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Access to Justice Technology Principles (Full Text & Comments)

As adopted by the Washington State Supreme Court December 3, 2004 (view Court Order).

You may also want to download the ATJ Technology Principles (multiple languages available)

An Initiative of the Washington State Access to Justice Board

Table of Contents

Preamble
Scope
I. Requirement of Access to Justice
II. Technology and Just Results
III. Openness and Privacy
IV. Assuring a Neutral Forum
V. Maximizing Public Awareness and Use
VI. Best Practices

Preamble

The use of technologies in the Washington State justice system must protect and advance the fundamental right of equal access to justice. There is a particular need to avoid creating or increasing barriers to access and to reduce or remove existing barriers for those who are or may be excluded or underserved, including those not represented by counsel.

This statement presumes a broad definition of access to justice, which includes the meaningful opportunity, directly or through other persons: (1) to assert a claim or defense and to create, enforce, modify, or discharge a legal obligation in any forum; (2) to acquire the procedural or other information necessary (a) to assert a claim or defense, or (b) to create, enforce, modify, or discharge an obligation in any forum, or (c) to otherwise improve the likelihood of a just result; (3) to participate in the conduct of proceedings as witness or juror; and (4) to acquire information about the activities of courts or other dispute resolution bodies. Further, access to justice requires a just process, which includes, among other things, timeliness and affordability. A just process also has “transparency,” which means that the system allows the public to see not just the outside but through to the inside of the justice system, its rules and standards, procedures and processes, and its other operational characteristics and patterns so as to evaluate all aspects of its operations, particularly its fairness, effectiveness, and efficiency.

Therefore, these Access to Justice Technology Principles state the governing values and principles which shall guide the use of technology in the Washington State justice system.

Comment to “Preamble”

Access to justice is a fundamental right in Washington State, and the State Supreme Court has recognized and endeavored to protect that right in its establishment of the Access to Justice Board. From an understanding that technology can affect access to justice, these Access to Justice Technology Principles are intended to provide general statements of broad applicability and a foundation for resolving specific issues as they arise. The various parts of this document should be read as a whole.

A broad definition of the terms used herein is necessary to ensure that our underlying constitutional and common law values are fully protected. The terms used in this document should be understood and interpreted in that light.

These Principles do not mandate new expenditures, create new causes of action, or repeal or modify any rule. Rather, they require that justice system decision makers consider access to justice, take certain steps whenever technology that may affect access to justice is planned or implemented, avoid reducing access, and, whenever possible, use technology to enhance access to justice.
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Scope

The Access to Justice Technology Principles apply to all courts of law, all clerks of court and court administrators, and to all other persons or parts of the Washington justice system under the rule-making authority of the Court. They should also serve as a guide for all other actors in the Washington justice system.

“Other actors in the Washington justice system” means all governmental and non-governmental bodies engaged in formal dispute resolution or rulemaking and all persons and entities who may represent, assist, or provide information to persons who come before such bodies.

“Technology” includes all electronic means of communication and transmission and all mechanisms and means used for the production, storage, retrieval, aggregation, transmission, communication, dissemination, interpretation, presentation, or application of information.

Comment to “Scope”

This language is intended to make clear that the Access to Justice Technology Principles are mandatory only for those persons or bodies within the scope of the State Supreme Court’s rulemaking authority. It is, however, hoped and urged that these Principles and their values will be applied and used widely throughout the entire justice system.

It is also intended that the Access to Justice Technology Principles shall continue to apply fully in the event all or any portion of the performance, implementation, or accomplishment of a duty, obligation, responsibility, enterprise, or task is delegated, contracted, assigned, or transferred to another entity or person, public or private, to whom the Principles may not otherwise apply.

The definition of the word “technology” is meant to be inclusive rather than exclusive.
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I. Requirement of Access to Justice

Access to a just result requires access to the justice system. Use of technology in the justice system should serve to promote equal access to justice and to promote the opportunity for equal participation in the justice system for all. Introduction of technology or changes in the use of technology must not reduce access or participation and, whenever possible, shall advance such access and participation.

Comment to “Requirement of Access to Justice”

This Principle combines promotion of access to justice through technology with a recognition of the “first, do no harm” precept. The intent is to promote the use of technology to advance access whenever possible, to maintain a focus on the feasible while protecting against derogation of access, and to encourage progress, innovation, and experimentation.
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II. Technology and Just Results

The overriding objective of the justice system is a just result achieved through a just process by impartial and well-informed decision makers. The justice system shall use and advance technology to achieve that objective and shall reject, minimize, or modify any use that reduces the likelihood of achieving that objective.

Comment to “Technology and Just Results”

The reference to a “just process” reaffirms that a just process is integral to a just result. The reference to “well-informed decision makers” is to emphasize the potential role of technology in gathering, organizing, and presenting information in order that the decision maker receives the optimal amount and quality of information so that the possibility of a just result is maximized.
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III. Openness and Privacy

The justice system has the dual responsibility of being open to the public and protecting personal privacy. Its technology should be designed and used to meet both responsibilities.

Technology use may create or magnify conflict between values of openness and personal privacy. In such circumstances, decision makers must engage in a careful balancing process, considering both values and their underlying purposes, and should maximize beneficial effects while minimizing detrimental effects.

Comment to “Openness and Privacy”

This Principle underlines that the values of openness and privacy are not necessarily in conflict, particularly when technology is designed and used in a way that is crafted to best protect and, whenever possible, enhance each value. However, when a conflict is unavoidable, it is essential to consider the technology’s effects on both privacy and openness. The Principle requires that decision makers engage in a balancing process which carefully considers both values and their underlying rationales and objectives, weighs the technology’s potential effects, and proceed with use when they determine that the beneficial effects outweigh the detrimental effects.

The Principle applies both to the content of the justice system and its operations, as well as the requirements for accountability and transparency. These requirements may mean different things depending on whether technology use involves internal court operations or involves access to and use of the justice system by members of the public.
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IV. Assuring a Neutral Forum

The existence of a neutral, accessible, and transparent forum for dispute resolution is fundamental to the Washington State justice system. Developments in technology may generate alternative dispute resolution systems that do not have these characteristics, but which, nevertheless, attract users who seek the advantages of available technology. Participants and actors in the Washington State justice system shall use all appropriate means to ensure the existence of neutral, accessible, and transparent forums which are compatible with new technologies and to discourage and reduce the demand for the use of forums which do not meet the basic requirements of neutrality, accessibility, and transparency.

Comment to “Assuring a Neutral Forum”

Technologically generated alternative dispute resolution (including online dispute resolution) is a rapidly growing field that raises many issues for the justice system. This Principle underlines the importance of applying the basic values and requirements of the justice system and all the Access to Justice Technology Principles to that area, while clarifying that there is no change to governing law.

This Principle is not intended in any way to discourage the accessibility and use of mediation, in which the confidentiality of the proceeding and statements and discussions may assist the parties in reaching a settlement; provided that the parties maintain access to a neutral and transparent forum in the event a settlement is not reached.
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V. Maximizing Public Awareness and Use

Access to justice requires that the public have available understandable information about the justice system, its resources, and means of access. The justice system should promote ongoing public knowledge and understanding of the tools afforded by technology to access justice by developing and disseminating information and materials as broadly as possible in forms and by means that can reach the largest possible number and variety of people.

Comment to “Maximizing Public Awareness and Use”

While assuring public awareness and understanding of relevant access to justice technologies is an affirmative general duty of all governmental branches, this Principle expressly recognizes that the primary responsibility lies with the justice system itself. As stated in the Comment to the Preamble, none of these Access to Justice Technology Principles, including this one, mandates new expenditures or creates new causes of action. At the same time, however, planners and decision makers must demonstrate sensitivity to the needs, capacities, and where appropriate, limitations of prospective users of the justice system.

Communicating the tools of access to the public should be done by whatever means is effective. For example, information about kiosks where domestic violence protection forms can be filled out and filed electronically could be described on radio or television public service announcements. Another example might be providing information on handouts or posters at libraries or community centers. Information could also be posted on a website of the Council for Public Legal Education or of a local or statewide legal aid program, using an audible web reader for persons with visual or literacy limitations. The means may be as many and varied as people’s imaginations and the characteristics of the broad population to be reached.
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VI. Best Practices

To ensure implementation of the Access to Justice Technology Principles, those governed by these principles shall utilize “best practices” procedures or standards. Other actors in the justice system are encouraged to utilize or be guided by such best practices procedures or standards.

The best practices shall guide the use of technology so as to protect and enhance access to justice and promote equality of access and fairness. Best practices shall also provide for an effective, regular means of evaluation of the use of technology in light of all the values and objectives of these Principles.

Comment to “Best Practices”

This Principle is intended to provide guidance to ensure that the broad values and approaches articulated elsewhere in these Access to Justice Technology Principles are implemented to the fullest extent possible in the daily reality of the justice system and the people served by the justice system. The intent is that high quality practical tools and resources be available for consideration, use, evaluation, and improvement of technologies in all parts of the justice system. This Principle and these Access to Justice Technology Principles as a whole are intended to encourage progress, innovation, and experimentation with the objective of increasing meaningful access to quality justice for all. With these goals in mind, the development and adoption of statewide models for best practices is strongly encouraged.
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