How Court Personnel Can Take an Active Role in Administering Justice
Steps for making civil courts more equitable
Overview
When court users can connect with the resources they need, courts can protect and enhance neutrality and support fact-based decision-making.
Court personnel looking to take a more active role in administering justice can implement three key practices:
- Communicate effectively with court users.
- Connect and refer court users to needed legal and nonlegal resources.
- Ensure that court processes are consistent across jurisdictions and support court user engagement.
After extensive research, The Pew Charitable Trusts has developed a framework outlining how and why courts should modernize.1 These steps arise from that work and can help programmatic and operational court staff, along with court leadership, take an active role in administering justice; identify opportunities to improve; and decide—with input from relevant stakeholders—which of those opportunities to pursue and how.
Step 1: Bring together relevant court staff and external stakeholders
These groups can contribute important perspectives and insights about how court personnel can take an active role in administering justice.
Court users can provide feedback about their experiences navigating their cases and what support they need from judges and court personnel.
Court leadership can identify and elevate government services and benefits, such as rental assistance, Social Security, and Medicaid, as well as local resources and courts programs; champion reforms; set guidance for docket management; support better referrals between the court, government agencies, and community organizations; and engage with court committees and the legislative branch to advance needed rule or statute changes.
Judges can implement changes, provide expertise on how their peers and clerks can take an active role in reviewing users’ documents, and share best practices for asking users questions during hearings and explaining processes.
Clerks can work with case managers and judges to develop checklists and other tools to support robust review of litigants’ documents and flag issues for judges, proactively notify court users about upcoming deadlines and tasks, direct court users to needed community supports, and identify and adopt best practices from other jurisdictions.
Legal counsel can provide guidance on what types of assistance court personnel are allowed to offer to court users.
Access to justice staff can work with court staff to determine needed guidance and training, keep courthouse self-help staff updated on the resources available for users, and serve as a referral source for judges and other court personnel.
Self-help staff can identify problems that self-represented litigants encounter and share those issues with court leadership and judges, be a partner and referral source for judges, and work with access to justice staff to keep information about available community and court resources updated.
Community partners (e.g., shelters, legal aid, health care centers, public libraries) can refer people to court self-help staff and flag court user needs.
Court researchers can analyze dockets and conduct qualitative research (e.g., surveys, interviews, focus groups) to identify and understand the barriers court users experience in navigating cases.
Legal stakeholders (e.g., legal service providers, law firms) can flag inconsistencies in how the court or court personnel apply rules, processes, and policies to different groups of users.
External researchers can analyze and evaluate pilot programs, provide technical assistance to courts, and gather attorneys’ and court users’ feedback about their experiences, such as whether they understood the steps of their case and whether the court applied rules and processes consistently.
Step 2: Assess current practices and set next steps
The following metrics can help courts assess their progress toward court personnel taking an active role in administering justice. (See Tables 1-3.)
For each metric, determine whether the answer to the initial question is yes or no using the suggested measure. If the answer to the metric question is no, pursue the suggested next steps in collaboration with staff and stakeholders. The suggested steps are not prescriptive; instead, they provide ideas and options for getting started. The state examples can help courts determine what actions are feasible given available resources.
Table 1
Court Personnel Should Be Empowered to Assist and Communicate With Court Users
Metrics, suggested steps, and state examples and resources
| Metric | If not, suggested next steps | Examples and resources |
|---|---|---|
|
Do court personnel understand what types of assistance they can provide to help court users navigate their cases? How to measure it: Survey court personnel, review rules, and examine guidance court personnel receive about the assistance they are allowed to provide. |
Who’s involved: Internal Experts:
Court users |
|
|
Does the court provide judges and magistrates with guidance on how to explain processes and ask questions during hearings to help capture all the facts, while remaining impartial? How to measure it: Review existing training materials and other guidance for judges, as well as rules and case law related to the types of information judges and magistrates are and are not allowed to ask about. |
Who’s involved: Internal Experts:
|
|
|
Do judges and other court personnel request interpreters when they identify a communication barrier? How to measure it: Review when, whether, and under what circumstances judges or court staff—rather than court users—submit interpreter requests. |
Who’s involved: Internal Experts:
|
|
| Sources: Illinois Supreme Court, “Policy on Assistance to Court Patrons by Circuit Clerks, Court Staff, Law Librarians, and Court Volunteers” (2018); Supreme Court of Colorado, Office of the Chief Justice, “Directive Concerning Colorado Courts’ SelfRepresented Litigant Assistance” (2013); John Lackey, “Customer Service in Rural Justice Courts” (TJCTC staff attorney,Texas State University); Texas Courts, “Legal Information vs. Legal Advice: Guidelines and Instructions for Clerks and Court Personnel Who Work With Self-Represented Litigants in Texas State Courts” (2015); New Mexico Supreme Court, “In the Matter of Expansion of the Scribing Program to Permit Court Staff to Assist Eligible Self-Represented Litigants With Filling Out Court Forms” (2022); State Court Administrative Office, Michigan Supreme Court, “Amendments to Administrative Order No. 2020-17, MCR 2.408, and MCR 4.201: Frequently Asked Questions” (2023); National Center for State Courts, “CourTools: Giving Courts the Tools to Measure Success” (2005); National Council of Juvenile and Family Court Judges, “Bench Card: Questions Every Judge and Lawyer Should Ask About Infants and Toddlers in the Child Welfare System”; American Bar Association, “Model Code of Judicial Conduct: Ex Parte Communications” (2020); Wisconsin Courts, “Working With Interpreters in Wisconsin: Benchcard for Judges” (2022); New Mexico Judiciary Center for Language Access, “Language Access Basic Training” |
Table 2
The Court Should Facilitate Connecting Court Users to Legal and Social Services
Metrics, suggested steps, and state examples and resources
| Metric | If not, suggested next steps | Examples and resources |
|---|---|---|
|
Do litigants receive any type of legal help during their cases? How to measure it: Analyze court data related to legal representation, such as whether an attorney is on record, whether the lawyer was present at a hearing but did not provide full representation, or whether the defendant had limited help (e.g., preparing a document). |
Who’s involved: Internal Experts:
External Experts:
|
|
|
Do courts regularly refer users to social services, when appropriate, to resolve their issues? How to measure it: Analyze court data or track referrals from self-help staff, courtroom navigators, and judges. |
Who’s involved: Internal Experts:
External Experts
|
|
| Sources: Supreme Court of the State of Oregon, “In the Matter of Approval of Rules to Implement Paralegal Licensing in Oregon” (2022); Tara Hughes and Joyce Reichard, “How States Are Using Limited Licensed Legal Paraprofessionals to Address the Access to Justice Gap” (Sept. 2, 2022); National Center for State Courts, “Building Eviction Diversion Referral Partnerships”; National Center for State Courts, “Appendix D: Pilot Projects, Rule Changes, and Other Innovations in State Courts Around the Country” (2016); Maryland Judiciary, “Grant Awarding Department Archives”; Maryland Legal Services Corporation, “What We Fund”; Las Vegas Justice Court, “Eviction Diversion Program Presentation” (2023); M. Begay, “54-A District Court Receives Funding for Program to Reduce Evictions in Lansing” (July 20, 2022); Judicial Council of California, “Human Trafficking in California: Toolkit for Judicial Officers” (2017); National Center for State Courts, “Eviction Diversion Best Practices—Timing Considerations”; National Center for State Courts, “Active Judging in Eviction Court” webinar (May 17, 2023), https://vimeo.com/829387413 |
Table 3
Courts Should Use Consistent Practices and Processes to Support User Engagement
Metrics, suggested steps, and state examples and resources
| Metric | If not, suggested next steps | Examples and resources |
|---|---|---|
|
Does the court consistently identify and dismiss invalid cases (e.g., outside the statute of limitations, incomplete documentation attached)? How to measure it: Review documentation on a random sample of cases to check their validity and how they were handled. |
Who’s involved: Internal Experts:
External Experts:
|
|
|
Do court processes and costs discourage defendant engagement? How to measure it: Review statutes and court rules related to court costs, fees, and procedures to determine whether they present barriers to participation and measure if and how engagement with a case affects the amount of money defendants owe at the end of the case (e.g., increased judgment amounts, higher attorneys fees). |
Who’s involved: Internal Experts:
External Experts:
|
|
|
Do all courts interpret and apply court rules and processes consistently? How to measure it: Survey external stakeholders and court staff that most frequently interface with court users to learn whether individual courts interpret and apply rules differently. |
Who’s involved: Internal Experts:
External Experts:
|
|
|
Can clerks and judges easily substantiate whether defendants are successfully notified of a case against them? How to measure it: Spot-check the veracity of proof of service, such as by reviewing a sample of affidavits to see whether the claims within could reasonably be true, or by calling litigants to see whether they knew about their case. |
Who’s involved: Internal Experts:
External Experts:
|
|
|
Are ability-to-pay determinations part of default court processes? How to measure it: Review court processes and guidance for judges about ability-to-pay determinations. |
Who’s involved: Internal Experts:
|
|
|
Do eligible court users receive fee waivers? How to measure it: Analyze bulk court data to determine whether waivers are being issued. |
Who’s involved: Internal Experts:
|
|
| Sources: Commonwealth of Massachusetts, “Civil Procedure Rule 8.1: Special Requirements for Certain Consumer Debts” (2018); North Carolina, “Gen. Stat. § 58-70-115.” (1979); La Crosse County Circuit Court (Wisconsin), “Sufficiency of Consumer Credit Complaint Checklist”; Utah Bar Foundation, “Utah Bar Foundation Report on Debt Collection and Utah’s Courts” (2022); Minnesota State Bar Association Access to Justice Committee, “Minnesota Consumer Debt Litigation” (2023); The Pew Charitable Trusts, “How to Simplify Court Processes to Support User Engagement ” (2023); Institute for the Advancement of the American Legal System, “Survey of the Arizona Bench and Bar on the Arizona Rules of Civil Procedure” (2010); Arizona Supreme Court, Administrative Office of the Courts, “Arizona Supreme Court Approves Civil Justice Reforms” (Sept. 26, 2017); National Center for State Courts, “Civil Justice Initiative: A Renewed Analysis of the Expedited Actions Rules in Texas Courts” (2023); National Center for State Courts, “Service Modernization Brief” (2022); National Center for State Courts, “Tiny Chat 113: Sparring with Spulak—Service of Process Modernization” (Jan. 5, 2023); New York City, “Admin. Code §§ 20-410” (2011); Massachusetts, “R. Civ. P. 8.1(E)” (2018); Washington State Supreme Court’s Minority and Justice Commission, “Legal Financial Obligation (LFO) Calculator”; North Carolina Judicial Branch, “Judgment Calculator”; National Center for Access to Justice, “Fines and Fees Justice Index”; Maryland Judiciary, “Request for Waiver of Prepaid Costs” |
The work in action: One Indianapolis judge takes an innovative approach to evictions
In Indianapolis’ Lawrence Township Small Claims Court, Judge Kimberly Bacon takes an active role in helping landlords and tenants resolve disputes via a “one-stop shop” housing court model that connects parties with information and resources. Bacon implemented this approach in 2021 after seeing the same faces in her courtroom multiple times. Her goal was to make information more available for tenant-defendants and also for landlord-plaintiffs, who are often individual property owners seeking help not only for themselves but also for their tenants. In its first year, the program helped resolve more than 90% of filed cases without the court issuing an eviction judgment against the tenant.
“I wanted to make sure information was easily accessible for all litigants that came to the court,” Bacon explained during a recent National Center for State Courts (NCSC) webinar. “By providing those different rails to get off of the eviction process, we opened up the process, allowing for better resolutions.”2
Bacon requires that all parties appear in court to engage with one another and to access a range of services, including legal help, rental assistance, and even a settlement process to resolve issues without a court hearing. The court is part of the NCSC Eviction Diversion Initiative, a grant program that offers funding and technical assistance to help courts implement initiatives that leverage community resources to resolve housing disputes.3
Further, because poverty can be both a driver and a result of eviction, Bacon has enlisted various service providers to help individuals with basic needs. “We have resources that we can direct people to if they find themselves without a home … or if they know that they’re going to have to move ... laundry services so that they can have a place where they can wash their clothing,” Bacon said. “We have resources, through the city, where we’re providing food boxes with staple goods so that even if you’re going to be without a home for a period of time or if you have to use all your funds to go toward rent just to maintain your housing, [it gives] that little bit of a cushion where you don’t have to buy groceries, too.”
The Lawrence Township Small Claims court is one of nine jurisdictional courts in Marion County, Indiana. These courts handle roughly half of all eviction cases in the state, and Bacon hopes that in a high-volume courtroom, her innovations are creating fairness. “We try and make it a much more active and engaged process for both sides,” she said.
Endnotes
- The Pew Charitable Trusts, “How to Make Civil Courts More Open, Effective, and Equitable” (2023), https://www.pewtrusts.org/research-and-analysis/reports/2023/09/how-to-make-civil-courts-more-open-effective-and-equitable.
- National Center for State Courts, “Active Judging in Eviction Court” webinar (May 17, 2023), https://vimeo.com/829387413.
- Marilyn Odendahl, “2 Indiana Courts Receive Funding to Tackle Eviction Problem,” The Indiana Lawyer, https://www.theindianalawyer.com/articles/2-indiana-courts-receive-funding-to-tackle-eviction-problem.
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