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Equal Access to Justice
Pattern number within this pattern set:803
Donald J Horowitz
Wash State Access to Justice Tech Principles Comm
The fundamental principle of full and equal access to the justice system, particularly for those who suffer disparate barriers or are otherwise vulnerable, faces new opportunities and challenges from the advances in information and communication technologies, which can provide increased pathways for quality access but can also perpetuate or exacerbate existing barriers or even create new ones.
This pattern is based upon a trailblazing effort by the Washington State Access to Justice Board, an agency of the Supreme Court, to define principles and develop implementation strategies, means and methods, for ensuring that technological capabilities and advances are effectively incorporated throughout the state justice system in ways consistent with the fundamental principle that all persons should have equal access to justice. A recent legal needs survey had revealed that 87% of all low income people in the state who had civil legal problems were unable to secure legal help, and that residents of rural counties had substantially less access to technology-based resources than their urban counterparts. Therefore the overriding intent of the effort was to develop, implement and institutionalize principles within all justice system agencies to increase access to justice system information, resources and services for all, and especially those who most need it.
Currently, technology is creating opportunities for people to use their home or nearby library branch or community center to find out about, initiate or respond to court or other law related needs, obligations or requirements, communicate and exchange documents with their legal service provider or others in or associated with the legal system less expensively, using less time and effort, without having to travel to a central city, and with less time away from work or other necessary resources. This can be especially important for the elderly, persons with disabilities, persons with limited financial means, and those who cant afford to miss time from work for reasons of financial need or jeopardizing their employment. Similarly, a person with limited mobility or hearing may be able to get information electronically about his or her rights as a tenant; a victim of domestic violence can learn on the Internet what she can do and in fact be able to start the legal process of protecting herself. The courts and other parts of the justice system can operate more productively and less expensively, making court and legal records and information more readily available, and receive filings, fees, documents and information, all electronically.
However, the means of using these very possibilities also create the risk of worsening old barriers or erecting new barriers to access, causing greater disparities. While the opportunities described above seem positive, these innovations assume access to a computer, reasonable proficiency at using them and their necessary software programs, reading capability, fluency in English and sufficient phone or cable and electricity availability and capacity at affordable cost to support sufficient connections and streams of information and interactivity. Without all of that, those who have the tools and means, the proficiency and the necessary infrastructure available get further ahead, and those without fall further behind in having the justice system work for them. The lack of equality gets greater, not less.
On December 4, 2004, the Washington State Supreme Court became the first court in the United States, perhaps the world, to formally adopt by Court Order, a set of authoritative principles to guide the use of technology in its justice system. The stated purpose was to ensure that the planning, design, development, implementation and use of new technologies and the management of existing technologies by the justice system and associated organizations protects and advances the fundamental right of equal access to justice. Over a three-and-a-half year period, the Washington State Access to Justice Board drew on the input and involvement of a diverse group of approximately 200 people and organizations from a variety of disciplines and backgrounds to develop formal Access to Justice Technology Principles to serve as the practical operating norm for justice system organizations and entities throughout the state.
The Access to Justice Technology Principles broadly define access to justice as the meaningful opportunity to: (1) assert a claim or defense and to create, enforce, modify, or discharge a legal obligation in any forum; (2) acquire the procedural or other information necessary to improve the likelihood of a just result; (3) participate in the conduct of proceedings as a witness or juror; and (4) acquire information about the activities of courts or other dispute resolution bodies. Access to justice, moreover, must include timeliness, affordability and transparency.
Briefly paraphrased, the six Access to Justice Technology Principles are:
1. Requirement of access to justice: Introduction of technology or changes in the use of technology must not reduce access or participation and, whenever possible, shall advance such access and participation;
2. Technology and just results: The justice system shall use and advance technology to achieve the objective of a just process by impartial and well-informed decision makers and reject, minimize, or modify any use that reduces the likelihood of achieving that objective;
3. Openness and privacy: Technology should be designed to meet the dual responsibilities of the justice system of being open to the public and protecting personal privacy;
4. Assuring a neutral forum: All appropriate means shall be used to ensure the existence of neutral, accessible, and transparent forums which are compatible with new technologies
5. Maximizing public awareness and use: The justice system should promote ongoing public knowledge and understanding of the tools afforded by technology to access justice
6. Best practices: Those governed by these principles shall utilize best practices procedures or standards to guide the use of technology so as to protect and enhance access to justice and promote equality of access and fairness.
A broad-based interdisciplinary implementation strategy group then developed a set of practical strategies and initiatives to transform the principles from the words of a court-ordered statement of vision into a pervasive operational reality through the state justice system. Once the principles are truly institutionalized in justice organizations, then, as a matter of ordinary routine, the design for every new technology project would incorporate accessibility and usability and increase transparency of and information about the justice system for all users, especially those who are or may be excluded or underserved as well as those experiencing any barrier to accessing justice system services. Essential actions include: (1) Development and maintenance of a Web-based Resource Bank; (2) Initial and ongoing communication to and training for justice system and associated agencies about the ATJ Technology Principles and available resources for implementation; (3) Demonstration projects; (4) Public awareness and usable information. Additional requirements address policy-level governance and guidance as well as ensuring the continuing relevance, effectiveness and use of the Principles over time.
A great deal has been said and written about what has come to be called The Digital Divide, both domestically and internationally. Respect for and use of the rule of law is an essential way to move to a less divided, more equitable society and world. Accessible quality justice for all individuals and groups is a recognized worldwide value that crosses cultural as well as geographic lines. Meaningful access to justice can and does empower people to be part of creating their own just societies. This effort is the first such undertaking, and can provide a useful example that can be adapted and used not only in other places, but in other sectors of basic public need, such as access to health care, access to food, access to safety, and other essentials.