How Court Personnel Can Take an Active Role in Administering Justice

Steps for making civil courts more equitable

Fact Sheet
Projects: Courts & Communities
Share
Twitter
Facebook
LinkedIn
Email
Print
How Court Personnel Can Take an Active Role in Administering Justice

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.

  • Work with the court counsel and access to justice staff to develop guidance or update rules on what court personnel are allowed to do to help court users, such as helping users complete forms.
  • Regularly—at intervals set by court leadership and research staff—capture court user feedback on interactions with court personnel and the help they receive to identify areas for improvement and determine whether new guidance is required.

Who’s involved:

Internal Experts:

  • Access to justice
  • Clerks
  • Judges
  • Leadership
  • Legal counsel
  • Self-help
  • Researchers

Court users
  • Illinois has outlined a policy for first circuit court personnel about how to provide court users with information about rules, terminology, procedures, and legal resources and referrals; how to review forms; and other practices.
  • Colorado’s chief justice issued a directive for clerks, family court facilitators, self-represented litigant coordinators, and others explaining “safe harbor” options within and outside of the court system, such as providing users with information about community resources, and helping them prepare court orders.
  • The Texas Justice Court Training Center developed a training on customer service in rural justice courts that outlines the boundaries between customer service, legal advice, and legal information and includes an interactive session where participants must identify activities that cross into legal advice and scenarios. The center also published guidelines for clerks and court personnel.
  • New Mexico has a scribing program to help litigants who cannot fill out forms themselves because of limited English proficiency, disabilities, low literacy, and certain other reasons.

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.
  • Work with judges, legal counsel, and legal stakeholders to develop statewide guidance or update ethics rules on how to ask questions that elicit necessary information while remaining impartial and to ascertain how judges understand those rules; offer trainings and bench cards that include questions judges can ask litigants.
  • Work with judges to develop guidance about how to confirm that court users understand payment plans and settlement terms.
  • Regularly capture court user feedback on whether users felt they were able to present all facts of the case, even those they initially thought were irrelevant, and make improvements based on that input.
  • Develop videos that judges can play in lieu of explaining processes and procedures.

Who’s involved:

Internal Experts:

  • Judges
  • Leadership
  • Legal counsel
  • In 2023, the Michigan courts revised their rules for landlord-tenant proceedings to require the court to ensure that tenants understand their rights and explicitly task judges with determining how to present the relevant information.
  • CourTools Access and Fairness survey offers a list of questions courts can ask for gathering feedback from users about whether the court appropriately handled their legal issue and whether they felt heard and treated fairly.
  • The National Council of Juvenile and Family Court Judges has bench cards for judges about how to ask questions related to health, home life, and school in child welfare proceedings.
  • The American Bar Association’s model code of judicial conduct offers guidance on maintaining impartiality when asking questions and on the circumstances under which a judge may initiate, permit, or consider ex parte communications (interactions between one party and the judge that occur without notifying the other party) when making decisions.

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.
  • Train all staff on how to document language needs, about the available resources for users, and how to use telephonic interpretation to communicate with people with limited English proficiency.
  • Train judges and court personnel about why using certified or qualified interpreters is important and why relying on family members or bilingual staff is insufficient.
  • Survey court staff about whether they feel they have sufficient time to ensure that users receive needed language services and whether other workflows or deliverables should be adjusted to allow the time required to work with interpreters and non-English-speaking court users.
  • Train staff to always proactively offer language assistance services; develop customized training resources, such as bench cards and online modules; ensure trainings include opportunities for hands-on practice; and include material on identifying and combating bias in oneself and co-workers.

Who’s involved:

Internal Experts:

  • Access to justice
  • Clerks
  • Judges
  • Leadership
  • Wisconsin has a public bench card outlining how judges should work with interpreters.
  • The New Mexico courts offer an online interactive language access basic training, available in Spanish and English, that covers ethical and legal obligations, as well as best practices for working with court users with limited English proficiency.
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).
  • Partner with local legal aid organizations or pro bono attorneys to develop lawyer-for-a-day initiatives.
  • Pursue rule changes or pilot programs to allow nonlawyer legal professionals (e.g., paralegals) to provide limited legal assistance.
  • Launch or expand a virtual or physical self-help center where court users can receive free legal information, service referrals, and, depending on court rules, assistance completing forms.
  • Dedicate virtual or physical space for private conversations between lawyers and their clients.
  • Promote legal assistance and mediation programs, such as including information with the summons and complaint, having judges share information from the bench, and posting information on court websites and social media accounts.

Who’s involved:

Internal Experts:

  • Access to justice
  • Leadership
  • Researchers
  • Self-help

External Experts:

  • Legal stakeholders

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.
  • Develop referral protocols and relationships with community agencies to address underlying problems (e.g., connecting a mother who lost her job with rental assistance to prevent eviction, keep her child in school, and avoid child welfare involvement).
  • Create a pilot program for courtroom navigators or other justice workers to connect court users with social service resources.
  • Collect feedback from court navigators, self-help staff, mediators, and volunteers about which aspects of their work are most helpful to court users without lawyers and which could be scaled up, reduced, or improved.
  • Collaborate with community partners to develop and review public-facing information and outreach materials for plain language, readability, accessibility, and translation into various languages.

Who’s involved:

Internal Experts:

  • Leadership
  • Researchers
  • Self-help

External Experts

  • Community partners
  • Legal stakeholders
  • Michigan’s 54-A District has a formal relationship with a nonlawyer eviction diversion counselor who screens cases, schedules financial counseling appointments, connects tenants with homelessness services and shelters, and alerts clients about food and clothing drives.
  • The Las Vegas Justice Court’s eviction diversion program requires tenants to file an answer form that doubles as a screening tool, which court staff members use to connect individuals to county-level social services, as needed.
  • The Judicial Council of California developed a human trafficking toolkit and several bench cards for judges, including details to help judges recognize trafficking and contact information for victim services organizations throughout the state.
  • NCSC developed best practices for connecting litigants with eviction diversion resources and for determining whether tenants and landlords should engage with these programs before or after a case is filed.
  • A judge in Indiana has actively worked to connect tenants who have faced multiple evictions with rental assistance and other resources and even took her efforts outside of the courtroom by knocking on tenants’ doors.
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.
  • Develop checklists for clerks to quickly assess the sufficiency of the complaint, service, and other documentation provided.
  • Train and empower clerks to review documentation and alert judges to improper or incomplete filings.
  • Add a flag to the case management system to note when documentation is not filed or ensure that the e-filing platform rejects filings without required documentation.
  • Allocate sufficient resources to support adequate staffing in clerks’ offices.
  • Require plaintiffs to confirm the validity of the case to defendants and the court as part of the initial filing and notification processes.

Who’s involved:

Internal Experts:

  • Clerks
  • Judges
  • Leadership
  • Legal counsel
  • Researchers

External Experts:

  • Legal stakeholders
  • Researchers
  • All debt complaints in Massachusetts and North Carolina must include a copy of the original debt contract, each assignment or sale of the debt, and an itemized accounting of the amount owed.
  • The La Crosse County Circuit Court in Wisconsin has a sufficiency of complaint checklist that the clerk uses to review documentation provided with debt filings, which helps ensure consistency across cases.

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).
  • Remove requirements that defendants file an answer before the court schedules a hearing.
  • Assess whether court rules or processes financially penalize defendants for participating in their court case, such as assessing mandatory fees.
  • Use video conferencing tools to increase flexibility for users to attend court proceedings.

Who’s involved:

Internal Experts:

  • Access to justice
  • Judges
  • Leadership
  • Legal counsel
  • Researchers

External Experts:

  • Legal stakeholders
  • Researchers
  • In 2020, the Utah Bar Foundation found that court rules may encourage default judgments because when debt collection defendants engaged in their cases, plaintiffs could seek $400 in attorneys’ fees in addition to the debt.
  • In 2023, the Minnesota State Bar Association found that “confusing and costly” processes may affect defendants’ participation in their cases and that in District Court, where defendants are generally required to file an answer and pay a $285 fee before a hearing is scheduled, 82% of cases ended in default judgments, compared with 54% in small claims cases.
  • Arizona courts adopted presumptive standards for remote hearings and are sharing their approach with other states.

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.
  • Provide guidance on court rules and processes related to ensuring “proportional discovery” (i.e., that the extent of required disclosures should align with the needs of the individual case), selecting case management pathways, and using alternative dispute resolution (e.g., arbitration, mediation), and notice.
  • Provide case management training for judges and court staff.

Who’s involved:

Internal Experts:

  • Clerks
  • Judges
  • Leadership
  • Legal counsel
  • Self-help

External Experts:

  • Legal stakeholders
  • Partly in response to a 2009 survey in which more than half of lawyers and judges reported that the court “occasionally or almost never” enforced disclosure rules, Arizona courts revamped their case management processes and standards, including implementing proportional discovery.
  • The Texas courts adopted expedited rules to reduce the time and cost of discovery for court users. IAALS and NCSC evaluated the change and found high compliance with the new rules and fewer motions related to discovery disputes, on average.

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.
  • Require that process servers use GPS and photo verification of the time and place of service and provide guidance for clerks on reviewing that documentation.
  • Require servers or plaintiffs to submit read receipts for service conducted via email, social media, or other electronic communications methods.
  • Coordinate with federal, state, and local agencies that keep address information, such as law enforcement and credit bureaus, to ensure that courts and plaintiffs use valid contact information when notifying defendants.

Who’s involved:

Internal Experts:

  • Clerks
  • Judges
  • Leadership
  • Researchers

External Experts:

  • Legal stakeholders
  • NCSC produced a brief and discussion related to modernizing how litigants are notified about court cases, which include recommended rule changes to support defendant participation.
  • New York City requires process servers to use GPS to document their location when attempting to deliver documents.
  • Massachusetts requires that plaintiffs use a verified address.

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.
  • Provide guidance to clerks on directing people to information about requesting waivers or ability to-pay calculators
  • Develop resources and guidance to help judges make ability-to-pay determinations, such as questions to ask about eligibility for benefits.
  • Develop a public-facing calculator to help court users see how long they would need to pay off a judgment at a given interest rate and make informed decisions.

Who’s involved:

Internal Experts:

  • Clerks
  • Judges
  • Leadership
  • Legal counsel
  • Researchers
  • Washington state’s Legal Financial Obligation calculator for criminal cases—which uses open source code—asks users about their income and public benefits they receive to help court staff compute monthly payments and consider ability to pay. State court leaders are working to replicate the calculator in Hawaii and hope for further expansion.
  • North Carolina’s judgment calculator uses the principal amount, court costs, interest rate, payoff data, and issue date to calculate a monthly plan..

Do eligible court users receive fee waivers?

How to measure it:

Analyze bulk court data to determine whether waivers are being issued.
  • Revise rules and processes to waive fees and other costs based on whether the user receives means-tested public assistance, has income below a certain threshold, or is eligible for legal aid.
  • Automate ability-to-pay determinations by connecting court systems with other state income databases (e.g., tax authority, social services).
  • Develop rules that mandate or expedite fee waivers for clients of civil legal services organizations.

Who’s involved:

Internal Experts:

  • Leadership
  • Legal counsel
  • Researchers
  • As of 2020, Connecticut, Florida, Georgia, Illinois, Kentucky, Mississippi, Rhode Island, and Washington had codified standards that presume that a person who meets certain thresholds, such as receiving government benefits, is unable to pay court fines and fees.
  • Maryland courts grant fee waivers at the beginning of a case; waivers are automatic for court users who are represented by legal aid.
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

  1. 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.
  2. National Center for State Courts, “Active Judging in Eviction Court” webinar (May 17, 2023), https://vimeo.com/829387413.
  3. 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.