Usability Is Free: Improving Efficiency by Making the Court More User Friendly

Court managers will need a broader array of service-delivery strategies as courts face increasing demands and fewer resources. The standard solution, to hire more staff as intermediaries, is becoming increasingly infeasible, and the user-friendly court, relying more on court users to participate in service delivery, will become a more important strategy.

John A. Clarke
Executive Officer/Clerk, Los Angeles Superior Court

Bryan D. Borys
Assistant to the Executive Officer, Los Angeles Superior Court

2011

The Usability Problem and the Intermediary Solution

Courts are not designed for the convenience of end users. As a result, American state trial courts rely heavily upon intermediaries to help people use the system.  Attorneys (at least for those litigants with access to representation) translate real-world problems into legal arguments and pleas for relief and help litigants navigate the court process. Paralegals and self-help Web sites (e.g., Nolo.com) provide generic explanations of court processes without the specificity or expertise of attorneys. And, of course, friends and family provide a sort of last resort for many people who cannot obtain professional help.

Another group of intermediaries are the court staff who help people file papers, direct them to the right courtroom, process and distribute records of proceedings, provide mandate reports to other agencies, assemble jury panels, provide language interpretation, etc. Indeed, the history of court administration can be read as a history of the increasing professionalization—and expansion—of this group.

Over the past few decades, American trial courts have seen an explosion in the breadth of their responsibilities: from a focus on recordkeeping as clerk of court, to administration of a complex administrative support system (Friesen, Gallas, and Gallas, 1971), to support for managing the flow of cases through the court (Solomon and Somerlot, 1987), to a sudden recent burgeoning of responsibilities, many of which are new to the justice system (Flango, Campbell, and Kauder, 2007):

•   Health and social-welfare services, as in drug courts, homeless courts, mental health courts, housing courts, etc. (Berman and Feinblatt, 2005);
•   Language and cultural services (Martin, Weller, and Price, 2008);
•   Legal training and advice (Zorza, 2002);
•   Public education (Persin, Fallahay and Fruin, 1999); and
•   The supervision and care of those deemed unable to care for themselves (i.e., in probate guardianships and in foster care).

In each of these areas, commentators suggest that courts respond with new intermediaries—such as Casey and Hewitt’s “case level service coordinators” (Casey and Hewitt, 2001). Zorza (2002) identifies changes in physical space, process, and procedure, and other changes that can make the process more user friendly—but also suggests that “each litigant could be assigned a ‘personal clerk’ in the office that manages submissions” (Zorza, 2002: 47).

After all, if you want it done right, then do it yourself—or hire a good staff person.

There are several problems with such a heavy reliance on staff intermediaries:

•   Such bureaucratic solutions tend toward “goal displacement,” wherein staff become more concerned with formal rules and procedures than substantive outcomes, such as justice and fairness (Merton, 1968). The solution to such problems is typically more rules and procedures, which leads to a vicious circle of organizational complexity (Meyer, 1985).
•   Court staff acting as intermediaries raises questions about both the proper and feasible role of the courts. As the Bureau of Justice Assistance noted after conducting a focus group of court administrators from large, urban courts: “Some focus group participants felt that courts were being pushed to be the gatekeepers for social services or health problems that were more appropriately handled by the relevant systems involved, such as social services and health care” (Bureau of Justice Assistance, 2008).
• The typical intermediary solution often creates “sidecar” programs that remain outside normal court operations. The literature on problem-solving courts, for instance, has long advocated for the “integration” and “institutionalization” of these programs, but the calls continue, since the goal remains far out of reach of most courts (Rottman, 2000; Casey and Rottman, 2001).
• People are becoming more accustomed to, and in many cases, demanding of, “do-it-yourself ” options, not only because they tend to be cheaper, but also because they offer more flexibility and freedom than relying on a salesperson, clerk, etc.
• Finally, state trial courts can no longer afford staffing-heavy solutions. The “new normal” for the American economy and most units of government will only exacerbate the chronic underfunding of the state trial courts (Flango et al., 2009; ABA Coalition for Justice, 2009).

Nonetheless, the challenges of unrepresented litigants and the dysfunctions of social, penal, and other justice-related systems continue. Courts are rapidly approaching a usability crisis, where the honest and well-intentioned efforts of people to pursue legal remedies will result in chronic failure of the system to serve them. If courts continue to respond to increasing demands by increased staffing, the most likely outcome will be a Kafkaesque system of overworked bureaucrats who lack the resources to maintain minimally acceptable levels of access to justice in the courts’ mission-critical areas.

Disintermediation Through Design for Usability

The efforts of many businesses and government agencies to “disintermediate”—to remove, or radically redesign, the intermediary function—suggests a path to courts adjusting to the conflicting pressures of access to justice in the post-recession world.  Evans and Wurster (2000) provide a useful guide. They begin with the “trade-off between richness and reach” (Evans and Wurster, 2000: 73).  Richness refers to the ability of a service to fit the specific needs of a particular customer.  When I go to my neighborhood bookstore, and have a long conversation (high bandwidth) with a bookseller who knows me well (can customize her responses) and we have a chance to chat (interactivity), I come out of the bookstore with the book I really want.

The Richness/Reach tradeoffBut recently, online stores such as Amazon.com are driving traditional “brick-and-mortar” bookstores out of business—or at least driving them online. Critics of such online disintermediation strategies point to the user-hostile nature of many automated services—such as interactive voice-response systems, where the helpful face-to-face contact of a well-trained person at the window is replaced by an impersonal and tedious system.

But these critics fail to recognize that disintermediation has two distinct modes. Evans and Wurster point out that the trade-off between richness and reach—the simple truth that you cannot have an in-depth conversation with every customer at once—can be attacked in two distinctive ways.

Consider the evolution of the financial industry: The first phase of disintermediation found firms moving down the trade-off curve. Thus did e-Trade begin to displace traditional firms offering mutual funds, simply through offering online stock trading. Many potential investors left firms such as Merrill Lynch for e-Trade, choosing not to pay the time and expense of a relationship with a full-service brokerage.  This was unashamedly an increase in reach at the expense of richness.  e-Trade never aspired to provide the kind of high-bandwidth, specialized, and interactive service one could get from a couple hours with one’s own broker.

Had the online brokerage business stopped there, Merrill Lynch might still be flourishing (had they survived the unrelated meltdown of the global financial sector). Building on top of the e-Trade experience, new investment firms learned how to package rich, but easy-to-access financial information on their Web site.  Schwab was able to provide not only cheap and easy trades, but also much of the information that an investor would need to make an informed trading decision.  They did not merely trade richness for reach—they improved the trade-off.

The first strategy, a broadcast strategy, is the sort that is roundly criticized: interactive voice-response systems, for instance, that give the same message to everyone and demand the user navigate on their terms. The newer online services, however, pursuing a usability strategy, do not merely push great loads of information on users. They help people navigate; they package information in more useful ways.

Many courts are pursuing the broadcast strategy, for instance by putting their traffic payments online. Often, these changes can be made by purchasing off-the-shelf products that fit (relatively) seamlessly into the existing court organization.

Those courts pursuing usability innovations, by contrast, are finding a much richer, more user-satisfying—and often cheaper—set of services. In many areas, courts are placing less reliance on a concierge model of service provision and a greater reliance on court users to get things done.

Usability Strategies: From Full Service to Self-Help to Self-Service

Relying more on court users goes beyond the purchase of an interactive-voice response system. It demands fundamental changes not only to court processes, but also to the mindset of court personnel—especially managers.

Self-Help

The classical example of self-help is, of course, court-based self-help for unrepresented litigants. In California, the first self-help response was intermediation: the hiring of attorneys who, in one-on-one sessions with unrepresented litigants in child support proceedings, provided great richness with little reach (State of California, 1996: Assembly Bill 1058).

Over time, courts recognized the impossibility of providing one-to-one service at the needed scale. Two forms of broadcast strategies emerged: One approach packages the frequently asked questions on paper and online to make the answers more easily accessible to a wider number of people. A second broadcast strategy provides help through clinics and workshops, rather than one-on-one. Both of these methods were explicitly recognized as compromises in the richness of help provided. Both of these strategies leave intact a hard-to-navigate system.

In the Los Angeles Superior Court, while those broadcast methods are still used, the court has developed a usability-based self-help system, in which litigants learn enough about a simplified family-law process to navigate for themselves. Workshops are tailored specifically to certain phases in typical dissolution cases; litigants move through the workshop sequence as their cases progress. A common, simplified procedural language is used in the courtroom and taught in clinics. Clerk’s staff work in the self-help center, easing the filing process. Some bureaucratic mysteries are removed by checklists, which show, for instance, the most common reasons why the clerk’s office rejects filings.

Typically, the courtroom (and, to a lesser extent, the clerk’s office) is the center of the universe; self-help staff struggle with litigants to adjust to them. In Los Angeles, the courtroom and clerk’s offices are being re-centered on the self-help center to make the process more usable.

Self-sufficiency is not for every court user. The court maintains a repertoire of service strategies: standard intermediaries (e.g., face-to-face help from attorneys through legal-services partners), broadcast-based self-help (e.g., a self-help Web site; Family Law Information Centers) and the usability-based disintermediation described above. This allows the court to provide the right level of assistance to the right court user.

User Model

Juror Management

Traditional jury management systems are based upon the presumption that every juror is trying to escape jury duty and to thwart the efforts of court staff to control recalcitrant jurors. Thus, we treat prospective jurors like cattle: roping them in, penning them up, and sending them off in small groups.

The user-friendly jury management system emerging in the Los Angeles Superior Court helps prospective jurors do their duty without compromising the needs of the jury system:

•   Online juror orientation allows jurors to comply with orientation requirements in the comfort of their own homes, rather than in a jury assembly room.

•   Juror-controlled online postponement of service allows jurors to select their own date of service (within preexisting constraints reflecting the needs of the court).

•   Elimination of the jury assembly room, through direct summoning to the courtroom, both saves assembly-room staffing and eliminates useless wait time for the juror.

Each of these innovations not only makes serving jury duty easier and more pleasant, but also saves staff time.

But each of these innovations required a change in management approach, since each requires the jury manager to trust jurors—and to create a more foolproof system. For instance, the schedule of available online postponements is limited, reflecting the anticipated needs of the system for jurors. That system, and the ability to summon to the courtroom, required data and systems that allow the jury commissioner to reliably project jury needs into the future.

Usability strategies involve more than simply dumping tasks online. We can identify seven new types of understanding that such strategies typically require of court managers:

1.   Understanding of the needs and desires of court users;
2.   Understanding users’ abilities—and sorting (or supporting self-sorting) of users into different service levels, each with appropriate supports;
3.   Understanding of the court’s processes, so as to build in foolproofing and safeguards that will ensure that users are guided in the right directions;
4.   Understanding of legal constraints, so as to choose which user activities are allowable, and which must be prohibited;
5.   Having a greater appreciation of options for where and when to deliver services (e.g., online, at the user’s convenience);
6.   Being able to redesign court processes to greater reflect the needs of court users, relative to court personnel; while
7.   Avoiding the ubiquitous temptation to fill in the usability gaps by hiring staff.

When court managers do this, their thinking changes—particularly in terms of maintaining control over court users. A wider range of service options appears:

•   Not only the traditional full service: investing in staff intermediaries to help and to maintain control over users;
•   But also self-help options that help users help themselves; and
•   Self-service options that let users do things themselves.

Putting one’s faith in self-sufficient court users is not for every service (for instance, only on TV would Mayberry sheriff Andy Taylor allow a criminal defendant to lock himself up). And it is never done without careful consideration of user abilities and motivations; demands on staff skills and motivation; and risk management issues.

Conclusion

Meeting the challenges of expanded missions and demanding court users with fewer resources will require a broader set of tools than the traditional approach of hiring more court staff. Disintermediation need not involve degradation of service. Reengineering processes for greater usability not only can save staffing costs, but also enhance the court user’s experience. Do-it-yourself services are not for everyone, but courts would do well to expand the range of types of service they offer, from full service to self-help to self-sufficiency. To do this, however, involves more than the adoption of new programs; it involves fundamental changes in how court managers and their employees view their own responsibilities and how they view court users.