Arkansas Access to Justice

By Amy Dunn Johnson

2020 will undoubtedly go down in history as a year of profound disruption. For the first time in a century, we reckoned with a deadly worldwide pandemic that would fundamentally upend everything we once considered normal. Despite the enormity of the harm that the pandemic has caused, it has also forced rapid change in how we function as a society. Some of these changes are undeniably positive: adaptations that our legal system is making in response to this crisis represent a likely tipping point that will improve the efficiency, speed, and affordability with which justice is dispensed.

The legal system was already headed for transformation in the 1990s with the widespread adoption of online legal research and email.1 The expense of legal representation and the ubiquity of the internet, social media, and “DIY culture” have hastened the pressure for change within the legal system.2 As a profession, however, we have been slow to adapt such that it is the exception—rather than the rule—that individuals with civil legal problems turn to the court system or even lawyers for solutions.3

For nearly two decades, Access to Justice Commissions around the country, including the Arkansas Commission, have urged courts and lawyers to embrace technology and other innovations to ensure that everyone with a civil legal problem is able to receive some form of effective assistance. Still, the pace of change has remained slow.4

COVID-19, however, has prompted swift adaptation. On March 17, the Arkansas Supreme Court suspended most in-person hearings, urging courts to use “all available technologies” to continue court business.5 By the end of the month, many judges were holding video hearings using Zoom. Remote notarization and witnessing were temporarily authorized by Executive Order,6 and a number of courts requested and received expedited e-filing capability.

As the pandemic has worn on, many judges across the state have fully embraced Zoom as an effective tool for conducting hearings and bench trials, with features that allow for easy presentation of evidence, the exclusion of witnesses when the Rule is invoked, the use of “rooms” for counsel to privately confer with their clients, and “channels” where participants only hear the proceedings in their preferred language. The time and expense involved in traveling long distances for attorneys, parties, witnesses, and translators is no longer a factor when proceedings can be conducted using Zoom.

Several Arkansas courts have also taken creative approaches to ensure that litigants who lack internet access or a device with sufficient minutes, data, or capability can still participate. At least one court provides wireless internet that is accessible from its parking lot, and several others allow litigants to come into the court building and use a court-issued device to participate from a private area outside the courtroom.

When our legal system does resume regular operations, these adaptations will become a feature of the new “normal.” Many judges will continue to conduct Zoom hearings for routine matters. Legislation to permanently authorize remote notarization and witnessing is under development, and the Arkansas Access to Justice Commission is studying alternatives to traditional means of service. Looming case backlogs will prompt courts to more efficiently triage and dispose of cases, and more jurisdictions will be motivated to convert to e-filing.

Still, challenges remain. The complexities involved in conducting full jury trials may well be beyond what Zoom can effectively support. Broadband internet access is unavailable in many areas of the state.7 Consistent, public information about changes in court operations during the pandemic is largely lacking.

These advancements hold great promise to bring efficiencies and cost-savings to a system that is notoriously expensive and difficult to navigate. As we reflect on how best to harness the opportunities presented in the wake of COVID-19, it is incumbent on us to ensure that these advancements increase the public awareness of how our courts work and everyone’s ability to access them.

Endnotes:

1. Richard Susskind, The End of Lawyers (2010). 2. See John M. Greacen, Amy Dunn Johnson and Vincent Morris, From Market Failure to 100% Access: Toward a Civil Justice Continuum, 37 U. Ark. Little Rock L. Rev. 551, 552 (2015); see also Pew Charitable Trusts, Coronavirus Accelerates Court Modernization Efforts, at https:// www.pewtrusts.org/en/research-and-analysis/ articles/2020/06/18/coronavirus-acceleratesstate-court-modernization-efforts. 3. Rebecca Sandefur, Access to What?, Daedalus (Winter 2019) at 49. 4. For a list of the Arkansas Access to Justice Commission’s accomplishments, see https:// arkansasjustice.org/our-work/accomplishments/. 5. In re Response to the COVID-19 Pandemic (March 17, 2020), https://www. arcourts.gov/sites/default/files/articles/ COVID-19-PC.pdf. 6. Arkansas Executive Order No. 20-12 (Mar. 31, 2020), https://governor.arkansas. gov/our-office/executive-orders/. 7. Internet Access in Arkansas: Quick Stats, at https://broadbandnow.com/Arkansas (last visited May 5, 2020).

Amy Dunn Johnson is the Executive Director of the Arkansas Access to Justice Commission and Foundation.