group issued technology recommendations to “improve the efficiency and quality of justice services during the ongoing health crisis and beyond.”

As the nation enters a period of post-pandemic recovery, all government agencies have an obligation to grab hold of the lessons and technological advancements that were brought on by the pandemic and subsequent crisis. Using these lessons to create a more just court system is one way to not waste that crisis and struggle it caused.

As the A2J issue has exploded, so too have the potential solutions, including technology-based ones. In fact, technology in this space, known as “justice tech,” offers one of the best opportunities to solve for major challenges in this area.

What is justice tech?

Justice tech refers to technology-enabled innovation that supports people affected by the US criminal and civil justice system and their families (and the organizations that serve them).

While many startups have existed in this space for quite some time, justice tech as an investment sector was only recently defined during a summit that was convened by Village Capital and the American Family Institute for Corporate and Social Impact (AmFam Institute) in 2020 to redefine the criminal and civil justice tech sector from an ethical, human-centered perspective.

The event brought together an advisory board comprised of grassroots activists, foundation leaders, startup founders, legal experts, and venture capitalists to ensure this new sector is incentivized to create, support, and fund “human-centered solutions” and is led by people with direct experience within the criminal and civil justice systems.

The business opportunity is enormous because it aims to disrupt an antiquated system via technology. This is critical in a global legal environment in which more than 5 million people cannot access the legal help they need, according to the World Justice Project’s Rule of Law Index 2021; and 23 million people per year must represent themselves in US civil proceedings.

Efforts to accelerate investment in early-stage founders

Both Village Capital and the AmFam Institute continue to collaborate to encourage investment in this space, while ensuring that positive social impact remains at the forefront as this nascent sector develops. As the newly minted startups gain momentum it’s imperative to ensure that the idea of justice tech is viewed as synonymous with positive social impact, rather than letting the moniker be co-opted by companies that inflict community harm under the guise of a hot new sector.

Indeed, this sector represents a unique paradox — entrepreneurs with the highest likelihood of developing successful and impactful solutions are also overwhelmingly those overlooked by investors. Thus, early-stage support of these founders is critical to scaling success.

Fortunately, the framework of this process is designed to support investors who are beginning to explore the space and ensure that they are mobilizing capital into ethical justice tech, highlighting areas around team, business model, product, and community engagement.

To expand this kind of investor engagement and to expedite progress of the sector, Village Capital, the AmFam Institute, and Dream.org are launching a fellowship program, Innovations in Justice Tech, this fall that will support justice tech startups from across the US. The goal of the program will be to connect existing investor networks to a pipeline of founders, while generating positive social and environmental outcomes the sector’s founders.

The program will support eight to ten for-profit justice tech innovations — thought to have the potential to improve the lives of individuals and communities impacted by the US justice system — through an application process.

Launch of the Justice Tech Association

One of the key tenets that is attracting actors to justice tech is the push that the best solutions are built by those with the lived experience with the problems that they are trying to solve, says Maya Markovich, Justice Tech consultant at Village Capital. “Justice tech founders are historically overlooked for funding,” Markovich adds.

To address this problem, Markovich and four other justice tech startup founders — Courtroom 5, HelloDivorce, Easy Expunctions, and People Clerk — created the nonprofit trade group, Justice Technology Association (JTA), in February 2022 with its own board of advisors.

The launch of JTA is another key step in defining justice tech as a component of the legal industry that can build awareness among innovators, technologists, and venture capitalists of the opportunity presented by justice tech startups and nonprofits to tackle complex challenges and disrupt antiquated legal systems.

Currently, the organization is focused on a few key pillars, including:

• • • establishing, fostering, and providing access to a centralized justice tech ecosystem;
    • acting as a resource for those seeking to learn more about justice tech or exploring related funding opportunities;
    • presenting a collective voice to boost impact and advocate for regulatory reform; and
    • educating investors, consumers, and legal professionals about how technology can improve access to justice and administration of legal services to the millions of people who are unable to obtain equitable justice.

As justice tech sector continues to attract increased interest based on its growth so far in 2022, JTA membership also has grown from four in March to 30 member organizations today, with new applications coming in every week. “This space is exploding in a way that we saw in legal tech five years ago — but faster,” Markovich states.

One of the most important duties of a prosecutor is the legal requirement to turn over exculpatory evidence, meaning evidence that could prove innocence, reduce a sentence, or otherwise cast doubt on the guilt of a criminal suspect.

Prosecutors continue to face technology issues related to evidence, particularly when digital evidence is involved. This was true when I was a prosecutor, and it continues to be an important topic now, in 2022.

“The biggest thing prosecutors were facing pre-COVID and continue to face today is the ability to get access to evidence,” says Mahesh Rengaswamy, Senior Director of Digital Courts Strategy at Thomson Reuters. “Prosecutors need a consistent way to get access to the information they need to do their work in a timely manner.”

Video evidence, body cameras & more

I recall the days when a police report would show up on my desk, and I noticed that there was video evidence of the alleged crime. I often approached those moments with some trepidation. Did the officer bring me a DVD copy of the video? Will the video play on my computer? Even if it does, will the video clearly show what the officer was alleging in the report? And if the video isn’t playable, will we have to drop an otherwise provable case?

Digital evidence is a relatively new phenomenon for law enforcement investigations. And yet more cases are relying on it, and this includes such digital evidence as: video footage of a crime scene from closed-circuit television (CCTV); video footage from a civilian’s cell phone or their own security cameras such as Ring or Nest; footage from an officer’s body camera; data or information on personal computers or on portable electronic devices such as smartphones; and the list goes on. Simply put, the amount of data prosecutors are dealing with has exploded.

One main issue underlying digital evidence is admissibility in court. Is there a proper chain of custody showing how physical or electronic evidence in criminal and civil investigations has been handled? This typically means a chronological paper trail documenting when, how, and by whom individual items of physical or electronic evidence were collected, handled, analyzed, or otherwise controlled during an investigation.

Digital evidence clearinghouse

A cloud-based digital evidence clearinghouse in which evidence is collected, uploaded, and stored into a central repository — while providing a digital paper trail — is one avenue that experts are considering. Law enforcement agencies could funnel the evidence into one system and have it tagged and organized for ease of use and sharing, says Rengaswamy. This could be anything from still photos of a license plate to actual video footage of an attempted convenience store robbery. “There would be no hunting or making phone calls to 15 different people to authenticate the piece of evidence,” says Rengaswamy.

This digital evidence clearinghouse would be a central place where all the information is consolidated across multiple law enforcement agencies. It would solve a workflow challenge that currently has prosecutors typically dealing with multiple agencies at a time, whether city, county, or federal government law enforcement, all of whom may all use different systems for evidence collection and submission to the prosecutor. In a cloud-based environment, this would change to one solution, one place.

Inefficiency in the exchange of data

One thing both law enforcement officers and prosecutors could use more of is time. Dealing with digital evidentiary issues often requires the transfer of large amounts of data, and this takes time. In footage from an officer’s body camera, for example, there is the time to record the footage, retrieve it from the officer’s device and then transfer it to the police agency’s server. Then the evidence will go from the server to the prosecutor, who hopefully can access it when the police report arrives on the prosecutor’s desk. Finally, a prosecutor also has to ensure that a copy is made for the defendant and the defense attorney.

Rengaswamy suggests that if an officer had access to a digital, cloud-based solution, the camera footage would simply be upload instantaneously when the officer connects to the server, either back in the police car or back at that station. The power to immediately push the information to a cloud server to which everyone has access eliminates many accessibility challenges.

“Gone are the days of coding and integration to move bits of data from law enforcement to the prosecution,” notes Rengaswamy. “Cloud technologies eliminate all of that. There is one copy of the digital file for everyone to use. That’s the ultimate goal.”

Proprietary video footage

Having one place to upload, store, and access digital evidence is a great idea, but what about civilians or others who are using older CCTV cameras with proprietary video systems that only play on their DVD players or on some other format?

Rengaswamy explains that this shouldn’t be a problem since it is often the same codec or underlying technology, in most cases an .mp3 or .mp4 file. “Today there are software tools that can essentially decode the proprietary data and make it playable on a simple web browser,” he adds.

Indeed, we’ve come a long way from the days when the police officer needed to take the whole hard drive back to the prosecutor’s office to play the video, or burn a DVD and play it on a specific player that only played those specific video formats.

“In the search for truth, justice, and transparency, everyone should be singing from the same sheet of digital (evidence) music,” Rengaswamy says. “Everyone can be given access to the same information, and that leads to ensuring access to justice.”

This access-to-justice (ATJ) gap has remained stubbornly consistent over the last few years and law schools have a significant role to play to address the problem, says Joe Regalia, a law professor at the William S. Boyd School of Law at the University of Nevada-Las Vegas and co-founder of write.law. Regalia’s company helps legal professionals to become better legal writers and offers its tools at no cost to law students.

Thomson Reuters Institute sat down with Regalia and Amanda Brown, a legal innovation and technology expert and founder of Lagniappe Law Lab (LLL), to discuss how law schools are well-position to help address the ATJ gap, while also preparing the next generation of lawyers to innovate with the mindsets and tools to serve those individuals who cannot afford legal services.

The “low-hanging fruit” in law schools’ role, Regalia says, is combining the talent of their law students and technology at scale to increase accessibility to legal services for self-represented litigants (SRL). “Because law schools are in the business of training lawyers, and law professors have an enormous influence over law students and how they view their first job as attorneys, we can equip these students with the technology and innovation tools to scale ATJ tools,” Regalia explains. For example, law students can use technology tools to create simple document forms that can guide SRLs through filling out a motion for a civil legal need.

Moreover, students learning these skills and having these key experiences in law school:

• • • will have the skills they need to continue serving those who cannot afford legal services on their own or through legal aid;
    • will be able to bring these transformations of legal services to public institutions in which they work; or
    • can demonstrate legal innovation and technology competencies to better drive efficiency in workflow at legal employers.

Indeed, expanding law school graduates’ innovation mindset and skill sets around technology will enable them to analyze how to perform legal services differently, teach them how to adjust their approach, and how to apply their skills in a fluid environment. All of which increases their scalability to adapt the delivery of legal services to meet ever-changing client needs now and in the future, Regalia adds.

Brown agrees, noting that the need is great. “Research continues to show that the one-to-one model of legal services continues to leave millions of Americans’ legal needs unaddressed,” she says. “Investing in legal innovation and technology education is the only chance we have to disrupt that model and shrink the access to justice gap.”

Fortunately, more law schools are establishing essential requirements for legal technology and innovation programs, Regalia observes, some of which include:

Client-focused solutions — Giving law students experience in analyzing processes by thinking about the end-in-mind helps to create client-centered solutions. For example, Regalia says he started one nonprofit to empower homeless individuals to be able to successfully navigate the justice system as a SRL in a civil dispute. The first step he had to understand was the challenges that homeless individuals faced as legal services consumers and analyze the problem through their eyes. One key challenge homeless individuals experienced was not knowing their rights in a dispute. As they work through the legal system, procedural roadblocks arose because they lacked the understanding of what document should be filed. Employing innovation frameworks into existing processes enables developers to create client-focused solutions while helping law students develop the mindset and mental agility to adapt.

Understanding how tech works — Law schools need to teach these frameworks to better understand how technology tools work rather than simply teaching how to use specific tech tools.

Teamwork across disciplines — Law students need to learn how to collaborate with individuals with different domain expertise (including technical expertise) to better assist in creating a viable solution to a client issue. “A lot of these solutions work best if you get law students working with individuals in other disciplines who have different skill sets, like tech developers, computer scientists, and those from other disciplines to think about the business side of how we run teams,” Regalia says. “Law schools often sit in the best place to bring those stakeholders together.”

Being exposed to technology, collaborating with individuals of varying areas of expertise, and envisioning end-user focused solutions can open up career options after law school. For example, Brown says she started in legal technology and innovation as soon as she graduated from law school and now runs her own company, which “facilitates ATJ at scale through the use of technology, human-centered design, and operations principles.”

Her interest was first piqued as a student practitioner at the community justice and litigation technology clinics, Brown notes. Upon graduation, she fine-tuned her skills and impact as an ABA innovation fellow in 2018 before establishing LLL in 2019. “In my short time since law school, the work I’ve done has impacted tens of thousands of Louisianans,” Brown explains. “Impact on this scale is simply not possible under traditional models of legal service delivery, so while sometimes difficult, this has been an extremely rewarding path.”

I recently moderated a bar association panel, comprised of state court judges, on how best to use existing technology in state court proceedings. There were several key considerations that the panel discussed that merit further exploration.

Does the court have compatible systems for electronic filing and case record management?

Electronic filing, while convenient, creates an element of uncertainty until counsel can identify a filing as accepted on the court docket, an uncertainty complicated by the risk of a technical issue with a submission. Counsel must be able to promptly determine from the court docket whether the court processed an electronic submission, or if not, they must be able to refile if necessary. Any delay in making this determination creates a risk that counsel misses a filing deadline.

Judges must also be able to access directly all electronically filed documents. Absent this access, judges run the risk of overlooking a key document or exhibit filed by counsel.

As a result, courts must use a comprehensive system that combines the convenience of electronic filing with real-time access to the court’s records. A court should use a single case management and electronic filing system; or, if that is unavailable, courts should integrate their existing electronic filing and court records systems. Otherwise, the risks of an error exist, and counsel may opt to file in paper format (unless mandatory) to minimize potential filing issues.

Can counsel digitally submit materials in any format?

Court electronic filing systems typically require that counsel use PDF format to electronically file materials and to limit file sizes. However, PDF format is not always available for digital evidence because of the size or format of the material involved. For example, electronic filing systems often do not accept photographs, emails, text messages, and audio or video recordings in original format.

Counsel must determine in advance the best way and timing for electronically submitting materials to ensure proper consideration by the court. This requires counsel to inquire whether they can file materials using a thumb drive, CD, shared cloud drive, or other means. Counsel must also determine whether the court has compatible software or applications to access materials using counsel’s preferred file format and, if appropriate, to copy and edit materials. In turn, courts should have the latest software and applications to review, access, and use electronic submissions.

Even when a document is electronically submitted, is it accessible as counsel intended?

Counsel must understand in advance what happens to documents and other materials after filing them with the court. For example, counsel should understand the court’s capabilities for whether documents retain color features after electronic filing and if the court can print any or all copies in color. If counsel electronically file lengthy documents or multiple related documents, counsel should understand how the documents appear to the court (such as linking related documents and numbering pages).

Counsel often lacks the ability to preview documents, using a court’s electronic filing system, and see how their submissions will appear to the judge and court staff. To minimize these issues, counsel may need to provide courtesy copies of filed materials where color is relevant and independently mark page numbers of exhibits and other associated materials to ensure that a filing is complete and reviewable as intended.

Do existing courthouse facilities limit counsel’s presentation in a courtroom proceeding?

Counsel should survey the courtroom in advance to determine the available equipment and technology features. This is particularly important before trial, where counsel often must use exhibits and other materials to convince a judge or jury. Even as courts adapt to use electronic methods, their physical facilities can lag. Courtrooms do not always have sufficient existing equipment or capabilities, such as ample or nearby electrical outlets, display monitors, computer cables, or wireless internet access. The construction or location of some courtrooms may interfere with a cell phone signal to contact others or access the internet.

As a result, counsel must understand whether and how to address any shortcomings and develop a backup plan. For example, counsel must bring necessary equipment, such as power strips, cables, or a mobile hotspot. Counsel should also account for using traditional ways to present evidence, such as a whiteboard or using oversized paper versions of exhibits, especially if internet access is unavailable or unreliable or the courtroom lacks monitors.

Can the court conduct a complex proceeding remotely?

Many courts adapted to the pandemic by using videoconferencing to conduct a fully or partially remote proceeding. While a court may use a videoconferencing platform, this requires reliance on the court’s existing infrastructure, which can present challenges unless the court has upgraded that infrastructure.

Counsel must determine in advance whether the court’s technology places them at a disadvantage with a complex remote proceeding, such as a trial. For example, the court’s videoconferencing platform may need to accommodate multiple participants (such as parties and witnesses), display sophisticated exhibits (such as high-resolution documents, videos, or simulations), and provide or sync to a means for recording the proceeding. This also may require the court, as a host, to have enough bandwidth to hold the proceeding and place sufficient cameras and audio equipment inside the courtroom to avoid putting any remote participants at a disadvantage. Otherwise, counsel may need to have any complex proceeding held in person.

You can find out more information about electronically filing court documents, using digital evidence, and conducting trials and other proceedings in federal and state courts, here.

Beyond this emergency response to the crisis, many justice advocates now are asking: Could moving courts online lead to improvements in the justice system? Can online justice inject innovation into an overloaded court system? And can leveraging technology promote greater access to justice and fairness?

I recently spoke to a panel of distinguished experts during an hour-long webinar as part of the Thomson Reuters Government Influencer series using the findings and data points from my latest report, The Impacts of the COVID-19 Pandemic on State & Local Courts Study 2021.

The panel included Mary McQueen, President of the National Center for State Courts; and Mark Martin, Dean and Professor at Regent University School of Law and former Chief Justice of the North Carolina Supreme Court, about the unprecedented opportunity to reimagine our nation’s court system.

You can listen to the full podcast with Gina Jurva, Mary McQueen, and Mark Martin here.

We discussed everything from the benefits and challenges that online proceedings present for judges, practitioners, and participants to how remote proceedings can make courts more efficient while reducing the psychological burden for participants.

Representing a broad cross-section of the judicial community, approximately 240 court professionals — judges and chief justices, magistrates, court administrators, attorneys, and clerks of the court — at the state, county, and municipal courts level responded to our survey that was part of the report.

Now, in our latest podcast, available on the Thomson Reuters Institute Market Insights channel, we highlight key points from the webinar including a statistic from the report indicating that 42% of respondents felt that access to justice has increased with the use of virtual hearings, mostly due to the convenience it allows participants.

We also discussed how technology helped keep court proceedings moving, despite some technological challenges at the beginning.

Episode transcript.

As we waited for guidance from the Centers for Disease Control and Prevention (CDC) on how to proceed, safety was top of mind. As a former trial attorney, I immediately thought of those who would be most greatly impacted by lack of access to the courts, including families hoping to adopt a child through family court proceedings; victims trying to escape their abusers; prisoners suffering in overcrowded prisons; and new businesses entrepreneurs working to open their doors.

Now, more than 1½ years later, the Thomson Reuters Institute sought to learn how the pandemic impacted state and local court houses and what measures courts took to keep their dockets moving. In June 2021, we surveyed approximately 240 court professionals — judges and chief justices, magistrates, court administrators, attorneys, and clerks of the court — at the state, county, and municipal courts level, representing a broad cross-section of the judicial community.

Our findings have been compiled in a new report, The Impacts of the COVID-19 Pandemic on State & Local Courts Study 2021.

We learned about three major areas of court proceedings: courts backlogs, technology in courtrooms, and access to justice for litigants and other parties. The consensus was clear. Almost all courts (93%) moved swiftly to pivot to some form of remote proceedings in order to continue operations. These courts used a variety of technology platforms including email, video conferencing, and more. Was everything perfect? As with many innovations, especially in a more traditional profession like the law, there were challenges, but the benefits greatly outweighed them.

Individuals, in many instances, were able to access remote hearings from their homes, leveraging technology to log on for their “day in court,” while also protecting themselves from possible exposure to a deadly virus.

With the pandemic continuing both here and abroad, we will increasing see some form of hybrid court proceedings well into the future. Will those changes remain after this pandemic is a distance memory? We found that 89% of courts are continuing to use some form of remote proceedings, and time will certainly tell if “Zoom trials” are the way of the future.

However, our study showed us something else too. The pandemic-related disruptions we saw were necessary to spark the types of judicial reforms needed to better serve our citizens and our community. While courts should continue to find ways to provide more technological help to litigants, particularly self-represented parties, this shouldn’t be a deterrent for forward progress.

Without equal and fair access to our courts, individuals risk the loss of their liberty, property, and much more. When citizens do not have the same access to knowledge of their rights or an understanding of courts’ processes, we are left with a weakened and unbalanced justice system. The technology changes we have seen accelerating over the past 18 months are a positive step forward for court professionals and our nation’s citizens.

You can download a copy of The Impacts of the COVID-19 Pandemic on State & Local Courts Study 2021 here.