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Can Online 'Pajama Courts' Reshape Justice?

By RJ Vogt | May 12, 2019, 8:02 PM EDT

At any given hour of the day, someone in Utah could be wearing pajamas, sitting in bed, sipping a coffee — and handling a legal dispute over a $500 debt.

That level of accessibility, according to Utah Supreme Court Justice Constandinos Himonas, is one reason why an ongoing online dispute resolution pilot project in a Salt Lake City small-claims court could soon replace courthouses, both in the state and the country writ large.

“We’re now referring to our program as ‘pajama court,’” Himonas said. “You [can] do it at 2 o’clock in the morning, in your robe, in your slippers, from the comfort of your home.”

The judge’s high praise came Thursday at the American Bar Association and National Legal Aid & Defender Association’s annual Equal Justice Conference, hosted this year in Louisville, Kentucky.

Justice Himonas led a panel on how online dispute resolution, or ODR, can transform courts alongside Paul Embley, chief information officer of the National Center for State Courts, and Amber Ivey, manager of Pew Charitable Trusts’ civil legal system modernization team.

Together, the trio made a case for increasing usage of online dispute resolution, which Embley defined as online platforms that are hosted or supported by the judicial branch and that allow litigants to resolve disputes without ever having to enter a courtroom.

Research has shown that most Americans with civil justice issues fail to understand them as legal problems; others see courts as intimidating places that are best avoided. The few people who do report legal problems, according to the Legal Services Corporation, receive inadequate or no legal help 86% of the time.

Utah’s idea is to bring justice to the people, instead of requiring the people to seek justice.

The state is the first to launch an ODR system that can handle an entire dispute, though courts in at least 14 other states are experimenting with the concept for limited purposes in things like traffic court, panelists said. Other countries, such as Canada and China, already use ODR to handle cases ranging from small-claims court to product liability claims.

In the U.S. private sector, major online retailers as well as auction websites use ODR to settle more than 60 million disputes a year, 90% of which can be resolved without a judge or mediator, according to a 2015 paper in the ABA’s Dispute Resolution Magazine.

Speaking for Pew, Ivey noted that legal tech investments rose 713% last year — giving courts increased competition in the business of justice and adding incentives to simplify and speed up their processes.

“ODR provides an opportunity for the court to remove the cases that are low-conflict, or these cases that ... in many situations, may not need a lawyer,” she said. “You don’t need a lawyer for a $100 case with your neighbor. We shouldn’t promote this whole aggressive system of ‘let’s go to court about everything.’”

The Utah pilot is currently operational in one court and slated to expand to two more by the end of next month. Justice Himonas showed off screenshots from the mobile-friendly portal, which has been used about 1,400 times since it launched in September.

The process is mandatory, although those with disabilities or other reasons for seeking an in-court process can opt out of ODR via a one-page form. According to Justice Himonas, litigants have opted out in just 10 cases, half of which were required due to inability to navigate the system.

“People aren’t clamoring to get out of ODR — they want the ODR process,” he said.

Small-claims cases, which in Utah include disputes over $11,000 or less, begin as they always have: plaintiffs filing an affidavit with the clerk of the court. Within seven days of filing, the plaintiff must register for the ODR system. A copy of the ODR summons and claim must then be served on the defendant, who has 14 days to either create an online account or opt out of ODR.

Once both parties have appeared in the online module, a neutral facilitator can help guide negotiations over dollar amounts or agreements, writing to the parties privately or both at once.

On screen, messages from each facilitator, defendant and plaintiff appear in a specified color, similar to that of a smartphone group chat. Once an agreement on the claim is struck, both parties are able to fill out a settlement form by simply clicking buttons.

While the NCSC has yet to release its official data analysis of the Utah pilot, preliminary metrics are promising. Before ODR, the small-claims default rate was 71% and defendant engagement was 14%; now the default rate is 54%, while defendant engagement has nearly doubled, to 25%, Justice Himonas said.

He also highlighted the fact that contrary to what some might expect, the average settlement reached in ODR has actually been 5% higher than the underlying claims. And in cases where the parties elect to have the court enter a judgment, staff preparation time has been almost halved, from nine minutes to five minutes.

The Utah court system is built with Java programming and not yet open source, Embley said, though Justice Himonas noted that he hopes to share it with others in the government sector. He also said that he hopes to add Spanish language capability to the tool as part of a “phase two” of the pilot.

As for concerns that ODR could kill jobs, Ivey pointed to results from British Columbia’s small-claims ODR tool, which partly inspired aspects of Utah’s tool.

“They’ve actually increased the number of staff in that office, multiple-fold,” she said.

Ultimately, she predicted more states will adopt ODR and more people may come to expect online resolution availability from the justice system. Justice Himonas said that the same tool could be used in other courts, citing the way other states are looking at using ODR in landlord-tenant or traffic cases.

“If I get my way and our initial expectations are proven,” the judge added, “then next year, by this time, [ODR] is the way all small claims in Utah will be done, across the state. Then we’ll see what comes next.”

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.