Novel Justice Solutions from State Supreme Courts
State supreme courts can spur culture change and innovation that promotes access to justice.
State supreme courts sit at the pinnacle of state judicial systems and are often charged by state constitutions with administering justice throughout the state. They did so in groundbreaking ways during the COVID-19 pandemic, as state courts across the country developed new eviction diversion programs, many of which showed great promise in helping tenants avoid homelessness. These programs provide a model for future innovation and highlight the role that judicial leaders can play — particularly at the state supreme court level — in addressing systemic challenges in their states’ court systems.
State supreme court justices, particularly chief justices, often spend a lot of time addressing questions about serving the people who need justice services. They generally have plenty of help; state courts’ administrative offices have teams that resemble those in any large organization. But it’s a difficult job, due to public funding deficits and the complexity of the upstream problems that contribute to the downstream issues that trial courts see daily.
For one important example, there has been a dramatic increase in recent years in the number of people navigating courts with civil justice problems but without lawyers. Courts and court processes and rules were built for lawyers and by lawyers at a time when nearly everybody who had a civil court case also had a lawyer. That’s no longer true.
In a 2022 report, the Legal Service Corporation found that the justice gap is growing. Low-income Americans do not get any or enough legal help for 92 percent of their substantial civil legal problems. In the past year, three in four low-income families experienced at least one civil legal problem. Two in five experienced at least five issues, and one in five experienced at least ten problems. More than half of low-income Americans who personally experienced a civil legal problem say it substantially impacted their lives, with the consequences affecting their finances, mental health, physical health and safety, and relationships.
Today’s large number of lawyerless litigants is a relatively recent problem. While court data is hard to come by, in 1976, two Yale Law School students studied 2,500 divorce cases in two trial courts in Connecticut and published their results in the Yale Law Journal. The students were future Stanford professor Deborah Rhode and her husband-to-be, NRDC lawyer Ralph Cavanagh. They found that 2.7 percent of the cases they studied involved an unrepresented litigant. They also cited a then-recent study in San Mateo County, California, showing that 20 percent of divorce petitioners were proceeding without lawyers — a figure they characterized as “an unprecedented surge” in self-representation. Subsequent studies of lawyerless litigants, most focused on family law cases, showed a steady rise over the remainder of the 20th century until reaching the current numbers by the early 2000s.
The justice problems that result in people needing courts for solutions are significant: evictions, debt collections, and family matters. As justice administrators, state supreme courts can promote innovation that proactively addresses legal dispute sources. Two areas ripe for upstream solutions are housing and debt collection.
The COVID-19 pandemic put millions at risk of eviction, as job loss and limited rental assistance overwhelmed tenants. Many courts responded by starting eviction diversion programs, pausing cases, and connecting tenants with rental aid and social services. The results showed promise in avoiding massive displacement and homelessness.
But the lessons for court leaders were more than substantive. Diversion was an excellent strategy for providing an accessible, understandable, and cost-effective alternative to traditional court proceedings for self-represented litigants. And by addressing the problem at its early stages, the program reduced the load on the courts, saving time and resources. Finally, these programs demonstrated the effectiveness of collaborative partnerships between the judiciary, executive agencies, community organizations, and nonprofits in delivering innovative solutions.
Making eviction diversion permanent by securing sustainable funding and collaboration across and outside of government would bring significantly more solutions for impacted people, communities, and courts alike. State supreme courts are well positioned to accomplish this, as they can convene the stakeholders who can deliver these upstream solutions and collect data about the programs so they can be continuously improved and exported to other jurisdictions.
Debt collection cases could benefit from upstream innovation too. Debt claims have come to dominate state civil court dockets in recent decades. From 1993 to 2013, the number of debt collection suits more than doubled nationwide, from less than 1.7 million to about 4 million, and consumed a growing share of civil dockets, rising from an estimated one in nine civil cases to one in four.
Consumer debt often results from financial struggles, not willful nonpayment. Default judgments routinely favor collectors, as consumers lack understanding or representation. But default judgments do not regularly result in collectors seeing increased payments. An effective debt collection diversion program could counsel consumers, negotiate payment plans, and address root causes like predatory lending. Nonprofit partnerships can supply neutral mediators and financial experts to resolve disputes before litigation is the only option, benefiting debtors and collectors. Again, courts could lead the way by convening stakeholders and collaborating outside their branch.
Of course, innovation involves trial and error. Some pilots won’t work, and others won’t scale. But preliminary evidence should encourage court leaders to run more experiments. Philadelphia’s landlord-tenant diversion program has reported a 98 percent settlement rate since 2020. New York’s statewide access to virtual housing court mediation also shows promise. The Michigan Justice for All Commission secured legislation in 2021 to implement debt collection diversion. These upstream responses to justice problems were not historically considered part of the judiciary’s job. State supreme courts must lead the culture change.
Innovative approaches to high-volume dockets would require relatively modest investments compared to the systemic costs of unresolved legal problems. Studies consistently show legal assistance to tenants reduces evictions, stabilizes housing, and decreases homelessness, and early debt intervention reduces collection actions. Though funding poses challenges, supreme courts wield the authority to spur partnerships, share costs, and seek grants.
Successful innovation requires reckoning with orthodoxy, including around the court’s role. State supreme courts can redefine the metrics of justice system success, from efficiently processing cases to reducing harm from justice problems. Upstream solutions promote substantive justice and grow faith in the courts.
Bridget McCormack is the president and CEO of the American Arbitration Association-International Centre for Dispute Resolution and previously served as the chief justice of the Michigan Supreme Court. She is a member of the State Court Report advisory board.
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