During the pandemic, courts in the United States, and around the world, experimented with online proceedings in both civil and criminal cases. The increasing use of online processes during this time focused attention on how moving away from in-person proceedings can change and alter our legal system and continues to raise difficult questions. Are online proceedings a good thing for justice? Can using more technology in our courts help to improve how our legal system works? Could more online proceedings make our courts more accessible and actually improve justice? These are key questions for anyone looking at dispute system design and how our criminal and civil court systems work. Mentovich, Prescott, and Rabinovich-Einy offer an intriguing look into the possibility of online processes to improve access to justice and legitimacy by examining parties’ perception of online processes in traffic cases.
Why traffic cases? Most people are un-represented in traffic cases and they are seen as minor. However, the authors observe that traffic cases can provide an “important insight into the consequences of the shift online for court legitimacy” (P. 191) for three reasons. First, traffic cases are a majority of online proceedings and they use written asynchronous communication, not video or other real-time interactions. Second, traffic cases are a majority of all court cases in the United States. Finally, these cases are cases of individuals directly confronting the government. What happens in traffic court impacts a significant number of people despite the low-stakes. Therefore, examining how traffic court participants who are using online processes perceive the process can give valuable insights. The authors conducted an empirical study of traffic court participants from online traffic proceedings between December 2019 and August 2020. The survey asked participants about their experience both with the online court proceeding and the legal system in general.
Although legitimacy and parties’ perceptions of procedural justice have been studied, this has not been done in the context of online court proceedings until this study. The other piece that the authors add is looking at socio-economic status and perceptions of access to justice and how online proceedings may “tap an additional source of system legitimacy.” (P. 194.)
Procedural justice focuses on the process, not the outcome and these authors distill it to three basic components: “how parties perceive they are treated by legal authorities during legal proceedings,” “parties perceptions of the fairness of the decision-making mechanism,” and “whether parties perceive the process as one where they can tell their story” and be heard. (P. 191.) The authors do a good job of summarizing procedural justice scholarship focusing the reader on the key issues for their study of traffic cases. Through this discussion the authors explain why parties’ perceptions matter in looking at questions of procedural justice and, ultimately, legitimacy.
Online proceedings allow participants, if the process is asynchronous, to “engage with it at their own pace and at a time and place of their choosing.” (P. 190.) As the authors point out this has the advantage of relieving parties from the need to take time off work (with all that entails) and “can allow them to communicate from a familiar environment in writing.” (P. 190.) They refer to a process with “easy to use online tools” that can help parties to understand the process and help them to make arguments without needing lawyers or legal representation. (P. 190.) Online proceedings can improve access to justice because of the lower costs, “removing geographic and physical barriers and mitigating psychological difficulties” of traditional courts. (P. 194.) The authors recognize that not all litigants will find it equally easy to engage online and that their study is not necessarily representative as it is focused on those that have both used an online process and agreed to answer survey questions. As should not be surprising, the survey found that lower income participants “place greater relative weight on access-to-justice considerations in their evaluation of the legitimacy of the legal system relative to higher-income individuals” who weigh procedural justice higher. (P. 203.)
This is an excellent article to spark (I hope) more research into the strengths and weaknesses of online processes in a variety of contexts beyond traffic cases. How the process works matters and courts should be considering alternatives so litigants are not languishing for hours and days waiting for cases to be called in court when there might be alternative processes that could protect rights and give better options. Overall, the authors conclude that their study raises questions that should be followed up with additional research. This study is a first look and the authors acknowledge that “we still have much to learn about procedural justice, access to justice, and legitimacy in online settings.” (P. 205.) The authors have done an excellent job laying out the questions and issues that we should look at moving forward. Courts can fall into the trap of focusing on expediency and not justice. This article gives a clear argument, supported by data, that the process matters and that how parties will perceive the process should be front and center in any decision about what processes to use and how those processes should work. As the authors point out, failing to do so can impact parties’ views of the legitimacy of the system as a whole.
