On-Line Court Reform:
Can Technology Boost Public Confidence in the Courts?

by David B. Rottman

Findings from a recent survey of public opinion about the courts document a litany of complaints about court processes and the judiciary. Overall, more Americans thought that the courts handle cases in a poor manner than thought courts handle cases in an excellent manner. Confidence in the courts was low compared to other public institutions. The most widely held specific complaints involved perceptions that courts were too costly, too slow, unfair in the treatment of racial and ethnic minorities, out of touch with the public, and negatively influenced by political considerations.

A similar set of negative public perceptions emerged from other surveys conducted over the last two decades. It appears that the real accomplishments of court reform in the 1970s, 1980s, and 1990s made little impact on the public image of the courts. That leaves judges and court administrators with a need to find new ways of reaching with the public that can demonstrably meet public expectations and create direct and meaningful links between courts and the public.

Information technology may offer new tools to remedy legitimate public complaints and may allow courts to communicate directly with the public rather than through the media or bar. In this essay I use the results of the recent survey to identify some public concerns that might be addressed through new technologies. I leave for your consideration and discussion the nuts and bolts of whether and how information technology can be used as a force for good, promoting trust and confidence in the courts.

In January and February of 1999 interviews were conducted with 1,800 American adults for “How the Public Views the State Courts:  A 1999 National Survey by the National Center for State Courts with funding from The Hearst Corporation.”  Staff from the National Center for State Courts designed the survey in collaboration with colleagues from the University of Nebraska at Omaha’s Public Policy Center and Scientific Resources for the Law, Inc. The Public Opinion Laboratory of Indiana University completed the interviews. A unique feature of the survey was the use of “oversamples “ of Latinos and African Americans to adequately represent the perspectives of minority groups. The margin of error for survey findings is +/-2.3 percent.

Cost

The cost of going to court was a particular source of public dissatisfaction. Barely one-third of the public agreed with the statement “It is affordable to bring a case to court.” Racial and ethnic groups shared that belief to varying degrees. African-Americans (40 percent) and Hispanic respondents (39 percent) were more likely than White/Non-Hispanics (29 percent) to see the courts as affordable. Frustration over economic barriers to civil courts may now equal that stemming from perceived judicial leniency in criminal courts.

Table 1: "It is affordable to bring a case to court."

Strongly Agree                    8%
Somewhat Agree                24%
Somewhat Disagree            30%
Strongly Disagree               38%
                                     100%

A perception that court costs are prohibitive provides no guidance as to why the public views courts as too expensive to access or how it allocates blame. To look deeper into public opinions about court costs the survey asked respondents to indicate how much each of five factors contributes to the cost of going to court.

The cost of retaining a lawyer was the most commonly cited contribution. Only three out of every 100 respondents believed that a lawyer only contributed “a little” or “none at all” to court costs. More than one-half of the public perceived the slow pace of justice, the complexity of the law, and the need to spend personal time (e.g., missing work) as each contributing “a lot” to the cost of going to court. Court fees were the least frequently cited contributory factor.

Further insight into the public's view of the role of lawyers can be found in the extent to which members of the public believe that they could represent themselves in court if they wanted to. The majority of respondents (58 percent) agreed that they could represent themselves (See Figure 2). We have no way of knowing if that self-confidence is a new or a traditional part of people’s perceptions of the courts. Clearly, however, there is a clash between the expectation that one can represent oneself in court and the traditional assumption that for most kinds of cases a lawyer will be handling a case from filing to outcome.

 

The statement about self-representation to which people agreed was free-floating, not associated with a particular kind of case. We therefore do not know if confidence in one's ability to represent oneself extends to arenas traditionally free of pro se litigants or if it remains limited to arenas in which pro se litigants have traditionally appeared. Disenchantment with lawyers and a growing sense that one can or should be able to appear in court without an attorney poses some challenges for the courts. It is unclear whether improving support for "do it yourself" litigants will suffice to meet the public's expectations or the complexity of existing procedures are an insurmountable bar to prudent self-representation.

Fairness

The most troubling finding from the 1999 survey was the perception that courts are unfair in how different groups are treated. Only 18 percent of the public reported that ‘people like you’ are treated worse than others. However, there was a strong perception that members of particular racial and ethnic groups receive worse treatment from the courts than do Whites. Nearly one-half of all respondents believed that Hispanics and African-Americans are treated worse than other groups.

The sense of unfairness was particularly strong in relation to non-English speakers. Overall, 55 percent of respondents felt that non-English-Speaking people receive somewhat or far worse treatment from the courts than English speakers. A larger proportion of Hispanics (59 percent) and African-Americans (66 percent) held that view.

 

 

 

 

 

 

 

 

 

 

Connectedness

Overall, 44 percent of survey respondents agreed that “Courts are ‘out-of-touch with what’s going on in their communities.” (See Figure 4)  That is a middling but still a passing grade from the public. However, this is not true of the nation’s two largest ethnic groups, African Americans (66 percent of whom agreed) and Hispanics (54 percent).

 

 

 

 

 

 

Another indicator of perceived court detachment from the public is the belief that the courts are more responsive to the corporate world than to the public at large. That perception can be seen in the responses given in the 1999 National Survey to the statement, “When a person sues a corporation, the courts generally favor the corporation over the person,” where two-thirds of survey respondents agreed.

What Can Information Technology Contribute?

Public opinion about the courts is shaped not only by direct experience as a litigant or juror but also by second or third hand accounts of court cases; media depictions of the judicial process as news, drama, or comedy; and the way in which people generally feel about government and themselves. Raising existing levels of public trust and confidence in the courts will be difficult because the courts control so little of what shapes public opinion.

The new information technology, however, provides an opportunity to re-engineer traditional court processes to make courts more accessible and, possibly, more user-friendly for pro se litigants. Equally important, information technology provides a new route of access, linking courts and the public in a manner that may enhances public confidence in the courts.

I have used a recent national opinion survey to identify several public concerns that appear to promote a low level of confidence in the courts. I do so in the hope of stimulating a discussion as to how technological solutions might be brought to bear. I conclude with some thoughts on the prospects for realizing such solutions.

First, it is unclear whether the likely affect of information technology will be to reduce or increase access to the courts for the general public. Most people today lack or do not take advantage of information technology. The 1999 National Survey asked respondents how often they use a computer to go on-line. The most common answer was “never”, offered by 53 percent of survey respondents. Less than one person in five used computers “regularly.”  That raises the question of whether law firms and corporations are the only substantial beneficiaries of innovations such as electronic case filings.

Table 2: How often do you use a computer to go on-line?

Second, it is even less certain that the net affect of information technology would increase or reduce actual and perceived unfairness in how groups are treated by the courts. The proportion of White/Non-Hispanics who are regular internet users is nearly twice as great as that for Hispanics (18 percent versus 11 percent). Increased reliance on information technology to access the courts and pursue litigation may reinforce rather than diminish the divide between the courts and minority groups and between the well-off and the poor.

Third, the public evaluates the courts, in part, using the same expectations that they have of other public and private institutions in terms of convenience and ease of access. It is uncertain whether traditional court processes will make it possible for the judiciary to keep pace with changing public expectations. There is a lot at stake, I believe, in how well the courts take advantage of the potential for on-line court reform.

Sources

How the Public Views the State Courts. A 1999 National Survey by the National Center for State Courts and funded by The Hearst Corporation. Available on the internet at Hearst Survey Results (http://www.ncsc.dni.us/PTC/results/nms4.htm)

"On Public Trust and Confidence: Does Experience with the Courts Promote or Diminish It?" by David Rottman, Court Review, Winter 1999.

Congress as Public Enemy: Political Attitudes Toward American Political Institutions by John R. Hibbing and Elizabeth Theiss-Morse, Cambridge University Press, 1995.