April 19, 2017
At its most basic, access to justice ensures all people have the ability to meaningfully participate in the justice system regardless of income, race, nationality, language, education, gender, legal representation, or any other characteristic. Traditionally, access to the courts was achieved by legal representation. And yet, Illinois' court system is seeing an unprecedented number of self-represented litigants. According to preliminary Administrative Office of the Illinois Courts (AOIC) data, 93 of Illinois' 102 counties report 50% or more of civil cases have at least one self-represented litigant. Additionally, 23% of Illinois residents do not speak English as their primary language and require interpreters to fully access the courts.
While many low-income residents can seek assistance from civil legal aid and pro bono organizations, demand for free or low-cost legal assistance far exceeds existing supply. Census data shows almost one in three Illinois residents living in or near poverty. Across the state, there is one legal aid staff attorney for every 7,227 low-income residents, making it simply impossible for many of those litigants to get legal representation. It is not only those who live in poverty who are unable to afford attorneys. Many working class families are also priced out of the private attorney market or live in communities with very few private attorneys available.
The role of the judiciary has been impacted by increasing numbers of self-represented litigants and limited English proficient litigants. In 2016, the AOIC conducted a survey of judges and circuit clerks and learned that 86% of circuit court judges and 98% of circuit clerks report that cases with self-represented litigants are harder to manage and pose additional challenges. The current design of the judicial system does not help judges or other court staff meet the needs of the public they are facing today.
How, then, can the courts serve the shifting needs of the public without bringing the gears of justice to a grinding halt? The Illinois Supreme Court Commission on Access to Justice (ATJ Commission) – along with the AOIC and other stakeholders – is spearheading many initiatives to improve access to justice in Illinois by preparing judges and court staff to better serve the changing court users, and to improve the user experience in navigating the state court system. A brief discussion of four initiatives follows.
The first initiative is the development of language access resources and language assistance services through recruiting and training interpreters to achieve court certification, promoting the use of qualified interpreters in court proceedings, and building awareness in limited English proficient communities about language access in the courts. Court interpreting is a sophisticated and demanding profession that requires many more skills than simply being bilingual.
Unqualified interpreters can present incorrect evidence; affect the reliability of testimony; mislead judges, juries, and attorneys; and worse yet, cause litigants to unknowingly waive their rights. To address these significant risks to the justice system, the AOIC Civil Justice Division administers a national court interpreter certification program to assess language proficiency and interpreting skills. Those who pass the certification program are placed on a public database, the Illinois Language Interpreter Registry, which be found here. In addition, the AOIC and ATJ Commission train judges and court personnel on the importance of providing qualified interpreters in civil and criminal cases.
To better serve the growing number of self-represented litigants, the ATJ Commission Standardized Forms Committee is developing, automating, and translating standardized, plain-language legal forms and other resources for areas of law frequently encountered by self-represented litigants. A self-represented litigant using plain language legal forms is able to understand relevant law, follow procedure, and advance or defend against lawsuits without legal representation. The use of plain language forms decreases the burden on judges and court personnel because self-represented litigants make fewer errors and have a clearer understanding of court processes and procedures. Approved statewide court forms and instructions can be found here.
Like standardized court forms, limited scope representation is another cost effective tool for court users of modest means. Limited scope representation allows a person to retain an attorney for a portion of a case but not for its entirety, which significantly reduces their overall legal costs. In 2013, the Illinois Supreme Court authorized several new rules to clarify and expand the role of limited scope attorneys who can now act nimbly – entering and exiting cases quickly to meet client needs – without being burdened by the cumbersome process of withdrawing from a case under the general appearance rules. More information on the limited scope rules can be found here.
Lastly, the ATJ Commission is exploring ways to increase access to the justice system through remote technologies. Remote technology can more efficiently and effectively connect litigants and attorneys with the court system by using phone and video technology. For example, Supreme Court Rule 185 permits telephonic appearances and Supreme Court Rule 241 allows videoconferencing in certain circumstances and a statewide, standardized form suite is being developed to promote the use of remote access. Remote technologies are reliable, efficient, and cost-effective and do not compromise the quality of communication or court proceeding.
The face of our judicial system is changing. No longer do the majority of civil cases involve disputes with legal counsel representing each side's interest. Nor is it true that all litigants speak English fluently. As poverty rises and wages stagnate, many Illinois residents are unable to afford attorneys to represent them in important areas of civil law. These changes profoundly challenge the judicial system. While none of the initiatives described above, individually, are the panacea, each promotes, facilitates, and enhances access to justice and, in turn, fair and swift administration of justice. The ATJ Commission, the AOIC and other justice partners will continue to develop these initiatives and many more to ensure all Illinois residents have full and meaningful access to the judicial system.