(Bloomberg Opinion) — The time of coronavirus has been a time of reckonings — about the perils of political polarization, a diminished public sector and America’s unfinished project of civil rights. But there is a further reckoning that will soon play out, not in our hospitals, but in our courts: the legal system’s declining capacity to provide justice to ordinary Americans.
That reckoning begins in Michigan this week with the lifting of the moratorium pausing eviction cases, ordered by Governor Gretchen Whitmer in March as Covid-19 spread. When her order expires Thursday, Michigan’s courts are expecting a deluge of 75,000 eviction cases.
Michigan is not alone, and evictions are only the start. America’s courts will soon fill with millions of cases reflecting the failing finances and fraying relationships of our sheltered-in-place lives. Those cases will flood a court system already in crisis: chronically underfunded, technologically behind the curve and shockingly ill-equipped to address the justice needs of Americans, who get little help in the overwhelming majority of legal problems they encounter.
How we face this reckoning — with business as usual, or with new thinking about who can provide legal services and new technologies that assist in that work — will help chart the future of our justice system and determine whether it serves us all or just a few.
None of this is to slight the many challenges courts overcame in recent months. As the country shut down, judges found ways to keep up. In many courts this meant measures much like your grocery store: plexiglass partitions, socially distanced lines, lots of hand sanitizer. In a creative few it meant holding court outside on courthouse steps or in repurposed school gyms. Most important of all, many courts, long resistant to it, embraced proceedings by phone or videoconference. In Michigan, a remarkable 900 judges, magistrates and referees have presided over some 500,000 hours of Zoom hearings since the lockdown began.
These triage efforts paint an inspiring portrait of American grit and ingenuity. But if there is a consistent theme from the front lines, it is this: The worst is yet to come.
The Great Recession a decade ago helps put some numbers on what to expect. After the 2007-2008 crash, state court civil filings around the nation leapt by 1.5 million cases — a whopping 20%. The bulk were evictions, home foreclosures, consumer credit cases and domestic disputes. In federal courts, personal bankruptcies doubled, adding 700,000 more cases. We can expect sharper spikes this time because the pandemic’s ravages have been more ferocious.
What to do? A good start is to make permanent the best recent triage strategies, including remote proceedings and innovative diversion programs to resolve landlord-tenant cases without hearings.
But two more powerful tectonic shifts are coming — and, indeed, were already in motion when Covid-19 hit — with the potential to reshape the legal system, for good and for ill.
First is the erosion of the professional monopoly of lawyers and the empowerment of new legally trained paraprofessionals. Over the past decade, access-to-justice advocates have built a searing critique around a grim statistic: Although American law celebrates adversarialism — the Perry-Mason-like clash of lawyers in court — in three-quarters of the millions of civil cases filed each year, one side does not have a lawyer at all.
Pressure was mounting pre-coronavirus to loosen rules prohibiting “unauthorized” law practice and allow trained legal technicians, akin to specialized nurse practitioners, into the fold. Research from other countries and a few states piloting reforms finds that these nonlawyer professionals are just as good as or better in the high-volume cases likely to see upticks: public benefits, consumer debt, employment and family law. Bar associations fight them, but these reforms should continue and expand.
The second tectonic shift is the uptake of technologies, many fueled by artificial intelligence, to supplement or supplant lawyers’ work. “Legal tech” already helps lawyers decide which documents to turn over to the other side, predict case outcomes, and even choose which arguments to put before a particular judge. Others, though fewer, help people without lawyers: online legal advice via chatbot; apps such as TurboTax or Rocket Lawyer that complete legal documents, from taxes to divorces; and online dispute resolution platforms.
The looming question is whether legal tech will widen or narrow the gap between “haves” and “have nots.” Some see it as a force-multiplier that will allow smaller firms to do battle with larger, corporate-facing ones. It can also, like remote hearings, boost access to justice by reducing legal costs. “PeopleLaw,” the steadily shrinking sector that serves individuals rather than corporations, might rebound.
The darker view is that legal tech will replicate or even exacerbate existing disparities. Bleakest of all is the possibility that legal tech will make it easier for employers, creditors and landlords to bring cases against employees, debtors and tenants, not the other way around. Witness the use of robo-approaches in home foreclosures and consumer credit disputes after the Great Recession — or, a more recent example, ClickNotices, a “delinquency management solution” for landlords.
Rethinking our courts will be an all-hands-on-deck effort. Judges, working with legislatures, must make technology upgrades even amid belt-tightening and work to build out the best ideas. Rule makers must adapt to assimilate new legal professionals and blunt the effects of unequal access to new technology. Bar associations must drop their reflexive opposition and engage in an evidence-based debate about when lawyers are needed and when they’re not. And law schools must better train their graduates — including, in time, the new legal professionals — to use technology on behalf of the worst-off among us.
None of this will happen fast. Change will play out over years, not weeks or months. If and when a vaccine arrives, the hard work will continue without the reformist propulsion of sickness and death. But even once the worst is behind us, the urgent challenge will remain: What good, if anything, can we make out of Covid-19’s disruption?
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Bridget Mary McCormack is the chief justice of the Michigan Supreme Court.
David Freeman Engstrom is a professor at Stanford Law School.
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