Courts face an increasingly diverse population of litigants. The various systematic expectations, needs, preferences and interests that characterize litigants of different ages, genders and cultural backgrounds challenge courts to design procedures that provide access to justice and procedural justice to all of them. These challenges are exacerbated in a reality of overburdened courts that serve high rates of self-represented litigants (SRLs) with only limited legal aid budgets. This article suggests that online courts create new effective and feasible pathways for making courts more accessible for diverse litigant populations.
Recently launched in multiple jurisdictions, online courts allow litigants to access courts and complete all litigation procedures on a dedicated digital platform. They enable litigants to diagnose their legal issues; formulate and file a claim; present evidence; exchange information and negotiate a settlement agreement with the opposing party; communicate with a judge; and obtain a final judgment. Most online courts are designed for use by SRLs. They present them with simplified procedures that are meant to be easily navigable. Thus, SRLs follow a series of legal mini-steps that are delivered through web-forms, interactive wizards, document generating software, file repositories, messaging tools, and video-conferencing applications.
While many celebrate online courts as a development that improves access to justice, little scholarly attention has been given to the incorporation of diversity considerations in their design. This article begins to close this gap. It discusses how the transition from the physical setting of a brick-and-mortar and paper-based court to a digital court environment generates a new pathway for increasing diversity in courts: a strategy of “diversity by design.” The term refers to the ability of online court designers to embed in the online platform dynamically adjustable interface design features and procedural options in a manner would best-serves the distinct pre-identified needs and preferences of litigants (for example, based on age, gender or cultural background). In effect, it means to use the design of the platform in order to support SRLs’ informed and reflective decision-making process.
This proposition builds on literature regarding human centered civil justice design, digital choice environments, and culturally diverse digital interfaces. Accordingly, it shows how fairly minor adjustments in the interface design of online courts (for example, color or amount of features on the screen) could significantly improve the performance and trust of people who use online platforms, arguably also courts.
Subsequently, the article discusses the tension that creating personalized court experiences generates: while the differentiation of court user-experiences may improve access to justice and procedural justice for individual litigants, it may harm the public-life political function of courts. If litigants end up going through different, separate, court experiences rather than fully shared ones then we may weaken the role of courts as a collective space for articulating social values. Therefore, the article proposes to distinguish between personalized interface design and personalized procedures or outcomes. It argues that the former entails minimal harm, as long as its goal is to support the diversity of courts, and specifically, SRLs’ ability to understand relevant information and available options, make informed choices and legal actions.