How the Judiciary Has Driven Systemic Innovation During the Pandemic
| Author | Samuel V. Schoonmaker IV |
| Pages | 87-122 |
87
How the Judiciary Has Driven Systemic
Innovation During the Pandemic
SAMUEL V. SCHOONMAKER IV*
The COVID-19 pandemic is not the disruption courts wanted, but it
is the disruption that courts needed: to re-imagine and embrace new
ways of operating; and to transform courts into a more accessible,
transparent, efcient, and user-friendly branch of government.1
– Guiding Principles for Post-Pandemic Court
Technology, National Center for State Courts
Introduction
State courts were poised to unleash systemic innovations in late 2019,
but only if judges, courts staff, legislators, and legal professionals were
willing to embrace transformative change. Then the pandemic forced many
courthouses to close, although legal disputes continued to rage. COVID-
19 compelled practitioners and state courts to adapt in uncomfortable
and ad-hoc ways. Many courts seized the opportunity to implement
National Center for State Courts (NCSC)2 innovations, which rely heavily
on technology and problem solving, as opposed to litigation. Under
normal circumstances, such enormous and interrelated reforms may have
1. Nat’l Ctr. For State CtS. (NCSC), GuidiNG PriNCiPleS For PoSt-PaNdemiC Court
teChNoloGy: a PaNdemiC reSourCe From CCJ/CoSCa Version 1 at 1 (July 16, 2020), https://
www.pmconline.org/sites/default/les/2020-08/Guiding%20Principles%20for%20Court%20
Technology%20%281%29.pdf.
2. The NCSC was founded in 1971 as an authoritative source of knowledge and information
for state courts. It promotes the rule of law and improves the administration of justice. About Us,
Nat’l Ctr. State CtS., https://www.ncsc.org/about-us.
* Samuel V. Schoonmaker IV is a Family Law Quarterly Editorial Board member, a past
chair of the Connecticut Bar Association’s Family Law Section, an ABA Representative to the
Uniform Law Commission’s Joint Editorial Board on Uniform Family Laws, an adjunct faculty
member at the University of Connecticut, and a private practitioner in Stamford, Connecticut.
Published in Family Law Quarterly, Volume 55, Number 2, 2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
88 Family Law Quarterly, Volume 55, Number 2, 2021–2022
stalled due to funding shortfalls, institutional inertia, or concerns about
abandoning established practices. The metamorphosis is incomplete, but
already it is irreversible.
This article briey summarizes intensifying momentum within the
judiciary to adopt systemic reforms in both civil and family courts. It
highlights key ndings from a report called the Landscape of Domestic
Relations Cases in State Courts,3 and examines other ndings that the
judicial reformers minimized. Next, it considers the judiciary’s new
approach to differentiated case management based on “pathways” and
“triage”; explains how Connecticut, the rst “demonstration” state,
is incorporating new processes; and identies practical shortcomings
revealed during the initial implementation.4 Finally, it explores how the
judiciary is driving systemic innovation, and the importance of successful
effectuation.
I.AccesstoJusticeDeciencies MotivateInnovation
A. Improving Court Operations
Innovators within the judicial branch in many states have attempted
to improve access to justice and reduce unmet legal needs for decades,
with mixed results.5 Past efforts to improve access to the courts mostly
focused on human labor solutions to problems, such as by supporting
increased funding for legal services organizations or encouraging pro
3. Fam. JuSt. iNitiative, the laNdSCaPe oF domeStiC relatioNS CaSeS iN State CourtS
(2018), https://iaals.du.edu/sites/default/les/documents/publications/fji-landscape-report.pdf
[hereinafter laNdSCaPe oF domeStiC relatioNS CaSeS].
4. See infra Part III.C. Discussions in this article of Connecticut family law practice are
based on the author’s experience unless otherwise noted.
5. Two empirical studies on access to justice are particularly instructive. See generally
rebeCCa l. SaNdeFur, am. bar FouNd., aCCeSSiNG JuStiCe iN the CoNtemPorary uSa:
FiNdiNGS From the CommuNity NeedS aNd ServiCeS Study 3, 11 (Aug. 8, 2014), http://
www.americanbarfoundation.org/uploads/cms/documents/sandefur_accessing_justice_in_the_
contemporary_usa._aug._2014.pdf (nding “widespread incidence of events and situations that
have civil legal aspects, raise civil legal issues and are potentially actionable under civil law,”
and also nding that respondents were more likely to seek help to resolve disputes emerging out
of breakdown of romantic relationships than other civil matters, such as housing or debt); leGal
ServS. CorP., the JuStiCe GaP: meaSuriNG the uNmet Civil leGal NeedS oF low-iNCome
ameriCaNS 6, 31 (June 6, 2017), https://www.lsc.gov/sites/default/les/images/TheJusticeGap-
FullReport.pdf (nding that “86% of the civil legal problems reported by low-income Americans
in the past year received inadequate or no legal help,” and also nding that survey respondents
sought legal help for 48% of their problems related to custody or children, and 31% of other
family law issues).
Published in Family Law Quarterly, Volume 55, Number 2, 2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
How the Judiciary Has Driven Systemic Innovation During the Pandemic 89
bono service by lawyers.6 Past failures to improve access to justice using
traditional legal profession responses, coupled with budgetary constraints,
help explain the judiciary’s increasing willingness to consider information
technologies and new approaches.7
State courts’ exploration of emerging technologies developed toward
the end of the 20th century. In 1998, the Conference of State Court
Administrators (COSCA)8 urged member state courts throughout the
United States to join a national effort to exchange data and integrate
information systems in ways that would improve case management.9
COSCA issued a position paper on information sharing in 2002,10 followed
by joint resolutions adopted by the Conference of Chief Justices (CCJ)11
and COSCA that called for public access to electronic court records and
6. The judiciary spent many years attempting to improve access to justice while at the same
time struggling with decreasing budgets and resources. See generally Samuel V. Schoonmaker
IV, Withstanding Disruptive Innovation: How Attorneys Will Adapt and Survive Impending
Challenges from Automation and Nontraditional Legal Services Providers, 51 Fam. L.Q. 133,
154–61, 185–88 (2017).
7. See generally id. at 180–83.
8. COSCA was established in 1955 to improve state court systems. Each of the 50 states,
the District of Columbia, Puerto Rico, American Samoa, Guam, Northern Mariana Islands, and
the Virgin Islands chooses one court administrator or ofcial to participate as a member. About
COSCA, COSCA, https://cosca.ncsc.org.
9. COSCA Res. I, Integrated Justice Information Systems (Mar. 28, 1998), https://ccj.ncsc.
org/__data/assets/pdf_le/0021/23457/03281998-integrated-justice-information-systems.pdf.
The COSCA resolution partially responded to a 1996 federal requirement that states collect and
exchange data for purposes of child support enforcement. See generally Samuel V. Schoonmaker
IV, Consequences and Validity of Family Law Provisions in the “Welfare Reform Act”, 14 J.
am. aCad. matrim. law 1, 10–21 (Summer 1997) (summarizing data collection and electronic
information–sharing requirements for continuing funding of public assistance programs).
The Conference of Chief Justices (CCJ) later passed a resolution that supported adoption of
technology standards to comply with various national computer protocols and standards. CCJ
Res. 13, Implementation of Automation Standards (Aug. 2, 2001), https://ccj.ncsc.org/__data/
assets/pdf_le/0018/23463/08022001-implementation-automation-standards.pdf.
10. COSCA Res. 4, Resolution on Furthering the Court Leadership Role in Justice Information
Sharing (July 31, 2003), https://ccj.ncsc.org/__data/assets/pdf_le/0022/23746/07312003-
resolution-on-furthering-the-court-leadership-role-in-justice-information-sharing.pdf
(referencing 2002 White Paper titled “Position Paper on Court Leadership in Justice Information
Sharing”).
11. The CCJ was founded in 1949 to improve the administration of justice and organize
cooperation among state courts and judicial systems. Membership consists of the highest judicial
ofcer in each of the 50 states, the District of Columbia, Puerto Rico, American Samoa, Guam,
Northern Mariana Islands, and the Virgin Islands. CoNF. oF ChieF JuStS., https://ccj.ncsc.org.
Published in Family Law Quarterly, Volume 55, Number 2, 2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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