You’re Still Muted

Significantly different litigant introductions and explanatory instructions were observed in small claims sessions across courthouses, and across clerks in the same courthouse.

Without standardization during the early stages of a virtual small claims session, litigants’ feelings of fairness, comprehension of the small claims process, or ability to present viable defense are not guaranteed.

There were significant differences in the way courts addressed the lack of attendance from plaintiffs, as compared to defendants.

The ability for a Lawyer for the Day (LFD) volunteer to interact organically with individual defendants, to introduce themselves and explain their services on their own terms, is lost in a virtual setting. The consequences of not receiving such advice could result in thousands of dollars of debt for low-income court users, along with the other potentially devastating collateral consequences.

How LFD programs were introduced, whether or not the litigants were individually asked if they wanted to work with the LFD program, and any active encouragement of the use of the program may have a significant impact on the percentage of defendants who are likely to use LFD services at any given session.

Those who took advantage of a Lawyer for the Day program in this virtual context consistently described these programs as “helpful” and that their case outcome was fair.

Half of small claims litigants attended their sessions via video, and about half of litigants were unable to (potentially due to a lack of technological capacity) or chose not to do so (potentially due to a challenge of presenting a “court appropriate” background or limited minutes available for data usage).

During dial-in only sessions, both participants and court staff are unable to tell who is speaking at any given time.

Small claims sessions across the board were plagued with problems related to poor volume and difficulties muting and unmuting; in more than half of all sessions observed, distractions, confusion, or other problems due to muting and unmuting were reported.

Multiple litigants attended their virtual small claims hearings from work or from their car, further indicating that a significant number of litigants may lack a quiet and private space to attend virtual court.

Recommendations to improve user experience and court efficiency include: giving more protective notice(s) to defendants of their pending cases; providing clear, plain-language instructions on how to participate by phone or video; providing opportunities at the beginning of the session and before the session starts for litigants to learn more about the process of their virtual hearing; training court staff, magistrates, and judges on how to best support litigants participating in remote hearings; having at least one court staff member in addition to the clerk magistrate attend all remote hearings; and tracking case data, including the number of small claims debt collection cases filed, outcomes, and the percentage of defendants that fail to appear.

Recommendations to improve user experience and court efficiency include: giving more protective notice(s) to defendants of their pending cases; providing clear, plain-language instructions on how to participate by phone or video; providing opportunities at the beginning of the session and before the session starts for litigants to learn more about the process of their virtual hearing; training court staff, magistrates, and judges on how to best support litigants participating in remote hearings; having at least one court staff member in addition to the clerk magistrate attend all remote hearings; and tracking case data, including the number of small claims debt collection cases filed, outcomes, and the percentage of defendants that fail to appear.

Recommendations to support Lawyer for the Day (LFD) programs include: encouraging all courts that do not currently have an LFD program to contact local legal service providers and inquire whether they would be interested in establishing one; ensuring that LFD program staff are able to introduce themselves and explain their services after the majority of litigants have joined the session; allowing virtual LFD programs to frequently re-introduce themselves as new litigants join the session, in English and any other language required by attendees; having clerk magistrates running sessions with LFD programs present explicitly ask each defendant if they want to work with an LFD before soliciting further information; allowing continuances for litigants who wish to retain an LFD program; and adopting a proposed Consumer Debt Standing Order related to LFD.