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Pro Se Support System Can Help Courts Increase Case Capacity

Courts across the country are facing an unprecedented case backlog created in large part by our response to the COVID pandemic. Some of the backlog is a result of court shutdowns causing hearings to be pushed into the future. And some of the backlog is new litigation that is a result of COVID-related financial stress. For example, the courts have been inundated with landlord-tenant disputes as the eviction moratorium ends.

Unfortunately, while the demand for court services has greatly increased, the financial resources to provide court services are still below what they were ten years ago. In California, court funding was slashed during the Great Recession a decade ago, and it has never returned to earlier levels.  This is likely true in other states.

The two common and obvious ways to increase case capacity are by hiring more judges and clerks, and by adopting new technology to directly help existing judges and clerks become more productive. For example, California’s recent budget proposal includes money to use retired judges from the Temporary Assigned Judges Program to help courts mitigate criminal trial delays.  The proposal also includes $2.1 billion over the next five years to fund courthouse construction to create space to house the additional personnel. Also, there are numerous case-flow management vendors providing technology that helps court cases progress in a timely fashion from filing to disposition.

Unfortunately, both ways are reliant upon support from something that has proven to be unreliable in the past: budget increases. This means when a future economic calamity hits, the courts will be forced to cut costs which will result in the elimination of positions or even expensive technologies. Fortunately, there is a third way.  A real common sense alternative way to increase capacity that is not dependent upon tax revenue.

We can learn from the manufacturing industry of a way to increase case capacity by indirectly helping judges and clerks become more productive. The methodology is called Lean Manufacturing Management Practices and one of the tactics is the elimination of waste. Toyota popularized this practice and became a highly successful auto manufacturer post-World War 2 after it developed and implemented the Toyota Production System.

While practitioners of lean management have identified seven types of waste, this paper discusses two types: procedural defects and [unnecessary] motions.

Procedural defects are wasteful in that most of the energy spent correcting defects does not add to the value being created. Two examples of procedural defects that bog down judges, clerks, and chambers staff are:

  1. Court clerks waste time reviewing defective forms and advising the filer what needs fixing.

  2. Judges’ time (and the time of all the court staff involved) is wasted when hearings are adjourned because plaintiffs failed to properly serve defendants.

Unnecessary motions refer to the time required to deal with frivolous or improper hearings – which time could have been spent on moving prepared cases forward.  Examples of actions made by uninformed self-represented litigant (or pro se litigants) that waste court time are:

  1. Waste time and energy during trial trying to cover matters that are not relevant or will not be allowed or causing the court to frequently denying admission of evidence, interrupt to stop improper questioning, or otherwise correct or instruct the litigant.  In essence, pro se litigants being unprepared and filing unnecessary motions are causing courts to go through unnecessary motions, no pun intended.

  2. Courts waste time listening to pro se litigants who do not understand the difference between a perceived harm and a legally recognized cause of action and explaining to them how those harms are not legally actionable.

Procedural defects can be reduced or even eliminated by providing pro se litigants with help to complete forms correctly, to properly serve defendants, etc. Unnecessary motions can be eliminated by providing pro se litigants with:

  1. Legal information on what constitutes a legally recognized cause of action so that they will only act when they know that they can prove the cause of action.

  2. Legal information on what facts are relevant to the cause of action so that they will only present relevant facts during trial and omit the irrelevant.

  3. Legal information on what evidence they can provide during the hearing to bolster the credibility of their own testimony or attack the credibility of the opposing side so that judges will have to spend less time trying to figure out what the truth is.

In short, the amount of wasted court time will be reduced – perhaps significantly to the point of being eliminated.

If staff and judges spend less time on waste (i.e., activities that do not move a case forward), then they have time to spend on activity that does move cases forward. For example, assume that for ten small-claims cases, twelve hearings will be required. Let’s say that these two extra hearings are due to the plaintiffs’ failure to serve the defendant. If a Pro Se Support System can eliminate 50 percent of these wasteful hearings, then that means the judge will be able to hold a meaningful hearing using the time that previously went to waste. This means that of every twelve hearings, a judge will be able to process eleven cases instead of only ten. This means the judge’s case capacity has effectively been increased.

Court self-help centers and legal-aid organizations are two existing types of organization that provide pro se litigants with procedural help and legal information. And while self-help centers and legal aid were originally set up to solve the access-to-justice problem, they also create the side benefits of eliminating waste from the court system. Researchers investigated cases in which the litigants received help from a self-help center and found no evidence of problems relating to service of process or missed or rescheduled hearings.

But while self-help centers and legal organizations are helpful, they provide much of their help in a very people-intensive way. This means their help isn’t scalable, which limits their ability to eliminate waste and prevents them from indirectly increasing the productivity and case capacity of judges and staff.

This is where scalable technology that provides support to pro se litigants—a Pro Se Support System—can greatly change the situation. However, this support system must be much more than just helping litigants fill out forms.  At the very least, the Pro Se Support System must provide litigants with procedural help and legal information. At the very best, the system can help litigants from the very beginning (when they are unsure if they even have a legal problem) all the way to trial by giving them a way to effectively present their case to the judge. This help will reduce wasteful procedural defects and unnecessary motions that are currently being created by pro se litigants.

The best part about a Pro Se Support System is that it doesn’t require the courts to make a large investment in technology. Like existing e-filing systems, the Pro Se Support System is consumer facing. This means like e-filing systems, the system can charge the consumer to cover its operating costs. By not requiring a dedicated line item on the budget, this system is immune to tax revenue fluctuation. This means any case capacity gains cannot be taken away when there is a budget cut.

In conclusion, by adopting Lean Manufacturing Management Principles’ ideas such as the elimination of waste, and by providing pro se litigants with a Pro Se Support System to help them not create waste, courts can benefit from improved productivity and increased case capacity.

- Binh Dang is President and co-founder of Quest for Justice.

Quest for Justice launches JusticeDirect.com to Help Writing and Sending a Demand Letter

 

On October 27, 2021, Quest for Justice (Q4J) will launch the first phase of the release of JusticeDirect: the JusticeDirect Demand Letter. This product will help people without lawyers, draft and send a customized letter demanding payment, free of charge.  Rather than use a generic sample demand letter or a template, JusticeDirect will guide users step-by-step to prepare and send certified mail, a professional and personalized demand letter.  The system helps users avoid common mistakes that delay justice.  Whether you are owed money, or you are not happy with services you already paid for, sending a detailed and professional demand letter is the first step to be taken seriously in this process and getting the justice you deserve.

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