If you haven’t gone to court during the pandemic, your image of COVID-era courts might be this viral video, in which a lawyer in Texas got a cat filter stuck on his face. The incident was funny and quotable, but most online court proceedings—especially civil court proceedings, where people try to do things like fight evictions or figure out child support—are both more prosaic and more important.
Qudsiya Naqui, an officer at the Pew Charitable Trust, has been studying the impact of civil courts moving online during the pandemic, and along with her colleagues, she’s found some major transformations. The move online has fixed some equity and accessibility issues, while exacerbating other problems and creating new ones.
On Friday’s episode of What Next: TBD, I spoke with Naqui about what happened when a system that hadn’t changed much since the 1700s went online almost overnight, and why there may be no going back. Our conversation has been edited and condensed for clarity.
Lizzie O’Leary: How did a typical eviction case work before the pandemic?
Qudsiya Naqui: Most civil court cases happened largely in person. Going to a courthouse, filing paperwork with a clerk’s office, and then showing up for your hearing in person in a room where there’s a judge at a bench and lawyers on either side. A lot of the processes were playing out in person, much as they did over the last centuries. Courtrooms and court processes haven’t changed all that much over time.
I think even the most casual Law and Order viewer knows that in a criminal case, you have the right to an attorney, but in civil cases, that is not so, correct?
That’s right. In three-in-four civil cases, there’s at least one party who isn’t represented. In eviction cases, 90 percent of tenants are unrepresented. We found something very similar in debt collection cases. In states where data was available, more than 90 percent of consumers in debt collection lawsuits were unrepresented.
In reading this report, I was struck by how Byzantine the civil system can be. How much of this is back and forth and filing something and trying to figure out what you’re supposed to do, especially if you’re not represented by a lawyer?
A good deal. There’s a lot of steps that happen even before a hearing in a case can happen. In the states where we have data, 70 percent of debt collection lawsuits end in what’s called a default judgment: automatic judgment in favor of the plaintiff because the defendant didn’t respond or didn’t show up for their hearing.
Prior to March 2020, what’s the burden on you as a tenant in an eviction case?
If you’re the tenant, the landlord will file an eviction case and make certain claims as to why you should be evicted—non-payment of rent or physical damage to the property or whatever it may be. The tenant is responsible for disproving that.
It seems like a lot of work.
Yeah, and given the complexity of the process, it can be really challenging, especially if the other side has a lawyer.
How did things change in March 2020?
Once March 2020 came around, it was unbelievable to see courts bring their processes online almost overnight. We looked at Supreme Court emergency orders between March 2020 and August 2020, and we found that all 50 states and D.C. either allowed or required virtual hearings, when prior to the pandemic, none of them were doing that or very few were doing that on a regular basis.
Why do you think it took a pandemic for the courts to get this kind of technological infrastructure in place?
I always think of a quote from Chief Justice Bridget McCormack from Michigan. I think she said it best when she said, “It wasn’t the disruption that courts wanted, but it was the disruption that courts needed.” There was a lot of resistance to rethinking what have been centuries-old traditions, and this was just a catalyst that really moved the needle.
The Michigan Chief Justice Bridget McCormack also said that going online made courts more transparent, more accessible, and more convenient. Do you think that’s accurate?
I think that technology has a lot of potential for those things. In Arizona, we found that in civil cases, there was an 8 percent drop in the rate of default between 2019 and 2020. That means that more people were responding to their case and/or showing up for their hearings. The ability to not have to travel to court, to not have to take off time from work, to be able to just join your case using a video teleconference platform really did benefit people and made the process a bit easier to manage, but it definitely still presented some challenges for certain groups of people.
Despite a nationwide eviction moratorium, parts of eviction cases moved through the court system anyway. What was the impact of the courts moving online on people hobbled by bad tech or lack of access?
We heard stories of people who were evicted from their homes because they never received the Zoom link. We spoke to one woman who had filed a motion to dismiss in her eviction case. She was trying to prove that the case should be dismissed and that she shouldn’t be evicted. When it came time for the hearing, she couldn’t access the “share” button on the video teleconference platform and therefore she was unable to share with the judge the evidence she had to prove her motion, and then she was ultimately evicted.
This seems like yet another manifestation, laid bare by the pandemic, of how the technological divide can really hurt people.
We found similar trends thinking about child support modifications as well. In nine states, people without lawyers couldn’t file electronically in eviction cases, and in 10 states, parents and guardians could not submit child support modification requests electronically. Oftentimes, in states where courts handle those modifications, you need to have a change in circumstances in order to make that request to change your child support obligation. Of course, during the pandemic, we saw so many people losing their jobs. So people’s circumstances were really changing, and if you’re not able to file that request, the consequences for that are potential incarceration.
Were there other barriers to access for specific groups of people?
We reviewed over 10,000 court orders from around the country that were collected by researchers from Wesleyan University. We found that less than 3 percent these documents mentioned resources or accommodations for people with limited English proficiency, and less than 1.5 percent of these documents mentioned accessibility or accommodations for people with disabilities. What that means is, if you’re a person with either of these characteristics and you’re looking for information about how to access a court process that you need to address a really critical issue in your life, you may not find it.
I’m really struck by those numbers, because under the Americans With Disabilities Act, courts should have to provide accommodation for people with disabilities. How did that shake out in what you saw?
In addition to the ADA, the state civil courts also have similar obligations for language access under Title VI of the Civil Rights Act. According to the National Center for Access to Justice—which publishes this justice index that rates states from 0 to 100 based on their policies related to access for people with disabilities and language access—even prior to the pandemic, courts were really struggling with these issues. Forty-four states scored less than 50 on the index for disability access, and 31 states scored less than 50 for language access. This was a challenge even before the pandemic. I think their ramp up of technology was really quite heroic during the pandemic. They really kept their operations moving at a time when people really needed them to resolve some really pressing financial, family-related issues, but there’s a lot of lessons that need to be learned from this experience.
What do you think is going to stay with us as part of the legal system permanently as a result of what has happened during the pandemic?
Courts are pretty committed that online tools are going to be a permanent fixture of courts. A lot of states are in the process of looking at what happened during the pandemic and deciding what good features should stay on and what features might be better conducted in the traditional format. Data, evidence, evaluation, testing are going to be key components to making those decisions.