Case Study: The Justice Dialogue

Case study

The Justice Dialogue

Key takeaways

Trend Report 2021 – Delivering Justice / Case Study: The Justice Dialogue

Author: Kanan Dhru, Justice Innovation Advisor

Introduction

The HiiL virtual Justice Dialogue took place on Wednesday, 20th April 2022 from 09:00hrs-13:00hrs CEST.

High-level participants from Nigeria, Kenya, Uganda, the Netherlands and USA participated in this Dialogue, which served as a basis for HiiL’s plenary “People-centred justice: how to make it happen systematically?” taking place on 1st June at the World Justice Forum. All the participants have significant expertise on issues at the forefront of applying people-centred justice approaches. The names and designations of the participants are shared in the table at the end of this report.

HiiL’s policy brief “Delivering people-centred justice: Rigorously” served as a basis for this Dialogue. The brief focuses on developing an integrated approach on people-centred justice (PCJ) and details five main investments of people-centred justice programming that we see emerging: data, evidence-based practice, game changing justice services, enabling environment as well as engagement and accountability. 

The  Justice Dialogue built on this premise and created an interactive conversation about implementing and scaling the people-centred approach in the justice space. In particular, it focused on the following questions for the participants to share their thoughts and experiences:

Focus questions:

The Dialogue started with an opening speech by Dr Sam Muller, CEO and HiiL and a presentation on HiiL’s approach to people-centred justice by Prof (Dr) Maurits Barendretch. This presentation can be accessed here.  The Dialogue aimed to get inputs of the participants on the four main hypotheses – which serve as the enablers and impediments to people-centred justice:

Enablers and impediments to people-centred justice:

Stakeholders shared their thoughts and experiences on the above questions in small breakout sessions. Later, they shared key ideas from the breakout sessions with the larger group.  

Key takeaways from the Dialogue

1. Why is it important to invest in systematically improving dispute resolution systems in a people-centred way?

The following key takeaways emerged during the Dialogue on the above question: 

2. What are the enablers and impediments for the changemaking justice practitioners to make people-centred justice happen?

Most stakeholders validated the four hypotheses and emphasised that the enablers are also impediments. The same also applies to different components of PCJ.

2.1 Data:

2.2 Mindset:

2.3 Trust in Public Systems:

2.4 Incentives:

2.5 Technology is a strong enabler for change.

2.6 Making a strong case:

3. How can we ensure the broad uptake of innovations in the justice space? What are some of the best practices?

3.1 Scaling the innovation landscape:

3.2 The role of community justice services:

3.3 What is needed to make people-centred justice work?

3.4 Nurturing and investing in an ecosystem for change: 

Summary

We had a number of hypotheses about what makes people-centred justice happen: time and resources, knowledge, incentives and trust. A big enabler is conversations like these that bring a diverse group of people together to share different perspectives.

Three headlines

1. Make the case (if you want to make it work, you have to make the case) 

 2. Bring the right stakeholder together (it’s change management)

3. Creating the enabling environment.

List of the participants

We had a number of hypotheses about what makes people-centred justice happen: time and resources, knowledge, incentives and trust. A big enabler is conversations like these that bring a diverse group of people together to share different perspectives.

Akingbolahan Adeniran

Partner, Awodi & Co.
Former Attorney General, Ogun State, Nigeria

Maha Jweied

Non-Resident Fellow
Center on International Cooperation, New York University, USA

Paul Kimalu

Director, Planning and Organisational Performance
Judiciary Kenya

Rose Wachuka

Chief of Staff, Office of the Chief Justice of the Republic of Kenya and President of the Supreme Court of Kenya

Jane Adongo

Senior Sociologist
Uganda Law Reforms Commission

Folusho Obienu

Director of Citizens Rights
Ogun State, Nigeria

Justice Khobo

Innovative Justice Reform Judge
Kaduna State, Nigeria

Chinedu Agu

Secretary of Imo State Bar Association,
Imo State, Nigeria

Natalie Anne Knowlton

Director, Special Projects
Institute for the Advancement of the American Legal System (IAALS), USA

Gerald Abila

Founder
BarefootLaw, Uganda

Angela Lungati

Executive Director
Ushahidi, Kenya

Odunoluwa Longe

Co-founder
TLP Advisory, Nigeria/UK

Authors

Authors

Authors

Prof Dr. Maurits Barendrecht, Director Research & Development

Isabella Banks, Justice Sector Advisor

Juan Carlos Botero, Justice Sector Advisor

Manasi Nikam, Knowledge Management Officer

Kanan Dhru, Justice Innovation Researcher

About HiiL

HiiL (The Hague Institute for Innovation of Law) is a social enterprise devoted to user-friendly justice. That means justice that is easy to access, easy to understand, and effective. We will ensure that by 2030, 150 million people will be able to prevent or resolve their most pressing justice problems. We do this by stimulating innovation and scaling what works best. We are friendly rebels focused on concrete improvements in the lives of people. Data and evidence is central in all that we do. We are based in The Hague, City of Peace and Justice.

The Hague Institute for Innovation of Law
Muzenstraat 120,
2511 WB The Hague
The Netherlands

Tel: +31 70 762 0700
E-mail: info@hiil.org
www.hiil.org

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Methodology

Methodology

HiiL specialises in rigorous programming for people-centred justice. Our mission is in line with the magnitude of this challenge: prevent or resolve 150 million pressing justice problems by 2030. 

We believe that data on what works, combined with innovation, can transform the justice sector. Towards more effective services, improved financial sustainability and more popular support. 

Since 2011, we have worked on justice innovation projects, always taking the perspective of the user. We created a Justice Needs and Satisfaction Survey that has informed justice leaders in 20 countries. HiiL scouted and helped accelerate 100 promising justice services in state capitals and rural areas. Ministries and justice leaders from countries developed action plans and transformation strategies, facilitated by HiiL.  

This experience has resulted in a systematic programming approach for people-centred justice. We believe this is needed in a field full of statements of principle, where innovation rarely moves beyond pilot projects that reach a few thousand people.

With the Dutch Ministry of Foreign Affairs (MFA), HiiL is negotiating a proposal to assist the justice sectors in a number of African countries. Each of them has high impact justice problems and a poorly resourced legal system. We also work in South Africa, the US, Ukraine and the Netherlands, countries where justice innovation is flourishing. The Hague, the international city of peace and justice, provides inspiration. Our partners in the countries where we operate are organisations of justice practitioners, justice innovators and justice leaders. 

This report is built on this experience. 

Case Study: CrimeSync

Case study

CrimeSync

Author: Kanan Dhru, Justice Innovation Researcher

CrimeSync exemplifies the individual grit and determination in attempting to change the domain of justice delivery. CrimeSync is the brainchild of Sorieba Daffae, a young lawyer and changemaker navigating the complexities of criminal justice institutions in his country Sierra Leone. The software platform brings different agencies together under one roof as they work on criminal justice collectively. CrimeSync is the winner of HiiL’s Annual Innovating Justice Challenge 2019 (Justice Hub 2019).

The data and facts presented in this case study were collected during conversations between HiiL and Soreiba on October 1st and 15th 2020, respectively. The text has been condensed and edited for clarity.

Problems and impacts

How and to what extent has CrimeSync measured and mapped the most prevalent justice problems as the first step towards achieving people-centred justice?

Sorieba Daffae wanted to combine his background in technology and law to work towards solving societal problems, especially access to justice and the rising rate of crime throughout Sierra Leone. 

The police in Sierra Leone release nationwide crime statistics every year. Soreiba analysed data of the past five years to identify patterns. He also referred to reports such as the Afrobarometer and one of the UNODC’s Analysis on Crime. HiiL provided support in  fine tuning classification of crimes. HiiL’s Justice and Needs Satisfaction survey conducted in multiple countries in Africa showed crime as one of the most prevalent justice problems experienced by people. This helped to confirm significant issues in the criminal justice system and how it responds to crime. 

For Sorieba, the question that emerged from the data involved institutional capacity. Is the system simply not equipped to deal with a large volume of cases or is the system insufficiently dealing with the cases?

He started to get acquainted with the system itself first by speaking to professionals within the justice system to understand the institutional structure. Sorieba visited prisoners and interacted with officers to know the inner workings of the prisons and the courts. These conversations led to a detailed understanding of the system and pointed to Soreiba that, in fact, the underperforming criminal justice system can attend to 50% more volume. The challenge to be solved: help make the system more efficient. 

He saw that there was no repository that recorded details of the case. The officer investigating it would make it difficult for victims, complainants and even the police officers to keep a track of the status of cases. 

After studying the system thoroughly for 6 months, he identified the blockages. The available data showed that the number of pre trials was roughly always around 52%. More than half of the inmates in prisons were stuck without adequate legal recourse. 

In many occasions, the inmates were already in prisons for more time than the highest duration of punishment possible under the crime in which they were booked. This troubled him greatly and decided to do something about this problem.

Defining and monitoring outcomes

How and to what extent has CrimeSync researched and identified the outcomes that people expect from justice processes in the target population?

Sorieba analysed what different functionaries of the criminal justice system such as prison officers, police, judges to identify objectives wanted to achieve. The insights helped him to outline the activities and processes that would need streamlining if the objectives had to be achieved. Accordingly, he designed a software called CrimeSync, a platform to record and monitor data in the prison, which would outline the number of inmates, the alleged crime, time spent in the jail and a number of other details. 

He then conducted step-by-step training with the prison officers for seamless execution of the processes. For instance, if a prisoner officer’s objective is to allow seamless identification of inmates that need to go to court the next morning, Sorieba would ask the officer the steps that the prisoner would have to go through. In this way, he gave control to the justice functionaries in the design of CrimeSync. It became a participatory process, in which functionaris of the criminal justice system were actively involved. To cultivate a sense of ownership of CrimeSync among the justice workers, Sorieba would say that:

This is your initiative. Technology is just the facilitator in this process, the rest is up to you.

How and to what extent has CrimeSync determined whether existing justice processes deliver these outcomes and allow people in the target population to move on?

Before designing the product, Sorieba referred to crime statistics published annually by the police in Sierra Leone. He conducted analysis using data that dated back upto 5 years to find the gaps in the justice system in Sierra Leone.

To assess whether statistics align with experiences of persons in the justice system, he conducted visits to the prisons in the country. Over there, he interacted with prison officers and unearthed tragic stories of inmates who were imprisoned in the jail without even a fair trial and had ultimately served their prison sentence as a result of the delay in the trial process. The data, coupled with stories that emerged from the prison system, helped Sorieba determine that existing justice processes were falling short of people’s expectations. 

How and to what extent has CrimeSync created a system for monitoring whether new, people-centered justice processes deliver these outcomes and allow people in the target population to move on?

To measure its impact on the system, CrimeSync examines if the number of cases closed and the number of under-trial prisoners reduced over time. 

Unfortunately, data on the time taken to resolve a case prior to implementation of CrimeSync is not available. So there is no benchmark against which it can measure the improvement brought about in the time required to resolve a case. CrimeSync conducted preliminary research to measure the time taken to clear a case in a paper-based system but it was a rough study that did not give clear results. 

However, Crimsync collects feedback from its users (the prison authorities in this case) to understand if it improved the efficiency and quality of life of the functionaries of the criminal justice system.

Evidence-based solutions

How and to what extent has CrimeSync introduced interventions that are evidence-based and consistently deliver the justice outcomes that people in the target population look for?

Consider:

According to Sorieba, CrimeSync has helped reduce the prison population in Sierra Leone by 30%. But it’s not just about numbers but it’s about personal stories of individuals who were lost in the system. CrimeSync identified people who were in prisons for petty crimes or trivial matters. For instance, a Kenyan woman was mistakenly imprisoned. She was in prison for 3 months. The Crimsync team was conducting checks with some partners who are engaged in advocacy, that’s when they discovered her. When the authorities realised this mistake, her case was taken over immediately and she was released. One of the imprisoned boys lied to the police about his age, told them he was 16/18, but really he was 14. The platform has been able to bring data that was not available before, in front of the authorities and many people have benefited from this. 

With the help of the CrimeSync software, the prison management system categorizes criminals by doing an assessment, called as violence risk assessment. It is a scientific tool that’s a part of CrimeSync. It measures the profile of the prisoners so that all petty criminals are not put together with hard core criminals. 

How and to what extent has CrimeSync used outcome-based monitoring to continuously improve these interventions and replace interventions that have proven ineffective?

To measure its impact on the system, the software examines if the number of cases closed and number of prisoners under-trial has reduced. Unfortunately, data on the time taken to resolve a case prior to implementation of the CrimeSync software is not available. So there is no benchmark against which it can measure the improvement brought about in the time required to resolve a case. CrimeSync conducted preliminary research to measure the time taken to clear a case in a paper-based system but it was a rough study that did not give clear results. However, the software collects feedback from its users to understand if CrimeSync improved the efficiency and quality of life of the functionaries of the criminal justice system.

Innovations and delivery models

How and to what extent has CrimeSync scaled their people-centered service delivery model to deliver justice outcomes for a larger target population?

Sorieba and his team built Enterprise Architecture deliverables. They wrote 4 sets of documents, the first one is about business architecture. This document profiles the roles and responsibilities of all stakeholders: the police constable, superintendent, the judge, chief justice, registrar of office. Each of these documents is 165 pages. It’s a granular document. It details every process for instance evidence management and how the minister of justice receives information from police. Sorieba documented these steps with the help of judges. It was a year-long process. These documents provide an overview of the criminal justice system to people who are not familiar with it. Then he replicated what he piloted. It worked seamlessly. It’s been appraised by so many people across the world, including Interpol that they are working the software now. It’s a locally-made product of international standards. 

CrimeSync is trying to get the intellectual property rights but they are covered by confidentiality agreements with partners and local registrations. So far, they have filed for 28 patents.

CrimeSync has been piloted in two prisons: Pademba prison and a female correctional centre in Freetown. 

There are only two separate detention facilities for women in Sierra Leone, the largest of which is the Freetown female correction centre. It houses 90 women and their children (1). These prisons deal with the biggest offenders in Sierra Leone (Mahtani and O’Gorman 2018). Both of them account for 51% of the prison population in the country. It took Sorieba a year to implement CrimeSync in the 2nd prison, after finishing with the first. As of now, the software is used in all 21 prisons across the country. 

To ensure that justice workers outside of the prison system also can benefit from the services it provides, CrimeSync is conducting pilots with paralegals in various communities. Through its recently launched app, Paralegals can use CrimeSync to manage cases: record cases, survivors. 

One of the organisations uses this platform to profile the victim: name, contact information, medical information, hearing details if they are supposed to go to court, take pictures of evidence and store them. They are deploying it for various organisations. And they call it Crimesync-mini. This app is being funded by the Open Society Foundation.

Sorieba has given a demo of the product to 8 French speaking countries in the African Union. Right now, the team of CrimeSync is also discussing how to expand its services to other legal jurisdictions such as common law and civil law. Its making efforts to expand geographically as well as sectorally. 

How and to what extent has CrimeSync funded their service delivery model in a sustainable way?

Sorieba developed the software with the intention of selling it to clients for free and then charging them for value added services and other featured services on the platform. 

The Government of Sierra Leone invested in the prototype of Crimesync. There are two sources of revenue. First is the government. Currently, Sorieba and his team are trying for the government to pay for the services that platform provides. 

The organisation has also received funding from international stakeholders such as UNDP, DFID, Open Society Foundation, HiiL and EU. The international actors are not a stable source of income. At times, they bring in a lot of money, at times, none. 

Sorieba engaged with Google in Ghana. Google is an entrusted authority with what they can do with AI in predictive analysis, where the next crime will take place, who the criminals are. They want to inject some more AI into it so we are trying to work something out with them. 

The team is trying to design services for private practitioners to diversify its source of income, through the parent organisation: Fix Solutions

To what extent has CrimeSync leveraged the following sustainable financing strategies?

The government of Sierra Leone pays for some of the services. But the organisation is facing challenges in terms of being sustainably financed.

The justice space is not commercialised. Sustainable funding is a challenge. How to get the government to fund these initiatives, if someone can help us in creating a model on that, it would be great. Medical sector, education sector have evolved in a way that private players have become important stakeholders in the field. But justice is stuck.

Fix Solution, the parent organisation, is a for profit company. It is a software development company that works across sectors. It handles issues other than crime. It has developed a travel portal, tools needed to resolve the Covid-19 crisis among other projects. The initiative is turning out to be lucrative. This for profit company helps CrimeSync in staying afloat, especially by paying salaries of staff members. 

Sadly for CrimeSync, many organisations, people and government officials like the idea. They say it is very innovative and much needed but they are not willing to pay for it. 

CrimeSync gets revenue through maintenance from all the institutions it servers and some organisations subsidizing the platform. It also receives donor funding but the main source of funds is mostly the revenue generated from the system itself. 

It now plans on extending its services to private law firms as they need help in managing their basic cases and setting internal processes.

Enabling environment

How and to what extent have regulatory and financial systems created/enabled by the government supported CrimeSync and made it possible for this service/activity to scale?

Direct quote from Sorieba,  “Someone asked me “In 5 years time, what can go wrong that will derail your innovation?” My answer would be that I don’t want CrimeSync to be a surveillance tool. This is the biggest fear that I have. Such a tool can be misused in many ways and we need to find a way of managing this problem.”

How open is the government to an evidence based approach?

Direct quote from Sorieba, “The government is not averse to everything, it’s about how you convey a message to them. If you say that the police are wasting resources, then such a statement carries a connotation. The empathy with which you convey messages to those in the system matters. We have to walk in the shoes of the police inspector. The people who are in charge of the system are not averse to change, they are not bad people. The way I present matters. I have to have a dialogue with them to give feedback. It is important to involve those in the system in the process of change and let them be the owner of the initiative. When they say CrimeSync is Sorieba’s initiative, I say no it is yours.”

How and to what extent have the outcomes-based, people-centered services delivered by CrimeSync been allowed to become the default procedure?

CrimeSync software is now being included in the training programs offered to the upcoming batches of new police recruits. The judges are also required to use it. The software is more or less embedded in the system to a significant extent.

How and to what extent has CrimeSync stimulated (or benefitted from) investment into justice research and development?

The innovation has stimulated the following research and policy action:

CrimeSync has proven to be catalytic in increasing usage of data among policy makers in the space of the criminal justice system in Sierra Leone. The software creates a Dashboard in consultation with stakeholders such as the Chief Justice, Vice President incharge of national security, ministers, head of police, and national security. The indicators on the Dashboard are developed in consultation with what the stakeholders would like to see. The Dashboard acts as a repository of statistics on crime and justice and features detailed data on the profile of the criminals as well as the victims, how to financially optimise the functioning of prisons by identifying prisoners who are adding burden on the infrastructure of the prisons, and a few other themes. 

Data is also collected on the overall system as well. For example, when it comes to the economy of justice, Sierra Leone spends 8.9 million dollars in major prisons across the country. They spend this money to guard, feed and house the prisoners. Some of these prisoners have committed traffic offences that are worth around 200 dollars, but the expenditure of keeping those prisoners is around 2000 dollars. Data such as this prompts action. It also makes it possible to analyse prisoners from the parameters of gender, economic and social or for example, educational backgrounds in understanding the type of crime committed. 

The innovation has benefitted from the following research and policy action:

Benefitted from:

Leadership and pathways

How and to what extent have justice sector leaders’ skills and collaborations enabled/hindered CrimeSync to increase access to justice by delivering the outcomes people need at scale?

CrimeSync has legal ambassadors such as lawyers, judges, police officers who promote the use of technology and citizen’s engagement in the legal field. The organisation is trying to bring private practitioners on board and get them to lobby for CrimeSync.

How and to what extent has CrimeSync contributed to/benefited from new high-level strategies or pathways towards people-centred justice in Sierra Leone?

Benefited from: 

CrimeSync has proved to be catalytic in increasing usage of data among policy makers. It is creating a Dashboard in consultation with stakeholders such as the Chief Justice and other justice leaders as well as policy makers. These stakeholders suggested indicators that they would like to see on the Dashboard. The Dashboard acts as a repository of statistics on crime and justice in Sierra Leone. It features data on gendered crime, how to financially optimise the functioning of prisons by identifying prisoners who are adding burden on the infrastructure of the prisons, and a few other themes.  

Contributed to: 

According to Sorieba,

To what extent has CrimeSync contributed to/played a role in a broader paradigm shift towards people-centered justice?

Data collected by CrimeSync has highlighted larger socio-economic problems that plague Sierra Leone. Imprisonment of women for non-criminal matters is one such problem. The collected data by the software shows that women in Sierra Leone are often arrested for being unable to repay debt and other such reasons where they are unable to meet their financial obligations. They are booked under the offence of ‘fraudulent conversion.’ CrimeSync identified one region in the country that accounts for 39% of fraudulent conversion cases. Over 85% of them are women. Sorieba is taking up the case of these women with the Finance Ministry. He proposed the solution that there is a need for cash transfers among communities that will prevent women from falling in the debt-imprisonment trap. As a result, the Ministry of Finance is taking cash transfers into consideration in the financial plan. 

How has COVID-19 affected CrimeSync?

The attention of the justice sector institutions in Sierra Leone has been redirected to protecting the public health emergency protocols and or legislations. There is reduced reporting of crimes as access to the police during this pandemic appears to be limited. The use of the fingerprint component of Crimesync in prisons and police has been suspended to avoid contact between subjects. The organisation had plans to expand to other locations in the country but they are now stalled due to the pandemic.

How has CrimeSync adapted to the pandemic?

A single case was recently detected in the biggest detention facility (with more than 1,500 inmates). The CrimSync team has had to work from home, which has brought on additional challenges of aligning processes and maintaining productivity. In a move to adapt to the new rules and regulations announced to contain the spread of Covid-19, the organisation is enhancing its mobile products. SMS campaigns with a partner (OSIWA) on sexual and gender based violence to targeted communities have also been organised. CrimeSync is also rolling out value added service products to support citizens’ reporting of crimes.

The majority of female prisoners are arrested for minor, petty offences such as theft, loitering, disorderly behaviour or debt. These laws are vague, poorly defined and disproportionately affect the poor. Many women spend excessive time in prison waiting for their trial to be heard or serving sentences simply because they cannot afford to pay the alternative fine (Mahtani and O’Gorman 2018).

Case Study: LegalZoom

Case study

LegalZoom in the US

Trend Report 2021 – Delivering Justice / Case Study: LegalZoom in the US

Author: Manasi Nikam, Knowledge Management Officer

Introduction

The traditional justice system often fails to meet the everyday legal needs of people.  To bridge this gap, the people-centred justice movement emphasises on delivering outcomes that people want to their legal problems. LegalZoom, a technology-based venture, prioritises the needs of the underserved sections of society and provides effective and user-friendly solutions to the most typical and common legal problems. 

LegalZoom is an online legal services provider based in the United States of America. LegalZoom’s goal is to ‘make legal help accessible to average Americans’ (LegalZoom no date.-a). It provides legal documents to small businesses and individuals without requiring them to hire a lawyer. To small businesses, it offers documents required for business formation, business name registration, intellectual property (copyrights, patents). To individuals, the company offers documents required for personal use such as wills, uncontested divorce, power of attorney, name change and prenuptial agreements (Shipman 2019). Since 2010, the company has offered legal plans in which customers receive lawyer-provided advice (hereafter termed as legal services), again for a relatively modest fee (LegalZoom n.d.-a). 

Established by law school graduates Brian Lee and Brian Liu, along with Edward Hartman- an internet entrepreneur and litigator Robert Shapiro, LegalZoom has become a forerunner of legal innovation in the US. It has served over 4 million customers to date (LegalZoom n.d.-a). It is the largest provider of legal services to small businesses as well as largest filer of trademarks, having filed over 250,000 trademarks, in the USA (Chowdhury 2017). The company estimates that an American citizen uses its forms to write a will every three minutes (Minkoff 2019). LegalZoom’s network of lawyers are eligible to serve clients in all 50 states in the USA (Chowdhury 2017). The company’s simple but unconventional approach to resolving ordinary people’s legal problems and its large customer base make it particularly well-suited for this case study on how the private sector can pave the way for people-centred justice.

How does LegalZoom work?

LegalZoom offers online legal help to people in the form of legal documents and advice. It offers several types of legal documents to customers based on their needs. First, the customer is required to indicate the type of document he or she needs. After that, a software asks the customer to answer a series of questions specific to the legal document requested and to assess the individual’s needs, marital status, location. Based on the answers provided by the customer, the software adds or skips questions (McClure 2017). 

The final product of this process is a customised document that addresses the individual’s specific needs. An employee of LegalZoom then reviews the document to check for spelling, grammar, punctuation and checks for overall consistency and completeness (LegalZoom n.d.-b). The finalised document is then sent to the customer or the relevant government department via private shipping carriers, USPS or electronic delivery. Along with the finalised document, customers also receive detailed instructions and information on next steps. Once the document reaches the specified destination, the customer is notified (Ciulla 2018). This self-help service is accompanied by an option of getting help from a legal professional who will undertake the documenting work on behalf of the customer (LegalZoom n.d.-c). 

Along with the document preparation service, LegalZoom also offers individuals and small businesses legal advice from lawyers on a subscription basis. This allows subscribers  to select a lawyer from LegalZoom’s network of lawyers and consult with him or her for 30 minutes for the duration of the plan.

In LegalZoom’s Business Advisory Plan, the customer receives advice on contracts and business agreements, copyrights, trademarks and other intellectual property protections, personal legal matters including property, family law and estate planning. The subscription plan is available for 6 months or one year at a price of 31.25 USD per month. The Legal Advantage Plus plan offers customers advice on financial issues such as bankruptcy, contracts, legal agreements and lawsuits, employment issues including termination, compensation disputes and employment agreements, family matters and estate planning for a monthly sum of 11.99 USD (LegalZoom n.d.-d). 

This sets LegalZoom apart from existing legal service providers. The company emerged as an alternative to traditional legal service providers and introduced efficient, affordable legal services for the benefit of small business owners and individuals in the USA. 

Problems and impacts

How and to what extent has LegalZoom measured and mapped the following as a first step towards people-centred justice?

When facing a legal problem, most Americans either seek the help of a lawyer, look for advice from friends and family members or turn to legal aid services who offer legal assistance to low income groups. Those who do not have the financial resources to tackle their legal problem and are not eligible to receive help from legal aid professionals fall through the cracks. LegalZoom addresses the legal needs of this section of the population who lie in the middle of the socio-economic spectrum (C. Rampenthal and J. Peters, personal communication, October 1, 2020).  

Today, several internet based legal service providers exist to provide businesses and individuals essential legal documents at a reasonable price. These include Rocket Lawyer, Avodox, Patentbot, Incfile and UpCounsel. However, back in early 1999, when LegalZoom was founded,  few online legal service providers of its kind existed. 

The founders of LegalZoom, Liu and Lee, identified a gap in the transactional needs of people when the two would be frequently approached by friends and family for advice on preparing legal documentation. This led him to the realisation that the lack of sophisticated but affordable legal documentation is one of the most commonplace problems that ordinary people face. They founded LegalZoom to bridge this gap. 

As this idea was germinating in the mind of the entrepreneurs, online businesses were gaining currency; stocks were being traded online and travel services were increasingly offered online. Inspired by the number of services being offered online, Liu and Lee with the help of technologist Hartman, launched LegalZoom, an online service that would address legal needs of small businesses and individuals who could not afford the legal fees of lawyers (Harris n.d.). 

In addition to legal documentation, LegalZoom provides advice from independent lawyers. This has resulted in another section of the population receiving essential legal services at an affordable price. People who could not afford to engage the services of a lawyer completely and were not eligible to receive assistance from legal aid services, can now decide how, when and for which service they engage a lawyer. In other words, the company has unbundled the wide range of legal services offered by lawyers using technology to suit the preferences of the customers. For a competitive price,  customers can choose to have short online chats with lawyers (limited access) or engage a lawyer’s expertise completely.  

Defining and monitoring outcomes

How and to what extent has LegalZoom researched and identified the outcomes that people expect from justice processes in the target population?

LegalZoom sought to cater to the legal needs of small businesses and middle-income individuals. At the time of its inception, there existed little data on the justice needs of Americans. So the company was not founded on hard, evidence-based data and facts per se. The founders had to rely on observational data to identify what people want from existing justice services (C. Rampenthal and J. Peters, personal communication, October 1, 2020).

For instance, prior to the setting up LegalZoom, the founders realised through interactions with friends and family members that going to a lawyer for transactional legal needs, such as creating a will, was very expensive for ordinary people. Thereafter when LegalZoom was in its nascent stage, circa 2000-2003, the use of the internet was taking off. People searched ‘how to get a divorce in the cheapest possible way’, ‘how to set up a business’, ‘how to make a will’ etc, which indicated to LegalZoom the kind of legal services people most needed (Ibid). 

Another approach that the company has adopted to identify the outcomes that people want from justice processes is to understand the underlying needs of the customer. To illustrate this point, the interviewees quoted the example of Henry Ford. If Henry Ford were to ask people what they wanted, people would ask for faster horses. But what they actually wanted was a faster mode of transportation (Ibid). Similarly, LegalZoom tries to unravel the fundamental needs of the people using the information it obtains in its interactions with clients. 

LegalZoom’s commercial success indicates that this approach of the company to understand the outcomes that people want has proven to be effective. However, there is scope for the company to systematically and empirically research and identify the outcomes that people want from justice processes. This can help LegalZoom in better defining the outcomes that people want and thereby improve the services and products it offers. 

How and to what extent has LegalZoom determined whether existing justice processes deliver these outcomes and allow people in the target population to move on?

LegalZoom was founded with the very objective of addressing the gap left by existing justice processes in delivering the outcomes that people want. The founders of the company were aware that far too many lawyers in the USA charge exorbitant fees for providing even the most basic services, making it difficult for ordinary people to access them. 

Moreover, the everyday experiences of the friends and family members of the founders of the company revealed to them that services that provide advanced, user-friendly and affordable legal documents are absent in the market. To verify this finding, the company undertook preliminary market research (Ibid). Together, these data points indicated that existing justice services fell short of delivering outcomes that people desire. 

How and to what extent has LegalZoom created a system for monitoring whether new, people-centered justice processes deliver these outcomes and allow people in the target population to move on?

LegalZoom designs its products specifically to meet the outcomes that people look for. 

The representatives of LegalZoom explain that they are constantly trying to resolve problems that people face while accessing justice (C. Rampenthal and J. Peters, personal communication, October 21, 2020). Thus, LegalZoom’s problem-solving outlook ensures to some extent that its products and services are best positioned to deliver the outcomes that people want. 

In the following years to come, LegalZoom can consider setting up a full-fledged monitoring outfit that tracks whether its products and services are delivering the outcomes that people want. 

Evidence-based solutions

How and to what extent has LegalZoom introduced interventions that are evidence-based and consistently deliver the justice outcomes that people in the target population look for?

Consider:

LegalZoom introduces interventions that are user-centred. Before introducing a new product or service, the company undertakes surveys and focus group discussions with customers and larger public alike. Through these methods, they try to understand how people would like to access a particular legal service. For example, they asked people: “Have you gone to a lawyer?”, “Why did you go to a lawyer?”, “Did you go in person?”, “Did you talk on the phone?, “What do you think about accessing this service online?” (Ibid). 

The company also interacts with their existing customers and tries to unpack legal problems from the customer’s point of view. It works to understand their needs, their experience using a product, and their preference for different solutions that can address their needs. In one such conversation, a customer revealed to representatives of LegalZoom that she prefers the company’s online services because other lawyers discriminated against her because of the colour of her skin. The online services offered by LegalZoom protect her from racial or gender biases that individual lawyers may carry (Ibid).  

That being said, what is still missing is an evidence-based approach to introducing interventions that consistently deliver the justice outcomes that people want. The products and services that LegalZoom has introduced are user-centred and effective in resolving people’s problems. However, they are not based on rigorous evidence which demonstrates the effectiveness of these interventions at delivering the outcomes that people want. 

How and to what extent has LegalZoom used outcome-based monitoring to continuously improve these interventions and replace interventions that have proven ineffective?

On the basis of data collected for this case study, it appears that LegalZoom undertakes user-testing to improve or replace a product or service. LegalZoom interacts with 5-15 customers on a weekly basis. When introducing a new product or service, the company designs and tests three variations each and tests them on customers to identify which one they prefer. It then iterates the design of the service or product based on the customers’ feedback. Thereafter, it introduces the revised product or service among customers, requests their feedback, and again reworks its design based on the feedback they receive. This is done 4-5 times, by which time the product or service is free from most inefficiencies (Ibid).

Although user-testing is an effective way of designing products, systematically monitoring outcomes that people receive can inform the company about the user’s end to end journey of using its products and services while trying to resolve a legal problem. This information can add value to LegalZoom’s understanding of the outcomes people want and enable the company to tailor its products and services to better fit the needs of people. 

Innovations and delivery models

How and to what extent has LegalZoom scaled their people-centered service delivery model to deliver justice outcomes for a larger target population?

Marketing and branding played a critical role in scaling the services that LegalZoom provides.

Representative of LegalZoom (C.Rampenthal and J.Peters, personal communication, October 1, 2020)

Founded in 1999, LegalZoom expanded quickly between 2000 and 2003, thanks to the penetration of the internet in all corners of the US. Although initially the company was not widely known, LegalZoom leveraged the platform provided by the newly emerging internet to advertise itself. This gave LegalZoom a competitive advantage because at that time, most other legal firms did not indulge in online marketing thus allowing the company to market itself at a competitive price across all 50 states (Ibid). It helped the company increase its visibility and create a national customer base.  

Other key factors that helped LegalZoom in scaling its services were its customer focus, problem-solving orientation, and innovation mindset. As one interviewee said, 

Many times, innovators are carried away by the strengths of their innovation, that they forget to further innovate. Afterall, the innovator is trying to resolve problems. By limiting the innovation to a certain set of problems, the innovation limits its own growth. Instead, if the innovator adopts an attitude where he or she is looking to resolve new and more problems, it automatically broadens the scope of the innovation. By continuing to address problems, the innovation boosts its own effectiveness and ability to reach out to more people than before (Ibid).

This zeal to solve problems is evident in the company’s evolution. It went from offering DIY legal forms to providing services of lawyers in combination with legal documentation at a competitive price. Consequently, LegalZoom could reach out to people who had previously shied away from using standalone DIY forms and diversify its clientele. 

Coming to the question of to what extent LegalZoom has scaled its services, as mentioned before, so far LegalZoom has provided services to over 4 million customers and filed 250,000 trademarks (Chowdhury 2017). The company operates in all 50 states of the USA. LegalZoom estimates that every 3 minutes, a customer sets up a LLC and every 4 minutes, a last will is created using the company’s documentation service. One in five LCCs in California and nearly one in six non-profits are launched with LegalZoom. Customers have completed over 550,000 consultations with LegalZoom plan attorneys (C. Rampenthal and J. Peters, personal communication, October 21, 2020).

How and to what extent has LegalZoom funded their service delivery model in a sustainable way?

One of LegalZoom’s main lessons in having a sustainable financial strategy is to have a for profit business model, even if the innovation is working on a social cause. The reason for this being for profit organisations often lack the organisational structure and funding that is required to scale operations. The funding constraint further limits their ability to hire and recruit talented persons. 

Secondly, LegalZoom evolved from being a company that offers legal documents for purchasing on an item-by-item basis into one that offers legal services for a subscription plan. While selling documents related to will, trademarks, LCCs to customers, the company was already making profits. It is only when the company started providing legal plans that it switched to a subscription based model. 

The company chose a subscription based model because typically, prepaid legal plans are offered for a subscription. In legal services, where acquisition cost is high, the subscription model helps companies that provide transactional legal services and have a higher volume of customers at a lower cost. It gives them more room to work with the acquisition costs. 

Apart from subscriptions from users, LegalZoom draws financial resources from venture capitalists and private equity funding. Although the subscription model is a profitable financial strategy, the company relies on venture capital and private equity for strategic and growth purposes. Like any other private company, it is likely that the company will have to look for more sustainable sources of funding in the future. 

To what extent has LegalZoom leveraged the following sustainable financing strategies?

LegalZoom relied on private equity funding, venture capital and user contributions in the form of subscription fees to sustainably finance its operations. It did not undertake a public-private partnership model or incorporate smart user contributions in its business model. 

In the initial years of Legal Zoom, venture capitalists were not willing to invest in the company due to the dotcom bubble burst. Instead, the founders raised funds from friends and family. They raised $333,500 in the first go (Harris n.d.; Cremades 2019). Over a period of time, the friends and family members of the founders invested around $1 million. Bringing Mr. Shapiro on board early on also helped with the company’s fundraising efforts, and his influence brought several investors in.  Most of these were very small amounts in comparison to equity raises from professional investors. 

Thereafter, the company has relied on private equity funding and venture capitalists. In 2018, the company’s valuation boosted upto $2 billion after it received secondary investment from Francisco Partners, GPI Capital, Franklin Templeton Investment Funds, Neuberger Berman Investment Advisors and Institutional Venture Partners (Amore 2018). This chunk of investment is among the largest investments in the history of the legal technology industry (LegalTechNews 2018).

Prior to that, private equity firms such as Permira invested $200 million dollars in the company in 2012. This was around the time when LegalZoom wanted to go public, but instead opted for a private equity investor. Other investors who have a stake in the company are venture capitalist firm Bryant Stibel. 

Enabling environment

How and to what extent have regulatory and financial systems created/enabled by the government supported LegalZoom and made it possible for this service/activity to scale?

The legal regulatory system in the US-  namely lawyers and several state bar associations – created significant barriers for LegalZoom over the years. They accused the company of being engaged in unauthorised practice of law (UPL), on the basis that the state legal ethics rules prohibits anyone but a lawyer to practice law (American Bar Association n.d.). 

In a 2010 class action lawsuit, the District Court in Missouri concluded that LegalZoom is engaged in UPL. LegalZoom settled the case by paying compensation of $15,000 to the plaintiffs who were a part of the class action, as well its customers in Missouri. It also made certain undisclosed changes in its business policy (Moxley 2015).  In addition to Missouri, LegalZoom faced lawsuits in Ohio, Alabama and Connecticut. The State Bar Associations of Connecticut, Pennsylvania and North Carolina also accused the company of unauthorised practice of law in the past. It was only in South Carolina that the Supreme Court ruled in favour of LegalZoom and unequivocally stated that the company does not engage in unauthorised practice of law (McClure 2016).

In 2012, when LegalZoom was considering going public, the company identified on-going cases and threat of lawsuits based on unauthorised practice of law as a risk associated with its business (LegalZoom 2012). Although this did not actively prevent LegalZoom from going public, it is clear that the UPL accusations were a matter of concern for the company. 

Despite these challenges, LegalZoom’s popularity allowed it to continue to operate and expand its services. The company’s trajectory of lawsuits and accusations of unauthorised practice of law saw a turning point when the State Bar Association of North Carolina had issued cease and desist letters to LegalZoom on the charge of unauthorised practice of law. Here, LegalZoom fought back by filing a case of promoting monopolistic practices in the field of law against the State Bar Association. 

Eventually, LegalZoom and the State Bar Association of North Carolina reached a settlement in 2015 in which the State Bar agreed to support online providers of legal services provided the latter enact regulations to protect the interests of consumers. That’s when LegalZoom found the support of other national public institutions. The Antitrust Division of the Department of Justice (DOJ) and Federal Trade Commission (FTC) supported this move and acknowledged the way in which LegalZoom filled a lacuna in the provision of affordable legal services (Moxley 2015). They stated that: 

Overbroad scope-of-practice and unauthorized-practice-of-law policies can restrict competition between licensed attorneys and non-attorney providers of legal services, increasing the prices consumers must pay for legal services, and reducing consumers’ choices.

... Interactive software for generating legal forms may be more cost-effective for some consumers, may exert downward price pressure on licensed lawyer services, and may promote the more efficient and convenient provision of legal services. Such products may also help increase access to legal services by providing consumers additional options for addressing their legal situations (Department of Justice and Federal Trade Commission 2016).

This was the first time that a state bar association had taken formal action against LegalZoom with regards to UPL. By clearing its name off the UPL allegations, the company was finally able to put the UPL accusations to rest.  

After the company reached a settlement with the State Bar Association of North Carolina, the company’s then General Counsel released a statement heralding the start  of a new pathway to increase access to justice. He says:

The tide is turning. From rear guard actions that try to stop LegalZoom to how we can work with technology and companies like LegalZoom to start expanding access to people who need affordable legal services (Rogers 2015).

While the company encountered obstacles in its home country, it was able to expand its services in others. The United Kingdom adopted a new Legal Services Act in 2007 that created a regulatory structure allowing alternative business structure (ABS) firms. ABS firms have some form of non-lawyer involvement in the ownership and/or management of the firm (McMorrow 2016). 

Taking advantage of this opportunity, LegalZoom acquired the ABS licence and has bought a legal firm in the UK with the intention of building a new-age law firm that brings together technology, lawyers and experts from other fields. Since then, LegalZoom has offered online services to business owners, persons interested in selling or buying a home, and individuals interested in making a will. In April 2020 LegalZoom sold its law firm, which is an ABS,  to Metamorph Group in the United Kingdom. Although LegalZoom did not operate in the UK for a long time, this example demonstrates that modern legal practices set by regulatory bodies were beneficial to the company in scaling its activities (Rose 2020). 

How and to what extent have the outcomes-based, people-centered services delivered by LegalZoom been allowed to become the default procedure?

With respect to LegalZoom, the train has left the station.They’ve got a couple million satisfied customers and it’s going to be really hard for anyone to shut them down ,” says Deborah Rhode, a legal scholar in the US (Ambrogi 2014).

LegalZoom fought a long battle in order to be accepted by legal practitioners and institutions. It received recognition by regulatory bodies and federal authorities for providing an essential legal service only in 2016. Prior to that recognition, the company adopted varying strategies on a case by case basis to respond to and overcome legal challenges of unauthorised practice of law. 

One, it negotiated settlement deals with relevant state authorities in which it made certain modifications to the way it operates. In another case, it sued the State Bar Association of North Carolina for protecting lawyers’ monopolies that hurt  the interests of consumers. Three, it countered the arguments made by the state authorities and continued to operate with no legal repercussions.  LegalZoom was able to do this because by then, its client-base had expanded and its services were being used by millions of Americans. This prevented many state legislatures from taking formal action against the company (Barton 2015). 

When LegalZoom was challenged in South Carolina, the Supreme Court of the state found the company not guilty of UPL (McClure 2016).  In Ohio, the Supreme Court refrained from arriving at a conclusion and deferred its decision. In Alabama,  the plaintiff himself dismissed the lawsuit (GlobalNewswire 2011). The Connecticut Unauthorised Practice of Law Committee and the Pennsylvania Bar Association Unauthorised Practice of Law Committee considered LegalZoom’s legal services in violation of UPL, but did not take further action to penalise the company (McClure 2016). 

In the state of Missouri, the court concluded that LegalZoom is engaged in UPL but allowed the company to function if it made certain modifications. Similarly, in the state of Washington, LegalZoom was required to arrive at a settlement with Attorney General Rob McKenna in 2010 (Beahm 2010). The settlement included disclaimers that LegalZoom should provide to protect the interests of consumers. 

Likewise, the Supreme Court of North Carolina permitted LegalZoom to operate subject to certain conditions needed to protect the interests of consumers. The two parties reached an agreement after clashing for a long period of time. An important factor that prompted the State Bar Association of North Carolina to reassess its order that LegalZoom cease operations was LegalZoom’s lawsuit accusing the North Carolina State Bar of violating antitrust laws, protecting monopoly of lawyers and stifling competition (Brown 2016).

This agreement set a precedent not observed before by LegalZoom or any other online legal service provider. The State Bar also agreed to review the definition of UPL to accommodate online legal service providers like LegalZoom, discouraging other UPL lawsuits against LegalZoom in the future (Rogers 2015). Thus, this agreement signalled  the end of LegalZoom’s UPL woes and paved the way for other similar online legal service providers to function without the threat of allegations of UPL. 

Along with LegalZoom, there exist several other online service providers such as Rocket Lawyer, Avodox, Patentbot, Incfile and UpCounsel. These service providers coexist with traditional legal service providers such as law firms. Therefore, even as the use of online legal services has become widespread, it cannot be said that these services have become the default procedure. 

How and to what extent has LegalZoom stimulated (or benefitted from) investment into justice research and development?

Evidence suggests that LegalZoom has not directly benefited from investment into justice research and development in the USA.  

Leadership and pathways

How and to what extent have justice sector leaders’ skills and collaborations enabled/hindered LegalZoom to increase access to justice by delivering the outcomes people need at scale?

LegalZoom has reaped the benefits of working with justice workers in both direct and indirect ways. The company learnt to look at justice problems with a new perspective and was inspired to do new projects. Justice leaders who were advisors to the company helped it in navigating the regulatory landscape in the USA and UK (C. Rampenthal and J. Peters, personal communication, January 20, 2021). Given that LegalZoom has faced multiple challenges with respect to accusations of unauthorised practice of law, advice from justice leaders on how to manoeuvre the regulatory landscape is likely to have helped the company in avoiding further complications with respect to the legal identity and functioning of the company in the USA. 

As for the UK, it is likely that the advice from justice leaders helped the company in expanding its operations internationally (from being a company that works solely in the USA, to moving to the UK) for the first time. Both ways, it enables the company to work smoothly and in providing its services to people in different geographies and thereby deliver the outcomes that people need at scale. 

Literature indicates that justice leaders within public institutions in the USA have also helped LegalZoom. During the legal battle between the State Bar Association of North Carolina and LegalZoom on the issue of unauthorised practice of law, the then President of the State Bar Association of North Carolina Ronald Gibson, and his predecessor Ronald G. Baker Sr., were instrumental in chalking out a settlement between the two parties (Rogers 2015). 

This settlement not only allowed LegalZoom to operate without any obstacles in the state of North Carolina, but it was also the first time that a regulatory institution had deemed the services provided by the company as not falling under the umbrella of unauthorised practice of law. The company has faced allegations of UPL several times, this virtually cleared the company’s name in the eyes of regulatory institutions thus enabling it to function with fewer obstacles than before in the USA. Being able to operate seamlessly in a given geography again allows the company to continue in scaling and thereby delivering outcomes that people need at scale.

How and to what extent has LegalZoom contributed to/benefited from new high-level strategies or pathways towards people-centred justice in the US?

LegalZoom is cautious when participating in the formulation of high-level strategies towards people-centred justice. A significant portion of people-centered justice entails delivering services for free to those in our systems that need it the most. Many entities, including non-profit companies and NGOs have been working to increase access to justice for years – and have made strides in doing so.  Being a profit-making company, LegalZoom is aware that its motives may be questioned, which in turn could hurt or pull focus from the movement of innovating the justice system. So when participating in high-level strategies, LegalZoom makes sure to focus on the end goal of innovating to improve access. That being said, LegalZoom, along with many other stakeholders in the legal system, has interacted with the Supreme Court of Arizona, Washington, Illinois and Florida about reforms required to increase access to justice for the people (C. Rampenthal and J. Peters, personal communication, October 21, 2020).

One interviewee highlighted a paradox in the legal profession:

We want to be enablers and facilitators. We don’t want to be drivers. The drivers need to come from the states. They need to come from the regulators, they need to come from educators and academia because their motives are not looked at suspiciously (since they are not for profit). But we all know that the only way these work, as true solutions, is to show that there is profit in them. Not for profits usually lack the organisational structure and funding required to scale operations. Besides, a lot of justice issues simply are not attractive to private equity and venture capital. Therefore the private sector plays an important role in bridging the justice gap (Ibid).

LegalZoom may have been wary of actively contributing to high level strategies to enable people-centred justice, but it unwittingly brought about changes in the way online legal service providers are perceived by regulatory bodies such as state bar associations. 

In 2015, while settling the dispute with the North Carolina State Bar Association, LegalZoom and the State Bar Association agreed to support legislation that gave interactive legal service providers the green light to function legally, subject to the condition that they follow the terms of the settlement agreement that LegalZoom and the State Bar Association crafted. The State Bar Association also gave its word that it would lend support to legislation that would bring clarity to the definition of ‘unauthorised practice of law’, which as of now is vague and was used to challenge LegalZoom’s legality. This agreement is a step in the direction of expanding the capacity of non-traditional actors to provide legal services and thereby loosen the monopoly of lawyers over the practice of law (Carter 2015).

This agreement took the form of the ‘An Act to Further Define the Term ‘Practice Law’, passed by the General Assembly of North Carolina in 2015. This Act exempts interactive legal service providers from the definition of practice of law and includes other terms of agreement that LegalZoom and State Bar had decided upon (Justia US Law n.d.).

To what extent has LegalZoom contributed to/played a role in a broader paradigm shift towards people-centered justice?

LegalZoom is often characterised as a ‘disruptive innovation’ – or an innovation that brought about a paradigmatic shift (Cohen 2014). Time and again, the company has introduced cutting edge business models that have had success in the commercial market and simultaneously made legal services affordable than before. It began its business at the low-cost, high-volume end of the market and eventually moved up the ladder to provide high-end services that require the specialised and technical skills of lawyers (Barton 2015). Both times, it refashioned the way legal services are provided.  

Not the first provider of online legal forms, it certainly offered the most sophisticated and efficient legal documentation (Schindler 2012). 

With its prepaid legal plan that offers unlimited 30 minute consultations from lawyers on new personal and business matters for a fee starting from 10 dollars a month, LegalZoom entered into the business of offering personalised services of lawyers. People who previously could not afford the hourly rates of lawyers, can now obtain legal services from LegalZoom’s pre-vetted network of lawyers at an affordable price. This new product of the company dramatically alters people’s access to justice. 

People can decide the degree of lawyer involvement, starting from brief online interactions with lawyers to long-term engagements. This upends the way the legal services have previously been delivered by shifting the focus away from a lawyer-oriented business model to consumer-oriented business model. Zooming out to a larger landscape of legal system, the company has created a ‘template for how, when, and for what service level lawyers are required for different tasks and functions’ (Cohen 2014). It commodifies services of lawyers in a way never seen before – markets will now determine ‘who and what is the appropriate resource to deploy for a specific task, matter, or portfolio based upon its value to the client?’ (C.Rampenthal and J.Peters, personal communication, October 1, 2020).

Moreover, in the discourse and practice of the legal profession in the USA, LegalZoom demonstrated the potential of online legal service providers to provide efficient and reliable legal services thus paving the way for other online service providers. Taking inspiration from LegalZoom, traditional legal firms are also trying to take advantage of the company’s model of employing non-lawyers to help customers in preparing legal documents. Although such a change in regulations can make people susceptible to incompetent advice from unqualified or under qualified professionals, if these non-lawyer service providers are also regulated, it will help law firms to cut costs, increase efficiency and provide cheaper services to customers (Habte 2017). Thus not only is LegalZoom influencing the role of online legal service providers, it is also stimulating changes in the practice of law by traditional legal service providers, for the benefit of the people. 

Ambrogi, R. (2014). ‘Latest legal victory has LegalZoom poised for growth’, ABAJOURNAL

American Bar Association (n.d.). Rule 5.5 ‘Unauthorised Practice of Law

Amore, S. 2018. LegalZoom valued at $2 billion following investment. Los Angeles Business Journal. 

Barton, B (2015). Lessons from the rise of LegalZoom, Bloomberg Law. URL: https://news.bloomberglaw.com/business-and-practice/lessons-from-the-rise-of-legalzoom

 Beahm, J. (2010).  WA State AG: ‘DIY Legal Forms Aren’t a Substitute for an Attorney (blog). FindLaw. com

Brown, C. (2016). LegalZoom: Closing the justice gap or unauthorised practice of law. North Carolina  Journal of Law and Technology, 17(5). 

Carter, T. (2015). LegalZoom resolves $10.5M anti-trust suit against North Carolina State Bar. ABA Journal.

Chowdhury, A (2017). How LegalZoom provides businesses with affordable legal assistance. Forbes

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Cohen, M. (2014). Legal Innovation is not an oxymoron — its farther along than you think. Forbes. 

Department of Justice & Federal Trade Commission, Comment Letter on North Carolina HB 436 at 10 (June 10, 2016)

 Email correspondence with Chas Rampenthal and James Peters of LegalZoom, dated January 20, 2021

GlobalNewswire. 2011.  ‘Alabama Lawsuit Against LegalZoom Dismissed’, NBC news.

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Interview with Chas Rampenthal and James Peters, October 1, 2020

 Interview with Chas Rampenthal and James Peters, October 21, 2021.

Judith A. McMorrow. (2016) “UK Alternative Business Structures for Legal Practice: Emerging Models and Lessons for the US.” Georgetown Journal of International Law 47(2), 665-711.

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Moxley, L. (2015). Zooming Past the Monopoly: A Consumer Rights Approach to Reforming the Lawyer’s Monopoly and Improving Access to Justice. Harvard. Law. & Policy Review, 9.

Rogers, J. 2015, ‘Settlement allows LegalZoom to offer legal services in N.C’. LegalZoom. 

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Schindler, L (2012). Skirting the ethical line: The quandary of online legal forms. 16 Chap L.Rev.184.

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Case Study: Local Council Courts in Uganda

Case study

Local Council Courts in Uganda

Trend Report 2021 – Delivering Justice / Case Study: Local Council Courts in Uganda

Author: Manasi Nikam, Knowledge Management Officer

Introduction

During the guerilla war that took place in the National Resistance Movement (NRM) of 1981-86,  Resistance Councils were established to mobilise people as well as resolve disputes in areas dominated by rebels. In 1987, when the country was undergoing decentralisation, the Resistance Council Judicial Statute of 1988 granted judicial authority to the Resistance Councils and renamed them Local Councils (LCs) (Khadiagala 2001).

By granting LCs judicial authority, the NRM sought ‘to foster participatory democracy and political inclusiveness’ (Khadiagala 2001, p.64.). The mandate required the Local Councils to conduct meetings with community members regularly and address problems collectively. At that time, the formal judiciary in the country was in the process of being restored. In their absence, Local Council Courts filled the gap of unmet justice needs of the people in Uganda (World Bank 2009). 

Over time, the Local Councils became an alternative to the traditional, adversarial approach of the formal court system. Their primary objective was to enable popular justice that emphasises indigenous values of communal harmony, cooperation, compromise and conciliation (Khadiagala 2001, p.64) . Local Council Court members or judges therefore were given the flexibility to adjudicate cases using common sense and wisdom (Khadiagala 2001, p.56). Local norms and social ties influence the sanctions imposed by Local Council Court members (Khadiagala 2001, p.64). The involvement of community members made Local Council Courts more accessible and affordable, especially for the citizens living in rural areas. 

We chose Local Council Courts as an example of an informal justice system that delivers people-centred justice for these reasons and more. As we will see below, the model of the Local Council Courts is user-friendly. They have been designed to suit the needs of the majority of the people in Uganda. The widespread usage of Local Council Courts in Uganda distinguishes them from informal justice systems that often operate in small geographies. 

For the purpose of collecting data for this case study, we tried to contact members of Local Council Courts, government functionaries that oversee their administration and development, members of civil society organisations and academics. Unfortunately, most of the stakeholders were hard to establish contact with. Very often, stakeholders did not take ownership of this justice system. Some stakeholders were willing to share their experience of working with Local Council Courts, but had expertise only in certain domains and were unable to give us a holistic view of Local Council Courts. Similarly, literature on Local Council Courts is scant. Therefore, lack of adequate data posed a limitation while developing this case study. 

Yet, we present this case study because we believe that there is much to learn from what we do know. In the below sections, we summarise, synthesise and examine the strengths and weaknesses of this unique dispute resolution mechanism as it exists today, with the hope that justice workers can build further on it and perhaps sketch a roadmap to consolidate the position of alternative, community-based justice services such as these that exist elsewhere in the world and are better suited to deliver justice than any other justice system. 

How do Local Council Courts function?

The 2006 Local Council Courts Act led to formation of Local Council Courts in Uganda at the village (LC1), parish (LC2), town (LC3), division (LC4) and sub-county (LC5) level. The Ministry of Local Government oversees the functioning of Local Council Courts. Members or judges of the Local Council Courts are residents of the locality the LCC has jurisdiction over. Members of Local Council Courts may or may not have academic qualifications but it is essential that they are highly respected in the community, persons of integrity, have a high moral character, and speak the local language. Decisions of Local Council Courts derive their legitimacy from the fact that members of LCC are influential figures in the community (Government of Uganda 2006). 

Unlike the time-consuming manner in which cases are adjudicated in formal justice systems, procedures in Local Council Courts are not complex. The Local Council Courts use the local language rather than English: the working language of the formal court system. Both factors enable the delivery of speedy and user-friendly justice. Disputing parties have to represent themselves before the Local Council Courts in their community, or nominate a person who can speak on their behalf. Representation by lawyers is not permitted (Ibid). 

The Local Council Courts provide relief to victims in the form of reconciliation, compensation, restitution, costs, apology, fine, declaration or any other recourse deemed appropriate by law and social norms (Ibid).  

Local Council Court members are paid a fee of 10,000 shillings (2.3 euros) for every session they participate in by the government. The party approaching the LCC is also required to pay a nominal fee, which varies depending on the type of grievance for which the plaintiff seeks resolution (Ibid). 

Local Council Courts are linked to the formal system through a system of appeals from the village court through to the Magistrates courts: decisions of the village executive committee court (LC I) can be appealed to the parish executive committee court (LC II). Appeals from there are possible to the sub-county executive committee court (LC III), and in turn to the Chief Magistrates Courts (Ibid). 

Problems and impacts

How and to what extent have Local Council Courts measured and mapped the following as a first step towards people-centred justice?

Nationwide surveys assessing the justice needs of Ugandans conducted in 2016 and 2020 show that the most pressing justice problems that Ugandans face are related to land, crime, family, employment and neighbours (HiiL 2016; HiiL 2020). The Local Council Courts deal with these very problems, along with a few others. To illustrate, as mandated by the Local Council Courts Act 2006, the Local Council Courts deal with civil matters ranging from debts, contracts, property damage, trespassing, and customary matters such as land issues, family disputes, identification of customary heirs, underage pregnancies or elopement among women, and customary bailment. They also deal with minor criminal matters including assault and battery (Khadiagala 2001). 

Although the above mentioned surveys indicate that these are the most pressing problems in the everyday lives of Ugandans, these problems were not identified or mapped in a systematic way. Rather, they were identified based on common knowledge of justice problems that exist in Uganda.

In theory, the Local Council Courts were meant to provide an alternative dispute resolution mechanism to women and the poor and marginalised section of the population who cannot afford and access the formal justice system. However, studies indicate that elites in the community use this community based justice service members of the Local Council Courts for their own benefit (Rugadya and Nsamba as cited in Kemigisa and Namara 2018). Moreover, patriarchal relations make women vulnerable to gender biases even while seeking justice from members of the Local Council Courts, as they are often composed of men (Ibid). The Local Council Courts Act 2006 reserves two seats for women in the Local Council Court as a way to ensure gender justice, but no other measures were undertaken to address the problems that women and marginalised people face (Government of Uganda 2006). Thus, the problems of vulnerable sections of the population were not measured or mapped in a satisfactory manner.  

Defining and monitoring outcomes

How and to what extent have Local Council Courts researched and identified the outcomes that people expect from justice processes in the target population?

The Local Council Courts were established to deliver outcomes to people that align with the principles that Ugandan society is based on: communal harmony, cooperation, compromise and conciliation (Khadiagala 2001). In that regard, as per the 2006 Act, the remedies that are available to people who seek help from the Local Council Courts are restitution, compensation, reconciliation, community service, apology, and warning not to engage in future harmful behaviour. These remedies or outcomes that Local Council Courts offer were not based on research per se, but on intimate knowledge of principles that underlie Ugandan society. 

Additionally, apart from a broad framework of principles, people also want specific types of outcomes for each type of justice problem. For example, in a land justice problem, people may want multiple outcomes such as fair ownership of land, compensation for loss of income, agreement on use of land and so on. In case of a family justice problem, people may desire outcomes along the lines of secure housing and income for all, fair division of property and debts, no violence, respectful communication and so on (1).Local Council Courts did not map such outcomes for the different types of justice problems that they deal with. This can be explained by the fact that focus on outcomes that people want from justice processes is a recent recommendation that has emerged in international development. So it does not come as a surprise that Local Council Courts did not conduct research to identify the outcomes that people want from justice processes. 

How and to what extent have Local Council Courts determined whether existing justice processes deliver these outcomes and allow people in the target population to move on?

Local Council Courts did not undertake assessments to determine whether existing justice processes deliver the outcomes that people want. As it is, the formal justice system in Uganda was known to be inaccessible to most of the citizens in the country for a number of reasons. 

First, it is common knowledge that it follows complex procedures. Given that the majority of the people are unfamiliar with the ways of the justice system, making it difficult for them to keep up with the processes. The formal justice system also functions in adversarial ways, departing from local values of reconciliation, compromise and communal harmony. 

Second, court proceedings are conducted in the English language. Although English has been recognised as one of the official languages in 1962 after Uganda gained independence from Britain, it is still a language of the elite and privileged. The majority of the Ugandan population speaks indigenous languages such as Luganda, Swahili, Bantu, Nilotic. All in all, 40 languages are used in Uganda – none of which have been adopted by the formal justice system (with the exception of English). Thus, language poses another barrier to accessing the formal justice system. Third, the costs associated with lawyers and the formal courts further discourage people from approaching the formal justice system (Ministry of Local Government Uganda 2014).

How and to what extent have Local Council Courts created a system for monitoring whether new, people-centered justice processes deliver these outcomes and allow people in the target population to move on?

There is little evidence of a formal system that regularly monitors outcomes delivered by the Local Council Courts. In the coming few sections, we will discuss studies conducted by academics, local civil society organisations and international development organisations that track whether the Local Council Courts deliver outcomes that people need to move on do exist, but these studies are time-bound assessments  and not a systematic way of monitoring outcomes. 

Evidence-based solutions

How and to what extent have Local Council Courts introduced interventions that are evidence-based and consistently deliver the justice outcomes that people in the target population look for?

Consider:

Uganda’s Ministry of Local Government – with the help of local civil society organisations – has introduced evidence-based interventions directed towards standardising and formalising the functioning of Local Council Courts in the country. Although evidence indicates that these interventions have brought about an improvement in the outcomes that justice processes deliver to people, the explicit focus of most of the interventions was on the process of delivering justice and not outcomes (Kemigisa and Namara 2018).  

As a result, the interventions do not focus on providing people the outcomes that they want – corruption-free Local Council Court, fair adjudication of cases, no gender bias (Khadiagala 2001; World Bank 2009, p.46). So the interventions introduced by Local Council Courts are evidence-based but do not consistently deliver the justice outcomes that people look for. 

Literature indicates that various international organisations such as the UNDP, Legal Aid Basket Fund, UNCDF, Nordic Consulting Group, Defence for Children International (DCI) have conducted an evaluation of the functioning of Local Council Courts in collaboration with the Ministry of Local Government over the years. Based on these evaluations, the government of Uganda – along with international aid organisations such as UNDP, UNCDF – has taken steps to improve the functioning of the Local Council Courts (UNDP 2013; Kemigisa and Namara 2018; Khadiagala 2001). Civil society organisations based in Uganda such as Democratic Governance Facility (DGF) and International Law Institute- African Centre for Legal Excellence (ILI-ACLE) have also supported capacity building initiatives for the Local Council Courts (Kemigisa and Namara 2018). 

The evidence gathered in these evaluations indicates that Local Council Courts lack standardised, up-to-date operational guidelines. The members of Local Council Courts are not adequately trained and are unaware of their rights and responsibilities as well as basic laws (Ibid). To remedy these issues, The Ministry of Local Government along with the support of UNDP, DGF, ILI-ACLE developed the Local Council Court Guidelines and a training manual for LCC members that is available in nine local languages. A Training of Trainers was also conducted at the district level and awareness campaigns were undertaken through local radio stations (Ibid).

The trainers trained by the MoLG along with the Democractic Governance Facility (DGF) and International Law Institute – African Centre for Legal Excellence successfully trained nearly 90 percent of the LC3 members across Uganda. The training included topics such as the role of Local Council Courts in administering justice, legal framework of Local Council Courts, human rights enshrined in the Constitution of Uganda, principles, ethics and standards of judicial conduct, fee structure, jurisdiction, quorum of Local Council Courts, language of court, role of witnesses, proceedings and judgement, remedies and appeal. Apart from training programmes, efforts were made to streamline the maintenance and collection of records and registers maintained by members of the Local Council Courts throughout the country (Kemigisa and Namara 2018). 

Training was also given on essential laws such as the Children’s Act and Domestic Violence Act and on laws governing customary land. To increase the capacity of members of the Local Council Courts in resolving justice problems of people, mediation training was also provided. In another instance, the UNDP supported capacity building of Local Council Courts through legislative enactments and developing regulations and manuals and providing training for local councillors in Uganda (UNDP 2013). 

A study conducted by DCI in 2000 showed that Local Council Courts did not prioritise cases pertaining to petty crimes committed by children. Instead, these cases were channelled to the formal justice system. This resulted in children receiving custodial sanctions rather than being treated with rehabilitative measures. To address this problem, DCI conducted training and sensitisation of Local Council Court members (UNHCR n.d.). 

How and to what extent have Local Council Courts used outcome-based monitoring to continuously improve these interventions and replace interventions that have proven ineffective?

HiiL made efforts to contact institutions in Uganda who are responsible for overseeing the functioning of Local Council Courts but were unsuccessful in reaching them. Based on the limited evidence that we could collate from interviews with Local Council Courts members, civil society organisations and academics, and the available literature, it appears that Local Council Courts do not use outcome-based monitoring to improve interventions or replace ineffective interventions. Rather, they have focused on improving the procedure of delivering justice. 

Literature as well as interviews conducted by HiiL indicates that the processes of the Local Council Courts are not standardised nor institutionalised (Kemigasa and Namara 2018; A. Ballamu, personal communication, November 19, 2020; LASPNET NGO, personal communication January 12, 2020). Members of the Local Council Courts often lacked knowledge of their own roles and responsibilities as well as that of laws that govern common justice issues such as land and family problems. Therefore, the interventions that have been implemented focused on building capacity of the LCC members and formalising LCC processes. Very few interventions directly train members of Local Council Courts on delivering better outcomes to people. 

Innovations and delivery models

How and to what extent has Local Council Courts scaled their people-centered service delivery model to deliver justice outcomes for a larger target population?

Local Council Courts have become a fixture in the judicial system throughout Uganda. On average, each Local Council Court handles two cases per week. This means that close to 80,000 cases per week are heard and resolved in these courts across the country. Overall, 80 percent of Ugandans access justice through Local Council Courts (Ministry of Local Government in Uganda 2014).

A nationwide assessment of justice needs of citizens in Uganda revealed that Local Council Courts are present even in the most remote areas of the country and that the majority of Ugandans seek information and advice from their social networks and the Local Council Courts (Local Council Courts). People approach Local Council Courts to resolve problems related to crime, justice, land, employment and family disputes (HiiL 2016; HiiL 2020).

How and to what extent have Local Council Courts funded their service delivery model in a sustainable way?

We tried to obtain data on the funding model of Local Council Courts via primary as well as secondary research but we were unable to find any substantial evidence. The only document that mentions sources of funds that are available to Local Council Courts is the Local Council Courts Act 2006. As mentioned before, the Act makes provision for user fees that are to be paid by the plaintiff. The amount to be paid depends on the nature of the justice problem (Government of Uganda 2006). 

Interviews conducted with members of the Local Council Courts at the village level as well as literature indicate this amount is not sufficient to cover the expenses incurred by the Local Council Court while adjudicating a case (A. Ballamu, personal communication, November 19, 2020; Kemigasa and Namara 2018). Moreover, people who seek intervention of Local Council Courts in their justice problems do not have financial capacity to cover all expenses related to the case. So the members of Local Council Courts used their personal funds to be able to meet expenditures related to cases. Local Council Courts also lack the physical infrastructure such as courtrooms and offices, resources such as stationery and human resources (ILI-ACLE as cited in Kemigisa and Namara 2018).

Information on funding models of LCs at the higher level is not available. On the basis of the evidence at hand, it can be inferred that Local Council Courts are underfunded and that they do not have a sustainable financial model. 

Enabling environment

To what extent has Local Council Courts leveraged the following sustainable financing strategies?

As mentioned before, we tried to obtain data on sources of funding available to Local Council Courts via primary as well as secondary research but we were unable to find any substantial evidence. The Local Councils Courts Act 2006 makes provision for user fees, but there is no mention of public-private partnerships anywhere in literature or in primary research conducted by HiiL. 

Expanding on the former, although the Local Council Courts Act requires users to contribute financially to the adjudication of their own cases and thereby partially cover for the expenses related to functioning of Local Council Courts, the users themselves lack the financial capacity to do so (A.Ballamu, personal communication, November 19, 2020; Kemigasa and Namara 2018). The term smart user contribution refers to payments taken from users over a period of time so that they are not pressed for funds at the time of experiencing a justice problem. It also includes requiring parties to the conflict who are better positioned financially to pay for costs that arise in the process of adjudication of the problem (HiiL 2020). Going by these definitions, Local Council Courts do not employ smart user contributions.  

How and to what extent have regulatory and financial systems created/enabled by the government supported Local Council Courts and made it possible for their services/activities to scale?

The Local Council Courts are governed by Uganda’s Ministry of Local Government but also supported by other justice institutions in the country, such as the Justice, Law and Order Society (JLOS), Uganda Law Reform Commission and so on. They are widely recognised by regulators for bridging the justice gap experienced by the poor and vulnerable, however this acknowledgement has not yet materialised into consistent and steady support to bolster the performance of Local Council Courts. 

In the recent past, the capacity building initiatives spearheaded by the Ministry of Local Government and civil society organisations have supported the standardisation of Local Council Courts, but since they were done in an ad hoc and irregular manner, gains are likely to be short-lived (Kemigisa and Namara 2018). Having said that, the lack of support from regulatory systems has not prevented Local Council Courts from scaling and delivering justice to people throughout Uganda, as indicated by nationwide assessments of justice needs of Ugandans undertaken in 2016 and 2020 (HiiL 2016; HiiL 2020). 

Interviews conducted with members of Local Council Courts, civil society organisations as well as literature indicates that Local Council Courts at the village (LC1)and parish level (LC2) have not been formally constituted since 2001 (A. Ballamu, personal communication, November 19, 2020; LASPENT Ngo, personal communication, January 12, 2020; JLOS 2017). While this has not kept Local Council Courts from scaling, it is indicative of the lack of support from regulatory institutions in cementing the base of Local Council Courts in Uganda’s judicial system. 

Literature too, indicates that Local Council Courts have received wavering support from public institutions over the years. In its second Strategic Investment Plan (SIP) 2006-2011, JLOS identified strengthening the capacity of Local Council Courts as one of its key goals (JLOS 2006). In contrast, the third SIP of JLOS (2012-2017) only briefly mentions Local Council Courts. It speaks about giving priority to strengthening the Local Council Courts, but does not outline a detailed plan for their improvement (JLOS 2012). The fourth Strategic Development Plan 2017-2020 of JLOS speaks about re-establishing LC1, as they have not been formally constituted since 2001 which further indicates that support for Local Council Courts varied in the second decade of the 21st century (JLOS 2017). 

How and to what extent have the outcomes-based, people-centered services delivered by Local Council Courts been allowed to become the default procedure?

As previously mentioned, Local Council Courts are used extensively throughout Uganda. About 80 percent of the population relies on Local Council Courts to resolve their justice problems (Ministry of Local Government in Uganda 2014). It is important to note here that the Local Council Courts have existed throughout the country despite not being formally established since 2001. As mentioned before, Local Council Courts at the village (LC1) and parish (LC2) level, where members of the Local Council Courts are elected democratically, the elections have not been conducted. As a result, members who were elected when the courts were first established have continued to serve as members. To conclude, LC1 and LC2 have become the default procedure despite lacking a formal base. 

Information about the functioning of Local Council Courts at the town, division and sub-county level is not available, so it can be determined whether Local Council Courts functioning at higher levels have become a default procedure. 

Another impediment to Local Council Courts becoming a default procedure is the limited capacity of Local Council Courts to enforce their decisions. When the Local Council Courts forcefully tried to enforce decisions, they risked losing support of the public. Additionally, many Local Council Courts report having a poor relationship with the police which makes it all the more difficult to enforce decisions or investigate cases. And because the members of Local Council Courts live in the same locality as the litigants, they are fearful of imposing decisions on sensitive matters (Nordic Consulting Group and Danish Embassy in Kampala as cited in World Bank 2009). Thus, the positionality of the members of the Local Council Courts although gives them familiarity with the issues being discussed, it also limits their ability to make fair and independent decisions. This can discourage people from seeking help from Local Council Courts.

Other factors that can potentially affect the ability of Local Council Courts to become a default procedure are nepotism, cronyism and bribery (Ibid). Given that the members of Local Council Courts are selected from the community, they are susceptible to favouring certain groups of people. Members at LC1 and LC2 also perform the function of executive council or elected leaders, which further raises questions on whether they can deliver justice independent of conflict of interest. The low compensation given to members pushes them to take bribes from people. All of these factors together can erode the confidence of people in Local Council Courts and potentially keep them from becoming a default procedure. 

How and to what extent has Local Council Courts stimulated (or benefitted from) investment into justice research and development?

The Local Council Courts have benefitted from investment made by the Ministry of Local Government, local civil society organisations and international development organisations in justice research and development to a limited extent. Several development organisations such as the World Bank, Nordic Consulting Group, UNDP, Legal Aid Basket Fund, UNCDF, Defence for Children International (DCI) have conducted research to assess the functioning of Local Council Courts (World Bank 2009; Kemigisa and Namara 2018). As previously mentioned, this research has informed the design of interventions that built capacity of members of the Local Council Courts and standardised and formalised the functioning of Local Council Courts. In some cases, it has spurred international aid organisations such as ActionAid to provide financial support to improve the infrastructure (court rooms, stationery) available to Local Council Courts (Actionaid 2017). But this financial support has been of sporadic nature, so ascertaining its benefit to Local Council Courts is difficult.

These interventions have also not addressed all weaknesses of the Local Council Courts. For example, research indicates that members of the Local Council Courts have biases against women and vulnerable groups which the interventions that have been implemented so far have not tried to remedy (Khadiagala 2001; Rudadya & Nsamba as cited in Kemigisa and Namara 2018).  Moreover, interventions are undertaken on an ad hoc basis, the gains for Local Council Courts from investment in research and development become modest, despite having much more to gain. 

On the other hand, Local Council Courts have contributed to research on informal and community-based justice services in the sphere of international development. The widespread use of Local Council Courts in Uganda has prompted justice workers at the international level to start a conversation about the benefits of community justice services and their relevance in other countries where the formal justice system falls short.

Leadership and pathways

How and to what extent have justice sector leaders’ skills and collaborations enabled/hindered Local Council Courts to increase access to justice by delivering the outcomes people need at scale?

HiiL’s experience of working in Uganda in 2016 and 2020 (2) indicates that leaders in the justice sector in Uganda are making efforts to strengthen the performance of Local Council Courts. But so far, little action has been taken to formulate or implement an action plan for the same. Hence, it can be said that Local Council Courts have not in the recent past benefited from skills and collaborations of justice leaders to increase access to justice.

How and to what extent has Local Council Courts contributed to/benefited from new high-level strategies or pathways towards people-centred justice in Uganda?

Evidence on the contribution of Local Council Courts to high-level strategies towards people-centred justice in Uganda is not available. So it is not clear if Local Council Courts have contributed to high-level strategies towards people-centred justice in Uganda.

In the past, Local Council Courts, as mentioned before, have benefited from aid and programmatic interventions of development organisations and the Ministry of Local Government. Other than that, establishing and strengthening LCI and LCII has been mentioned as a goal in the Fourth Strategic Development Plan (2017-2020) of Uganda (JLOS 2017). Prior to that, strengthening the capacity of Local Council Courts has also been mentioned in Strategic Investment Plan 2012-2017 of Uganda (JLOS 2012). 

But evidence on action taken to implement these goals is not available. To conclude, although Local Council Courts make it to high-level discussions on people-centred justice in Uganda, it is hard to ascertain if intention is being translated into action. In other words, it is not clear if Local Council Courts benefited from these high level strategies in concrete ways. 

To what extent has Local Council Courts contributed to/played a role in a broader paradigm shift towards people-centered justice?

Organisations that work on justice issues at the international level often take the Local Council Courts as an example of an informal justice system that is accessible and affordable to the people. Local Council Courts have emerged as alternative justice systems and shown that grassroots organisations are also capable of delivering justice.  Its roots in indigenous values of reconciliation and compromise set it apart from formal justice systems that deliver justice in adversarial ways. Therefore, in international development, Local Council Courts are perceived to be an example of a successful informal justice system that can be replicated in contexts where formal justice systems are inaccessible to the poor and vulnerable. Therefore, the inherent nature of Local Council Courts and their popularity among the people of Uganda has contributed to a paradigm shift at the international level in how people-centred justice can be delivered. 

  1. (1) For more information on outcomes to justice problems, see Problems page on the Justice Dashboard by HiiL.

    (2) HiiL conducted nationwide assessments of justice needs of people in Uganda. In the process it worked with several civil society organisations and justice practitioners in Uganda.

Actionaid (2017). Strategies for Justice: Access to Justice for Women.

Government of Uganda. Local Council Courts Act 2006

HiiL (2016). Justice Needs in Uganda: Legal problems in daily life

HiiL (2020). Charging for Justice Report

HiiL (2020). Justice Needs and Satisfaction in Uganda 2020: Legal problems in daily life.

Interview with a representative of LASPNET ngo in Uganda dated January 12, 2020

Interview with Allan Balamu, a member of LC-1 in Uganda dated 19 November 2020.

JLOS (2006).  Strategic Investment Plan 2006-2011.

JLOS (2017). Fourth Strategic Development Plan.

JLOS. (2012).  The Third JLOS Strategic Investment Plan 2012-2017.

Kemigisa, M. and Namara, R. (2018). Capacity Building of Local Council Courts and Transformational Leadership for Policy Advocacy in Uganda, Consortium for International Management, Policy and Development.

Khadiagala, L. (2001). The Failure of Popular Justice in Uganda: Local Councils and Women’s Property Rights. Development and Change, 32, 55-76.

Ministry of Local Government (2014). Decentralisation and Local Development in Uganda;

UNDP (2013). Rule of Law and Access to Justice in Easten and Southern Africa: Showcasing Innovations and Good Practices.

UNHCR (n.d). Protecting the rights of children in conflict with the law.

World Bank, (2009). Uganda Legal and Judicial Sector Study Report.

Case Study: Casa De Justicia in Colombia

Case study

“Casas de Justicia” in Colombia

Trend Report 2021 – Delivering Justice / Case Study: Casas De Justicia Colombia

Author: Juan Botero, Justice Sector Advisor

Out of every 1000 disputes that arise in Colombia today, how many of them are peacefully resolved through institutional dispute resolution channels and how many lead to a downward spiral of conflict which ultimately results in violence? A regular citizen who recently came to the Casa de Justicia (House of Justice) in a low-income neighborhood in Chiquinquirá, in search for the State’s help to collect an unpaid debt, was so frustrated with the system´s inadequacy to assist him, that he left in anger, admonishing that he might better “pay some tough guys to go and collect the debt for him.” (DeJusticia, p. 101).

Is the Colombian justice apparatus’ systemic failure to deal with everyday disputes one of the key reasons behind the civil war that has torn the country apart for over 50 years? As Couture advises, “Primitive man’s reaction to injustice appears in the form of vengeance… to do justice by his own hand. Only at the cost of mighty historical efforts has it been possible to supplant in the human soul the idea of self-obtained justice by the idea of justice entrusted to authorities” (Couture, ‘The Nature of Judicial Process’, p. 7).

The Colombian program of Casas de Justicia—multi-door, community dispute resolution centers—provides a valuable opportunity to test multiple dimensions of people-centered access to justice at scale in a developing country setting. Launched as a pilot project in two large low-income neighborhoods in Bogotá (Ciudad Bolívar) and Cali (Aguablanca) a quarter of a century ago, the program has expanded into 158 venues1 in 132 municipalities throughout the country. Multiple reasons make this program interesting for case study purposes: (i) Its long duration (25 years). (ii) The program’s large scale in terms of both geographical reach and number of users—between 70 and 80% of the general public in Colombia knows of the program (La Rota, p. 174; DeJusticia, P. 78). (iii) Its focus on underserved populations—Casas de Justicia are located mostly in low-income neighborhoods throughout the country. (iv) The program’s diverse settings of implementation (given large socio-economic and cultural differences across Colombian regions2), as well as its multiple justice delivery goals and available services across cities, which enable comparison of service models within one general framework. And finally, (v) the availability of data about the program.

In spite of the program’s multiple shortcomings, the Casas de Justicia have become the reference point of Justice for vast segments of the Colombian population, particularly for disadvantaged groups. While there are many critics, the program’s general acclaim has made it an example that has been studied by other countries, and which many believe contains some of the key ingredients for successful expansion of access to justice for marginalized populations in the Global South.

Program description

A World Bank´s comprehensive review of access to justice in Colombia describes the program as follows (Varela and Pearsons, p. 175):

The casas de justicia are multiagency venues that provide information on rights, legal advice, and conflict resolution services. A variety of conciliation options are offered, together with administrative and some formal justice services (Decree 1447 of 2000). Since 1995, the Ministry of the Interior and Justice, with support from USAID, has constructed a system of casas de justicia comprising some 81 houses [158 as of Oct. 2020]. Originally designed for cities with populations in excess of 100,000, casas de justicia provide rapid solutions to everyday interpersonal disputes and neighborhood conflicts. Other issues they address include personal identity verification, domestic and sexual violence, and criminal cases of lesser gravity. Services for displaced populations are also provided, and matters of institutional abuse are considered. Since 2005, a regional model―consisting of a main justice house in a medium-sized municipality and satellite houses in neighboring, much-smaller towns― has been developed to reach municipalities in zones severely affected by armed conflict. As many as 20 [42 by Oct. 2020] of the new justice houses have adopted this model, seeking to cooperate with government efforts to reestablish a state presence in such territories. Many of the new facilities will serve Afro-Colombian and indigenous communities in rural-conflict and post conflict situations, a critical step for achieving peace in Colombia. The purpose of the casas de justicia is to facilitate “one-stop” access to legal help for poor people in marginalized or conflictive neighborhoods, and to promote peaceful-dispute resolution and social cohesion. Although they vary in design, casas de justicia incorporate local prosecutors, public defenders, municipal human rights officers, municipal neighborhood affairs units, comisarías de familia, legal aid specialists, social workers, and psychologists in a variety of conciliation services. Many justice houses also include other entities such as nongovernmental women’s organizations, youth mediation services, children’s playrooms, and university law clinics, and personnel such as forensic doctors, community police officers, and representatives for ethnic-communities. Casas de justicia eliminate or reduce common access barriers and bring justice closer to the people, both physically and culturally. Procedures are free of charge, easy to arrange, and informal. Legal representation (having a lawyer present) is not required. Disputes are resolved in a timely manner. However, the sustainability of the houses is dependent on the continued participation of various institutions from the justice sector, some of which have insufficient staff to assign to small town projects; municipal political will to assume justice and conflict resolution commitments; and municipal budgets for justice services. Unfortunately, all of these factors are compounded when justice houses are located in small, war-torn areas.

Program’s overall impact: (mostly) a success story

According to the Colombian Ministry of Justice, central authority in charge of the general direction of the Casas de Justicia program, from 15 to 20 million cases have been handled by this multi-door, community dispute resolution centers, form its foundation in 19953. (DeJusticia, p. 77-78; Ministerio de Justicia, 2013). However, according to DeJusticia and La Rota, Lalinde and Upimny (2013, p. 107), by 2013 only 1.8% of the cases handled by any sort of administrative authorities were actually resolved by the Casas de Justicia program. Overall, the most prevalent use of the Casas de Justicia program according to DeJusticia  where in family disputes, criminal matters, document petitions, conflicts related to leases and public utilities, employment disputes among others (DeJusticia, p. 54).

A critical element of this analysis is the justice delivery gap in the Casas de Justicia program: While the numbers vary across sources, it appears that the program is widely known and highly popular among the general public, but not really widely used. (Awareness 70-80% – Overall use 2%. Use among the poor: 10%4.). Sources also diverge widely about impact; while some data suggest 50% of disputes are effectively resolved within a short time (and high user satisfaction), others find that the program is nothing more than a highly institutionalized placebo which seeks to defuse neighbor grievances among marginalized communities rather than to actually resolve them (Bucheli, Solano and Recalde 2017).

Finally, the program must be assessed in terms of level of achievement of its multiple goals, including that of diverting disputes away from the court system to try and resolve them through alternative administrative procedures and official and private ADR methods. In fact, participation of the formal judicial branch in the Casas de Justicia remains relatively marginal throughout the country today5. While some of them (e.g., Ciudad Bolivar) include two small claims courts as part of the services offered, in most of Casas de Justicia the most common type of state agencies present are administrative agencies, mostly at the municipal level (e.g., the office of the municipal ombudsman; the Police Inspector or the community development office). Agencies at the national level such as work and labor inspectors from the Ministry of labor, a delegate of the National Registry office or the Instituto Colombiano de Bienestar Familiar (minors defense agency), are also commonly present. (Ministry of Justice, 2012, p. 12)6.

The theory behind the program—why is this program potentially replicable across developing countries? What exactly is replicable?

The literature identifies four theoretical models of justice delivery that are behind the Casas de Justicia program in Colombia (see, e.g., DeJusticia, p. 23): The first one is the Efficiency Model, in which the program’s main goal is to divert cases away from the judicial system by providing alternative dispute resolution systems (ADR) trough multi-door courthouses, where litigants may use other ways to resolve their disputes rather than taking them to an overburdened court system. This model, originally proposed by Harvard Law professor Frank Sander in 19767, was enthusiastically adopted by the United States Agency of International Development (USAID) and implemented in Colombia and many other countries (e.g., Guatemala, Paraguay, Dominican Republic and Argentina), over the past three decades (Hernández, 2012, p. 363-393).  The original Casas de Justicia in Colombia were set up with USAID help, and the same donor has continued to support the program until today.

The second model is the Access Model, it which the program’s main goal is to reduce conflicts in society by enhancing access to justice for marginalized communities. This model has been implemented in Europe (France, Spain) through a variant of the multi-door courthouse called Justicia de proximindad (justice of proximity), which not only seeks to resolve disputes but also to prevent them through an alternative approach to justice that is multi-disciplinary in nature and reaches out to the community (see, e.g., Herrera; Carretero; Armenta Deu 2006). While the original impetus behind the Colombian Casas de Justicia was USAID’s efficiency model, most of these Houses have been set up under the access model—with the goal of expanding access to justice to underserved populations, by bringing multiple agencies and private dispute resolution venues under the same roof, in the poorest neighborhoods and violence thorn small towns. While this model also seeks to prevent and resolve disputes away from the court system, its emphasis on prevention and community outreach sets it apart.

According to multiple studies, some of the Casas de Justicia’s shortcomings are tied to the program’s ambivalence between enhancing efficiency and widening access, i.e., to the contradiction between competing goals (DeJusticia p. 25; Bucheli, Solano and Recalde 2017).

The third model proposed in the literature for the establishment of the Casas de Justicia in Colombia is the State consolidation model, in which a program originally intended for large cities (over 100,000 population), has been taken to smaller towns in regions severely affected by armed conflict, in order to help cement the State presence (Varela and Pearsons, p. 175; DeJusticia, p.41)8. This model is one of territorial expansion of the State in a conflict and post conflict setting.

Finally, some authors have argued that Casas de Justicia do not really seek to prevent or resolve disputes, but rather to simply defuse them. According to this critical perspective, the Houses are not more than listening devises (much like a peer support group) where marginalized populations can take their disputes to an “authority” and be heard, but without any real expectation of resolving the dispute. We call this the Placebo justice model.

The above description shows the program´s richness for purposes of testing multiple dimensions of citizen-centered access to justice at scale in a developing country setting. The diversity of contexts and design variations of the program suggest the following key variables for consideration:

Some of these variables were identified in HiiL’s latest Trend Reports as key determinants of people-centered justice delivery.  

Program analysis

The following pages assess the Casas de Justicia program in terms of the five dimensions defined in the first chapter of this publication

Problems and impacts

People-centered justice focuses on the most pressing injustices that people experience. How and to what extent has the Casas de Justicia program measured and mapped the most prevalent justice problems in Colombia? Those of greatest impact? Those that are most difficult to resolve and therefore tend to remain ongoing? Those affecting the most vulnerable populations? While assessments of the program diverge, the weight of the evidence indicates that the program has been generally effective in addressing the most pressing justice needs of the most vulnerable urban population. According to the program national director at the Ministry of Justice (interview, October 8, 2020), with 158 venues8 in 132 municipalities throughout the country, the program has reached about 70% of its target population. Given that about three quarters of Colombians live in these cities, in terms of reach, the program has been successful. In terms of user satisfaction, the program is generally regarded as better than the alternative (the formal court system). While measuring effectiveness is extremely difficult, some data suggests that about 50% of disputes are resolved at the Casas de Justicia.  In terms of timeliness, the program’s informal approach (without the need for a lawyer) makes it generally faster than the court system, and in those Houses where there are courts (e.g., small claims courts at Ciudad Bolivar), some evidence suggests that proceedings are handled significantly more efficiently and speedily than in regular courts. Finally, some studies have found the program’s significant influence on shaping social representations of justice among target communities, with meaningful impacts on dispute resolution practices (Navarro Carrascal and Diafeiria 2010).

In terms of targeting the most prevalent justice needs among the most vulnerable populations, the program has been remarkably successful in urban settings. According to the Ministry of Justice, close to 50% of all petitions for conciliation or redress at the houses of justice during the year 2013, were filed by people belonging to the poorest sextile of the Colombian population (“estrato 1”), and another 45% by people belonging to the second and third lowest sextile (Dejusticia, p. 55-56), and this trend remains generally unchanged until today. This means that the program has overwhelmingly served the low- and middle-income urban population, as it was originally intended. Since unattended justice needs are disproportionately higher among low-income people in Colombia (Corporación Exelencia en la Justicia; Ministerio de Justicia; La Rota, Lalinde and Uprimny, 2013, 2017), the program has succeeded in targeting the most prevalent justice needs among the most vulnerable urban populations.

Evidence on the program’s effectiveness in rural areas remains disputed. An important share of violence and crime in Colombia take place in rural settings. Not only the drug and guerrilla conflicts are overwhelmingly rural, but according to Colombian´s National Police (2019), many crimes are also more prevalent in rural areas, including burglary and kidnappings. It is unclear whether the gentle-hand approach to justice of the houses of justice model (which is largely centered around ADR options) is effective to address the most pressing justice needs of the rural population. The capacity and effectiveness of administrative agencies and procedures to resolve disputes in rural setting, where the State presence in Colombia has been traditionally weak (García Villegas), is also limited—dispute resolution services in large segments of the country have been effectively delivered for decades by guerrilla and paramilitary groups. Casas de Justicia do not seem a viable option to address the most pressing injustice that people suffer in rural settings.

Finally, one highly popular component of the program’s outreach efforts is the mobile Houses of Justice, where the various participating institutions deliver justice off site, at various neighborhoods or in rural areas. While this program is widely popular among both the public and the officers that were interviewed for this study, there is no evidence of its effectiveness. One expert called it “justicia golondrina” (swallow justice), after the bird that only comes from time to time, without leaving any meaningful footprint. Several experts consider that this kind of program is extremely difficult to sustain under the current model and level of resources, and thus not effective. Moreover, some suggest that it may be counterproductive, as it creates unreasonable expectations of access among the public that turn into frustration for lack of follow up. In a middle-income country setting, expanding access beyond available means may lead to overreach and it may ultimately harm the legitimacy and effectiveness of the justice system.

Defining and monitoring outcomes

People-centred justice aims for solutions people need to move on with their lives. How and to what extent has the Casas de Justicia program researched and identified the outcomes that people expect from justice processes? Does the program deliver these outcomes? Is there an efficient and effective data collection and monitoring system to track the program’s operation and a system of indicators that tracks whether processes deliver these outcomes and allow people to move on?

Evidence on defining and monitoring outcomes suggest that most houses of justice have been set up without sufficient evaluation of the prevailing justice needs of the community10. Officers suggest that justice needs among the poor are so prevalent in Colombia, that little or no assessment is necessary, as long as the inter-agency alignment is present to set up one of these houses (DeJusticia; interviews). Most experts believe that variations in justice needs across cities and regions in Colombia are of such magnitude, that the model should not be implemented as a one-size-fits-all approach or under the assumption that it will be used. In fact, over the years some houses have turned into “white elephants,” mostly empty buildings where very little service is provided (due to issues of financial and political sustainability, which are addressed below).

Multiple studies (Casas de Justicia de Medellin; DeJusticia; USAID; Programa Nacional de Casas de Justicia y Convivencia Ciudadana) indicate that the program’s information system is deficient and not generally used. Each house captures data on cases coming in, but very little information is available on whether disputes were actually solved, so that people could move on with their lives. Anecdotal evidence and general surveys on user satisfaction suggest that the service provided at some of the Casas de Justicia is far superior to the alternative (the formal court system).

Finally, according to Bucheli, Solano and Recalde’s (2017) thorough analysis of the Casa de Jusitica in Aguablanca, Cali (one of the two original pilot projects, which has been in operation for over 25 years), the Casa de Justicia serves the purpose for the government to demonstrate that it is doing something while in reality it is doing little more than numbing the pain, without really curing the underlying injury:

"In the House of Justice, the emphasis on measurement indicators and outcomes in terms of 'number of cases dealt with' contribute to generating an image of justice as social proximity. This is a successful state measuring, counting, reporting, but an empty, passive and absent state in formulating alternative solutions for those who speak. As a result, it represents the paradox of attending by disappearing." (p. 202)

The authors state that while many people are listened to, very few are actually served with meaningful solutions. Thus, they suggest that this House is little more than a listening device or support group, not a real solution to justice needs. 

Other authors are even more critical of the program, suggesting that it may have actually help to keep gross human rights violations hidden, under the cover of the do-it-yourself justice template of the houses of justice. According to Stacey Hunt (2010): 

Justice Houses were supposed to reduce violence and impunity by helping citizens negotiate the complex legal system and report crimes. Yet the Houses primary programming focuses on teaching civilians how to resolve their own justice problems. Victims of human rights violations are taught mechanisms of peaceful conflict resolution and community justice, including reconciliation, tolerance for difference, and conflict mediation. Based on three months of interviews, archival research, and participant observation at the Justice Houses, I explore the differentiated effects on and responses from community members. I illustrate the local perversion of globalized discourses of conflict resolution and restorative justice. Finally, I demonstrate how these discourses and policies have perpetuated impunity for both crimes against humanity committed by paramilitaries as well as for routinized forms of gender, sexual, and domestic violence.

Unfortunately, weaknesses in the program´s data collection and analysis system, as well as uneven participation among diverse agencies across houses around the country and unequal commitment from local authorities, makes it extremely difficult to assess whether existing data on justice delivery at the houses of justice are nothing more than “people listened to” (or case files moved from one desk to the other without real impact on people´s lives), as Bucheli, Solano and Recalde (2017) suggest, or whether these figures effectively represent over 20 million justice needs actually met, as the Ministry of Justice claims.  Anecdotal evidence collected in this research in several houses across the country, suggest that while some users left the house with a sense of having received an answer to their needs, others felt that the authorities “did more to confuse them than to actually help them”.  In the absence of reliable data on outputs and outcomes, the program´s success remains unproven.  

Evidence-based solutions

People-centred justice enables citizens and justice workers to systematically improve the ways to achieve solutions. How and to what extent has the Casas de Justicia program introduced interventions that are evidence-based and consistently deliver the justice outcomes that people in the target population look for? Has the program used outcome-based monitoring to continuously improve these interventions and replace interventions that have proven ineffective?

While there have been various assessments of the program (DeJusticia; USAID; Ministerio de Justicia; Colprensa) the program has remained essentially unchanged since its formalization under Decree 1477 of 2000. These studies have identified some of the program’s strengths but also very significant weaknesses, which have not been addressed. A further review is currently underway under the auspices of the Ministry of Justice and the National Planning Agency, which may lead to reform. 

Virtually all assessments of the program conducted over the past two decades indicate that decisions on resource allocation, prioritization of cases, and expansion and reduction of services (through the construction of new houses or through adding or removing agencies involved in existing ones), are made on the basis of purely bureaucratic considerations or on the good intentions of government officers, rather than out of careful, evidence-based determination of needs and results in the community (DeJusticia; Buchely et al. 2017) Moreover, the lack of proper outcome monitoring prevents evidence-based adjustment of services—since neither the houses nor the individual agencies regularly follow situations of conflict over time, they do not know whether, how and to what extent, a particular justice situation evolves into a downward spiral of conflict that ultimately leads to violence. 

Abundant anecdotal evidence collected during the interviews suggest that current handling of justice needs on a per-case basis is ineffective and it represents a missed opportunity. While both the House coordinator and the reception point (triage system) try to integrate a multi-agency response to incoming cases, a particular situation is normally handled by one agency (e.g., a debt collection problem may end up as a case for police mediation, for equitable conciliation, or become a case for the small claims court). Rarely is this case considered on a multi-agency basis in the context of the whole situation, e.g., in a debt collection case, the justice machinery is not designed to systematically ask whether the debtor was unable or unwilling to pay, and why. 

Various officers and small claims court personnel at the Casa de Justicia of Ciudad Bolivar (the first one and one of the largest) told us about several cases in which they were able to coordinate highly effective inter-agency responses to particular cases, to address the whole underlying situation rather than the specific case at hand. For instance, in one eviction case that was brought before a small claims judge against an elderly person, the judge practiced an in-situ assessment of the case and saw the appalling situation in which this elderly person was living. Out of her own initiative, the judge issued letters to various government agencies, requesting assistance for the defendant.  Moreover, since the judge was unable to confirm that the landlord was the legal owner of the small room in which the defendant lived, she delayed the eviction process while allowing for other municipal government agencies to intervene. At the end, Social Services (Secretaria de Inegración Social) intervened; they took the elderly person and provided him with a proper dwelling. Other agencies assisted as well. The successful outcome of this case is in part a consequence of the physical proximity of officers under the same Casa de Justicia—since they go for coffee or lunch together and get to know each other, they informally refer cases to one another and try to let justice prevail in the broader context of the whole situation of cases brought before them. However, this holistic approach to justice is the exception rather than the rule. 

In the above example and many other cases that were handled in this holistic way, inter-agency coordination at the Casa de Justicia was mostly a personal choice of the officers involved, out of compassion. In purely bureaucratic terms, the judge in the above case did not do what she was supposed to do—she deliberately delayed the eviction case on a technicality, in order to protect the elderly person in need. While the outcome was correct, this success story does not as much reflect the system’s overall merit as an well-oiled machine, as the good nature and judgment of a handful of officers involved. 

The Casas de Justicia program is designed to bring agencies under the same roof and to enable users to go through a triage system to allocate cases more efficiently. It is not designed to consider justice needs in the broader context of whole situations—in which, as it is almost always the case, one particular justice need is inevitably related to many others. Debt collection issues, family violence, labor or neighbor disputes, and criminal cases, are rarely independent of each other; they are often multiple faces of the same underlying situation.  From this perspective, the program represents a step in the right direction, without fully reaching the end goal. 

Innovations and delivery models

People-centred justice creates new service delivery models, reaching millions of people sustainably.  How and to what extent has the Casas de Justicia program scaled their people-centered service delivery model to deliver justice outcomes for a larger target population? Is the program sustainable? Does it consider public-private partnerships or smart (user) contributions? (See, HiiL Trend Report 2020, “Charging for Justice”). 

As it was explained above, the Casas de Justicia program have been enormously successful in delivering people-centered justice at scale to marginalized populations throughout most large and medium-sized urban centers in Colombia. They are, indeed, the reference point of Justice for most low-income people in the country, handing over 20 million cases in the past two decades. Yet, the program also has equally large room for improvement. 

Lack of consistency of service delivery (independence of political winds at the national, regional and municipal level) and issues of financial sustainability, are two persistent and highly related problems facing the Casas de Justicia throughout the country.  These twin problems are largely related to the program’s design, as it is explained below. 

Since the service delivery model depends upon voluntary participation of multiple independent agencies that belong to different levels of government (national, regional, local), and to different branches of government (executive, judiciary and independent control organisms), coordination among them represents a major bureaucratic challenge. Several issues have been consistently identified by multiple studies: 

All of the above factors compound among them into a negative circle loop, which ultimately affects the quality of the services offered to people. 

Finally, regarding public-private partnerships or smart (user) contributions, as mentioned above, the houses have been generally successful in securing partnerships with the legal clinics of local universities and local chambers of commerce, to provide in-site conciliation and legal advice services to users.  Since the primary target of the Houses of Justice are marginalized communities, all services are provided free-of-charge—smart (user) contributions are not present. 

Enabling environment

People-centred justice pushes for a financial, regulatory and legal regime that makes it happen. How and to what extent have regulatory and financial systems created/enabled by the government supported the Casas de Justicia program and made it possible for this service/activity to scale?  How and to what extent have the outcomes-based, people-centered services delivered by the Casas de Justicia program been allowed to become the default procedure? How and to what extent has the Casas de Justicia program stimulated (or benefitted from) investment into justice research and development?

As explained above, the basic regulatory framework remains essentially unchanged since year 2000. A comprehensive review of the program is currently underway and preliminary conclusions of this study suggest the need to implement regulatory changes, particularly in order to improve inter-agency coordination mechanisms. 

Secondly, also mentioned above, the Casas de Justicia have become the default avenue for handling conflicts at low-income neighborhoods throughout the country’s urban centers. Expansion to rural areas have proven problematic, in light of logistical and financial challenges, and due to the pervasive violence still affecting large parts of the country. 

Finally, the Casas de Justicia program have not stimulated (or benefitted from) investment into justice research and development. The basic theoretical models in which the program is based, were developed several decades ago. 

Leadership and pathways

People-centred justice requires effective leadership, rising to the challenge of a paradigm change, with new skills and relationships, discovering pathways to a justice system that does not let people down, and truly ensures equal access to justice for all. How and to what extent have justice sector leaders’ skills and collaborations enabled/hindered the Casas de Justicia program to increase access to justice by delivering the outcomes people need at scale? How and to what extent has the Casas de Justicia program contributed to/benefited from new high-level strategies or pathways towards people-centred justice in Colombia? To what extent has the Casas de Justicia program contributed to/played a role in a broader paradigm shift towards people-centered justice?

Evidence is mixed. Despite all the program’s difficulties and shortcomings, it has significantly contributed to a paradigm shift about people-centered justice in Colombia, which may be successfully improved and even replicated in many countries throughout the Global South. Its focus on bringing justice closer to users (particularly those most in need), through inter-agency coordination at the local level, has been a remarkable success. The chaotic expansion and implementation of the program throughout the country, its dearth of reliable data on outputs and outcomes, and uneven service delivery across municipalities, are weaknesses in need of attention, which will require major changes at both the regulatory and operational levels. 

A note on methodology

Data for this case study comes from: 

1 As of October, 2020, the Programa Nacional de Casas de Justicia y Centros de Convivencia Ciudadana (National Program on Houses of Justice and Citizen Coexistence Centers) includes 116 Casas de Justicia and 42 Centros de Convivencia.

2 While Colombia is classified by the World Bank as an upper middle-income country, internal variations across regions cover the span of the developing world. Socio-economic indicators of some of the country´s regions, e.g., the Pacific coast, are comparable to those of the world’s least developed nations. Variations in terms of ethnicity are also significant. Finally, some regions have experienced longstanding internal armed conflict, while others are relatively peaceful, which translates into diverging levels of exposure to violence and diverse dispute resolution needs.

3 It should be noted that according to  DeJusticia, (p.49, 78) the official figure of users regarding the Casas de Justicia program is not accurate, as the program does not have reliable means of receiving and processing data on users and services at large scale across the country.

4 DeJusticia; Ministerio de Justicia y el Derecho; USAID; World Bank.
5 For instance, the Consejo Superior de la Judicatura as main administrative body of the Colombian Judiciary is not formally involved in the development of the Casas de Justicia program according to its foundational Law and Decree.

6 In some cases, other special agencies are present in the Casas de Justicia. For example, in municipalities that have a relevant presence of indigenous or ethnic communities, a office of Ethnic affairs the Ministry of Interior is present.

7 “In 1976, [Harvard Law School professor Frank Sander] delivered a seminal paper, “Varieties of Dispute Processing,” at the Pound Conference. In it, Professor Sander put forth the notion of the multi-door courthouse—a multifaceted dispute-resolution model currently used in several settings in the United States and abroad” (Sander and Hernández Crespo, 2008, p. 667).

8 For example, in the design of development of the Casas de Juticia program, a three-category scheme was envisioned, where municipalities were prioritized according to their population. (Ministerio de Justicia, 2012, p. 34).

9 As of October, 2020, the Programa Nacional de Casas de Justicia y Centros de Convivencia Ciudadana (National Program on Houses of Justice and Citizen Coexistence Centers) includes 116 Casas de Justicia and 42 Centros de Convivencia.

10 The Casas de Justicia program provides that before opening a house of justice, the municipality must conduct thorough research on legal needs and a diagnosis of the most prevalent types of conflict in the proposed area (Ministerio de Justicia, 2012, p. 39). Nonetheless, as the adoption of the program is discretionary by the municipalities, the house may be set up without regard to actual legal needs.

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Case Study: Problem-Solving Courts in the US

Case study

Problem-Solving Courts in the US

Trend Report 2021 – Delivering Justice / Case Study: Problem-Solving Courts in the US

Author: Isabella Banks, Justice Sector Advisor

Introduction

Problem-solving courts are specialised courts that aim to treat the problems that underlie and contribute to certain kinds of crime (Wright, no date). “Generally, a problem-solving court involves a close collaboration between a judge and a community service team to develop a case plan and closely monitor a participant’s compliance, imposing proper sanctions when necessary” (Ibid).  In the past three decades, problem-solving courts have become a fixture in the American criminal justice landscape, with over 3,000 established nationwide. All 50 states have appointed a statewide drug court coordinator, and at least 13 have introduced the broader position of statewide problem-solving court coordinator (Porter, Rempel and Mansky 2010; J. Lang, personal communication, October 28, 2020).

What does it mean for a court to be problem-solving?

Although a number of different types of problem-solving courts exist across the US, they are generally organised around three common principles: problem-solving, collaboration, and accountability (Porter, Rempel and Mansky 2010, p. iii.).

Problem-solving courts are focused on solving the underlying problems of those who perpetrate or are affected by crime. This includes reducing recidivism as well as rehabilitating participants (with the exception of domestic violence courts, as elaborated below), victims and the broader community (Ibid. p. iii.).

Problem-solving courts are also characterised by interdisciplinary collaboration among stakeholders in and outside of the criminal justice system. Dedicated staff who have been assigned to the problem-solving court work together to develop court policies and resolve individual cases in a relatively non-adversarial way. Ongoing collaboration between court staff and public agencies, service providers and clinical experts is also essential for providing appropriate treatment to problem-solving court participants (Ibid. p. 38). Because problem-solving courts aim to address the impact of crime on the community and increase public trust in justice, they also have frequent contact with community members and organisations and regularly solicit local input on their work (Ibid. p. 39).

Problem-solving courts aim to hold individuals with justice system involvement, service providers and themselves accountable to the broader community. For individuals with justice system involvement, this means holding them accountable for their criminal behaviour by promoting and monitoring their compliance with court mandates. In order to comply, problem-solving court participants must understand what is expected of them, regularly appear for status hearings, and have clear (extrinsic and intrinsic) incentives to complete their mandates. 

For service providers, this means providing services based on a coherent, specified and effective model, and accurately and regularly informing the court about participants’ progress. Problem-solving courts are also responsible for assessing the quality of service delivery and making sure models are adhered to (Ibid. p. 43-44). 

Lastly and perhaps most fundamentally, problem-solving courts must hold themselves to “the same high standards expected of participants and stakeholders” (Ibid. p. 44-45).  This means monitoring implementation and outcomes of their services using up-to-date data. 

What does problem-solving justice look like in practice?

Problem-solving justice comes in different forms. The original, best known, and most widespread problem-solving court model is the drug court. The first drug was created in 1989, after a judge in Miami Dade county became frustrated seeing the same drug cases cycling through her court and began experimenting with putting defendants into treatment (P. Hora, personal communication, October 16, 2020). This approach (elaborated in the sections that follow) gradually gained traction, and there are now over 3,000 drug courts across the US (Strong and Kyckelhahn 2016).

This proliferation of drug courts helped stimulate the emergence of three other well-known problem-solving court models: mental health, domestic violence and community courts (Porter, Rempel and Mansky 2010, p. iii.). Mental health courts are similar to drug courts in that they focus on rehabilitation, but different in that they aim for the improved social functioning and stability of their participants rather than complete abstinence (Ibid. p. 51). Domestic violence courts are unique in that they do not universally embrace participant treatment and rehabilitation as an important goal. Instead, many – thought not all – are primarily focused on victim support and safety and participant accountability and deterrence (Ibid. p. 52). 

Community courts “seek to address crime, public safety, and quality of life problems at the neighbourhood level. Unlike other problem-solving courts…community courts do not specialise in one particular problem. Rather, the goal of community courts is to address the multiple problems and needs that contribute to social disorganisation in a designated geographical area. For this reason, community courts vary widely in response to varying local needs, conditions, and priorities” (Lee et al. 2013). There are now over 70 community courts in operation around the world (Lee et al. 2013, p.1). Some are based in traditional courthouses, while others work out of storefronts, libraries or former schools. Though they typically focus on criminal offences, some community courts extend their jurisdiction to non-criminal matters to meet specific needs of the communities they serve as well (Ibid. p. 1.). Regardless of location and jurisdiction, all community courts take a proactive approach to community safety and experiment with different ways of providing appropriate services and sanctions (Wright n.d.).

Other less common problem-solving models include veterans courts, homeless courts, reentry courts, trafficking courts, fathering courts, and truancy courts (Ibid). 

The principles and practices of problem-solving justice can also be applied within non-specialised courts that already exist. In a 2000 resolution that was later reaffirmed in 2004, the Conference of Chief Justices and Conference of State Court Administrators advocated for, “Encourag[ing], where appropriate, the broad integration over the next decade of the principles and methods of problem-solving courts into the administration of justice to improve court processes and outcomes while preserving the rule of law” (Porter, Rempel and Mansky 2010, p. 3). Key features of a problem-solving approach to justice – which will be elaborated in the sections that follow – include: individualised screening and problem assessment; individualised treatment and service mandate; direct engagement of the participant; a focus on outcomes; and system change (Ibid. p. iv).

Problems and impacts

How and to what extent have problem-solving courts measured and mapped the following as a first step towards people-centred justice?

As their name suggests, problem-solving courts emerged to address the most prevalent, impactful, and difficult to resolve justice problems within the populations they serve. The first drug (and Drinking While Driving or DWI) courts were created as a response to the increase in individuals with substance use disorders in the criminal justice system and their levels of recidivism. Similarly, mental health courts “seek to address the growing number of [individuals with mental health needs] that have entered the criminal justice system” (Wright n.d.). As one interviewee put it, “The biggest mental health provider [in Los Angeles] is the county jail” (B. Taylor, personal communication, October 5, 2020).

Drug and mental health problems are among the most common issues faced by individuals responsible for both minor and more serious crime. These issues are difficult to resolve because judges – who have historically had little understanding of treatment and addiction – are inclined to hand down harsh sentences when defendants relapse or fail to complete their court mandate (B. Taylor, personal communication, October 5, 2020). This trend was particularly acute in the 1980s, when the war on drugs resulted in draconian sentencing laws that reduced judicial discretion (P. Hora, personal communication, October 16, 2020).

In order to understand and meet the needs of their unique populations, problem-solving courts track measures of problem prevalence and severity. As noted in the first section, early and individualised screening and problem assessment is a key feature of problem-solving justice. The purpose of such screenings is to “understand the full nature of the [participant’s] situation and the underlying issues that led to justice involvement.” 

For drug courts, relevant measures of problem severity may include: drug of choice; years of drug use; age of first use; criminal history; and treatment history (Porter, Rempel and Mansky 2010, p. 50). Mental health courts typically assess the nature and severity of their participants’ underlying mental health issues, and may also look at participant stability (in terms of health care, housing, compliance with prescribed medications, and hospitalisations) (Ibid. p. 51). 

Domestic violence courts and community courts are somewhat unique in that the primary population they serve include victims and members of the community as well as individuals with justice system involvement. Domestic violence courts focus on assessing the needs of victims of domestic violence in order to connect them with safety planning and other individualised services. Likewise, in addition to identifying the problems that impact individual participants, community courts focus on assessing the problems that impact the underserved (and also often disserved) neighbourhoods where they work. These should be identified through outreach in the relevant community but often include concentrations of lower level crimes – such as vandalism, shoplifting, and prostitution – as well as distrust of traditional justice actors (Ibid. p. 55-56).

Now that technical assistance is broadly available for problem-solving courts across the US, individualised screening and problem assessment has become increasingly data-driven and informed by validated needs assessment tools (B. Taylor, personal communication, October 16, 2020). 

Over the years, problem-solving courts have also become more adept at identifying groups within the populations they serve that are particularly vulnerable to injustice. The advancement of brain science, for example, has influenced many problem-solving courts to treat participants under 25 differently and give them an opportunity to age out of crime. Young people transitioning out of foster care are particularly vulnerable to justice involvement given their sudden lack of family support. Trafficked individuals, who used to be treated as criminals, are now widely recognised as victims (Ibid). Specialised problem-solving courts, diversion programs, and training initiatives have emerged to understand the unique needs and vulnerabilities of this population (Wright n.d.).

Problem-solving courts have also become more aware of racial inequities in the populations selected to receive treatment (B. Taylor, personal communication, October 16, 2020). Drug court participants in particular are often disproportionately white, with racial breakdowns that do not mirror the racial breakdowns of those arrested. This is largely a result of eligibility requirements tied to federal drug court funding, which has historically restricted individuals with violent criminal histories from participating. Drug courts have also been accused of cherry-picking participants who were most likely to be successful to improve their numbers and receive more funding. Both of these phenomena have had the effect of excluding disproportionate numbers of people of colour from drug treatment (Ibid). In addition to taking steps to mitigate these inequities, drug courts have increasingly come to recognise that cherry-picking low-risk cases reduces their effectiveness overall (P. Hora, personal communication, October 16, 2020).

Defining + Monitoring Outcomes

How and to what extent have problem-solving courts researched and identified the outcomes that people in the target population expect from justice processes?

In 1993, the first community court was set up in the Midtown neighbourhood of New York City (Lee et al. 2013, p.1). Inspired by the Midtown model, the Red Hook Community Justice Center was established in a particularly disadvantaged area of Brooklyn seven years later. Like the Midtown Court, the goal of the Red Hook Community Justice Center was “to replace short-term jail sentences with community restitution assignments and mandated participation in social services” (Taylor 2016). 

In the planning stages however, residents of Red Hook were not happy to learn that a new court was being introduced in their community. Though sustained community outreach, Red Hook court staff were able to change these negative perceptions and convince residents they wanted to do something different. They began by asking the community what outcomes were most important to them (B. Taylor, personal communication, October 5, 2020).  

This early engagement helped the Red Hook planners realise that tracking outcomes related to people’s presence in the court would not be enough to assess the court’s impact in the community. They would also need to look at outcomes that were meaningful to residents, asking questions like: How can we disrupt crime hot spots? How safe does the community feel? Do residents feel safe walking to the park, or the train? At what times? (Ibid).

Although the Red Hook community court model has since been replicated in different parts of the world, the experiences of two of these international courts illustrate that identifying the outcomes that community members expect from justice processes can sometimes be a challenge.

In 2005, England opened its first community court: the North Liverpool Community Justice Centre (NLCJC). A 2011 evaluation of the NLCJC acknowledged its innovative approach and “potentially transformative effect on criminal justice” but also noted:

How and why the Centre needs to connect with the public it is charged with serving remains one of the most complex and enduring concerns for staff...how consistently and how effectively the ‘community’ was contributing to the workings of the Centre provided a constant source of uncertainty” (Mair and Millings 2011).

After eight years of operation, the NLCJC was closed in 2013. Observers have since noted that a lack of grassroots community engagement in the planning and operation of the NLCJC was among the primary reasons that it ultimately failed to take hold (Murray and Blagg 2018; J. Lang, personal communication, October 28, 2020). 

One year after the NLCJC opened in England, the Neighbourhood Justice Centre (NJC) was piloted in the Collingwood neighbourhood of Melbourne, Australia. At the time, Collingwood had the highest crime rate in Melbourne, high rates of inequality, and a high concentration of services. This combination made it an ideal location for Australia’s first community court. 

Modelled on the Red Hook Community Justice Centre in Brooklyn and spearheaded by the State Attorney General at the time, Rob Hulls, the NJC pilot was focused on improving the community’s relationship with the justice system through local, therapeutic and procedural justice. Like Red Hook, it was designed based on evidence and an analysis of gaps in existing justice services. Despite shifting political winds –  including “tough-on-crime” rhetoric on the one hand and complaints of more favourable “postcode justice” available only for the NJC’s participants on the other – the NJC managed to secure ongoing state government support (J. Jordens, personal communication, October 19, 2020). 

Unlike the NLCJC, the NJC remains in operation today. The procedurally just design of the NJC building and approach of its magistrate, David Fanning, have earned the court significant credibility and legitimacy in the Collingwood community (Halsey and Vel-Palumbo 2018; J. Jordens, personal communication, October 19, 2020). Community and client engagement have continued to be a key feature of the NJC’s work, helping to reduce recidivism and increase compliance with community-based court orders (Halsey and Vel-Palumbo 2018) .

In spite of its success, some observers note that the NJC’s outreach efforts have not gone as far as they could have. Early consultations with a group of community stakeholders regarding the design and governance of the NJC were discontinued in the Centre’s later years. Although the reason for this is unclear and may well have been legitimate, the result was that key representatives of the community lost direct and regular access to NJC leadership over time (J. Jordens, personal communication, October 19, 2020). 

These examples illustrate that even under the umbrella of a one-stop-shop community court, identifying expected justice outcomes in the community as a first step towards problem-solving justice – and continuing to do so even after the court is well-established – is not a given. The extent to which this is achieved depends on the approach of the particular court and its efforts to create a reciprocal and collaborative relationship with the surrounding community.

How and to what extent have problem-solving courts determined whether existing justice processes deliver these outcomes and allow people in the target population to move on?

Problem-solving courts generally – and community courts and drug courts in particular – are created with the explicit intention to address gaps in existing justice processes. 

Community courts are typically established in communities that have been historically underserved and disproportionately incarcerated to provide a more holistic response to crime and increase trust in the justice system. 

In the early days of the Red Hook Community Justice Center, the community’s deep distrust of law enforcement emerged as a key challenge for the Center’s work. Red Hook staff approached this challenge by inviting police officers into the court and showing them the data they had collected on the justice outcomes that residents were experiencing. They helped the officers understand that by not addressing the root causes of crime in the Red Hook community, they were delaying crime rather than stopping it (B. Taylor, personal communication, October 5, 2020).

Over time, the court’s relationship with law enforcement has improved. In 2016, the Justice Center launched its “Bridging the Gap” initiative, which creates a safe space for young people and police officers to get to know each other and discuss difficult topics that offer the chance to explore the other’s perspective (Red Hook Justice News 2016; Sara Matusek 2017).

Similarly, the proliferation of drug courts across the country was a response to high rates of recidivism among individuals with substance use disorders, which persisted in spite of tough-on-crime sentencing practices. During the so-called “war on drugs” in the mid-1980s, judges across the country gradually began to realise that handing down increasingly long sentences to people with substance use disorders was not working. 

One such person was the late Honourable Peggy Hora, a California Superior Court judge responsible for criminal arraignments. Like other judges repeatedly confronted with defendants grappling with substance use disorders in the 1980s and 90s, Judge Hora initially felt that incarceration was the only tool available to her. Not much research had been done on incarceration at the time, so its detrimental effects were not yet widely known (P. Hora, personal communication, October 16, 2020). 

Determined to understand why the defendants that came before her seemed to be willing to risk everything to access drugs – even their freedom and the right to see their children – Judge Hora took a class on chemical dependency. This experience brought her to the realisation that “everything they were doing was wrong.” She quickly built relationships with people at the National Institute on Drug Abuse and began engaging with drug treatment research at a national level (Ibid). 

Judge Hora eventually went on to establish and preside over the nation’s second drug court in Alameda County, California. After learning more about procedural justice and seeing evidence that early drug courts worked and saved money in the long run, she helped promote the model across the country and around the world (Ibid).

How and to what extent have problem-solving courts created a system for monitoring whether new, people-centered justice processes deliver these outcomes and allow people in the target population to move on?

Outcomes monitoring is an essential component of problem-solving justice. As Rachel Porter, Michael Rempel, and Adam Manksy of the Center for Court Innovation set out in their 2010 report on universal performance indicators for problem-solving courts:

It is perhaps their focus on the outcomes generated after a case has been disposed that most distinguishes problem-solving courts from conventional courts. Like all courts, problem-solving courts seek to uphold the due process rights of litigants and to operate efficiently, but their outcome orientation demands that they seek to address the underlying issues that precipitate justice involvement (Porter, Rempel and Mansky 2010, p. 1.).

Measuring and monitoring people-centred outcomes was also key to problem-solving courts’ early success. Because the problem-solving approach was so different from the status quo, showing evidence that it worked was necessary for building political and financial support. This meant clearly articulating the goals of problem-solving courts and finding ways to measure progress towards them (B. Taylor, personal communication, October 14, 2020).

In their report, What Makes a Court Problem-Solving? Porter, Rempel, and Mansky identify universal indicators for each of the three organising principles of problem-solving courts. They include: (under problem-solving) individualised justice and substantive education for court staff; (under collaboration) links with community-based agencies and court presence in community; and (under accountability) compliance reviews, early coordination of information, and court data systems (Porter, Rempel and Mansky 2010, p. 57).  Many of these problem-solving principles and practices can be (and are) applied and monitored in traditional courts. 

To ensure delivery of individualised justice for example, any court staff can engage the individuals appearing before it by making eye contact, addressing them clearly and directly, and asking if they have any questions about the charges or their mandate (Ibid). This kind of engagement can “radically change the experience of litigants, victims, and families” and “improve the chance of compliance and litigant perceptions of court fairness” (Ibid). Similarly, any court can prioritise and track its use of alternative sanctions – such as community service or drug treatment – and its efforts to link individuals to existing services in the community (Ibid).

The extent to which a particular (problem-solving or traditional) court monitors progress towards these people-centred outcomes depends on its ability to track compliance and behaviour change among participants. This can be achieved through regular compliance reviews, which provide “an ongoing opportunity for the court to communicate with [participants] and respond to their concerns and circumstances” (Ibid. p. 60-61). Investing in electronic data systems that track and coordinate information also makes it easier for a court to monitor its overall impact on case outcomes and improve the quality of its mandates (Ibid).

Successful outcomes monitoring also depends crucially on a court’s ability to develop strong relationships with researchers. Without this, early problem-solving courts like the Red Hook Community Justice Center would not have been able to, for example, quantify the impact of a 7-day jail stay in terms of budget, jail population, and bookings per month. Strong research partnerships also made it possible to compare successful and unsuccessful court participants, which was necessary to assess and improve the quality of the court’s services (B. Taylor, personal communication, October 14, 2020).

Outcomes monitoring at the Red Hook Community Justice Center was not without its challenges, however. Because most people who come before the court are charged with less serious crimes, their treatment mandates are relatively short. The short amount of time the Red Hook staff and service providers have to work with these participants means that outcomes related to individual progress are not likely to show a full picture of the court’s impact. The Red Hook Community Justice Center addressed this by also measuring outcomes related to the court’s impact on the community. What was the effect on social cohesion and stability when someone’s brother, father, or son was allowed to remain in the community instead of being incarcerated? (B. Taylor, personal communication, October 5, 2020).

Another challenge faced by community courts broadly is that traditional outcomes monitoring systems are not well-equipped to acknowledge the reality that everything is connected. Where does one draw the line between service providers and justice providers? If a restorative justice process facilitated under the supervision of the court fails to reconcile the parties in conflict but has a positive impact on the lives of the support people who participate, should it be considered a success or failure? 

A former Red Hook staff member involved in the court’s peacemaking initiative shared a story of a young, devout woman with a new boyfriend who mistreated her and who her children strongly disliked. When she tried to throw him out, the boyfriend would use her Christian values against her and convince her to let him stay. Eventually, he punched someone and was arrested on assault charges. His case was referred to a restorative justice circle for resolution. In the circle, the boyfriend was very aggressive and as a result, his case was sent back to court. The woman and her children asked if they could continue meeting in circle without him because they found it helpful (Ibid).

After a series of circle sessions together, the woman came to realise that her abusive boyfriend was using drugs and found the courage to kick him out. In his absence, the woman and her children were able to reconcile and reunite. The woman returned to school and her oldest son found a job. The criminal case that started the process was ultimately unresolved, but from a more holistic and common sense perspective the impact of the circles on the family was positive (Ibid). How should success be measured in this case? This is a challenge that community courts attempting to measure and monitor people-centred justice regularly face.

Evidence-Based Solutions

How and to what extent have problem-solving courts introduced interventions that are evidence-based and consistently deliver the justice outcomes that people in the target population look for?

Problem-solving courts have introduced a number of interventions that have proven to deliver people-centred outcomes for the communities they serve. Although different interventions work for different populations, direct engagement with participants and the delivery of individualised treatments are two key elements of the problem-solving orientation that all problem-solving courts share (Porter, Rempel and Mansky 2010, p. 29-30). 

As described in the previous section, direct engagement means that the judge speaks to participants directly and becomes actively engaged in producing positive change in their lives (Ibid. p. 30-31). This effort to ensure that participants feel heard, respected and experience the process as fair is supported by research on procedural justice. 

Individualised treatment means that the interventions delivered are tailored to the specific problems of each participant. This requires that the court offer “a continuum of treatment modalities and services to respond to the variety and degrees of need that participants present.” This service plan must be revisited by the court on a regular basis and adjusted depending on the participant’s reported progress (Ibid. p. 29-30).

Despite this shared approach to justice delivery, different problem-solving courts have identified different types of treatments and ways of monitoring whether they work that are unique to the populations they serve.

Community courts like the Red Hook Community Justice Center, for example, generally work with the residents in their neighbourhood to find out what is important to them rather than imposing a predetermined set of solutions. 

The Neighbourhood Justice Centre in Melbourne did this through a unique problem-solving process that took place outside of the courtroom and which participants could opt into voluntarily. In a confidential, facilitated discussion based on restorative and therapeutic justice principles, participants were given an opportunity to share their perspective on the problems they were facing and empowered to become collaborators in their own rehabilitation. Important takeaways from this process would be reported back to the court’s magistrate so he could help them move forward – for example by changing their methadone (1) dose or changing the number of treatments they received per week. The collaborative nature of the sessions helped ensure that the treatment plans mandated by the court were realistic for participants. Though the content of these sessions was unpredictable and varied, the co-design process remained constant (J. Jordens, personal communication, October 19, 2020; Halsey and Vel-Palumbo 2018).

With that said, certain interventions have proven to consistently improve outcomes for communities, victims, and individuals with justice system involvement when applied to low-level cases. These include: using (validated) screening and assessment tools (2); monitoring and enforcing court orders (3); using rewards and sanctions; promoting information technology (4); enhancing procedural justice (5); expanding sentencing options (to include community service and shorter interventions that incorporate individualised treatment); and engaging the community (6).

In 2009, the National Institute of Justice funded a comprehensive independent evaluation of the Red Hook Community Justice Center to assess whether it was achieving its goals to reduce crime and improve quality of life in the Red Hook neighbourhood through these interventions (Lee et al. 2013, p. 2.). The evaluation found that:

The Justice Center [had] been implemented largely in accordance with its program theory and project plan. The Justice Center secured the resources and staff needed to support its reliance on alternative sanctions, including an in-house clinic and arrangements for drug and other treatment services to be provided by local treatment providers...The Justice Center’s multi-jurisdictional nature, as well as many of its youth and community programs, evolved in direct response to concerns articulated in focus groups during the planning process, reflecting a stated intention to learn of and implement community priorities (Ibid. p. 4).

Using a variety of qualitative and quantitative research methods, the evaluation also concluded that Red Hook had successfully: changed sentencing practices in a way that minimised incarceration and motivated compliance; provided flexible and individualised drug treatment; sustainably reduced rates of misdemeanour recidivism among young people and adults; and reduced arrests in the community. 

In spite of the robust evidence supporting their approach, many community courts experience resistance to their efforts to help participants address underlying issues of substance use and mental disorders through treatment. As Brett Taylor, a Senior Advisor for Problem-Solving Justice and former defence attorney at the Red Hook explains:

Some critics of community courts say that [this] is not the job of courts and should be handled by other entities. In a perfect world, I would agree. However, in the reality of the world today, people with social service needs continue to end up in the courts. Court systems across the country have realised that if defendants with social service needs are not given treatment options, those defendants will be stuck in the revolving door of justice and continue to clog the court system....Although it may not comport with the vision of success that many defence attorneys had upon entering this work, I can tell you that nothing beats seeing a sober, healthy person approach you on the street and hearing, ‘Thank you for helping me get my life back on track’ (Taylor 2016, p. 25).

In contrast to the broad and community-based approach to treatment taken by community courts, drug courts focus specifically on providing drug treatment. In the words of Judge Peggy Hora, drug treatment is “painful and difficult.” Because of this, drug courts start with external changes as their goal, but ultimately aim for internal change. This means appropriately matching participants with evidence-based treatment and using neutral language that assists, supports, and encourages participants along the way. Because relapse is such a common feature of recovery, drug courts focus on keeping people in appropriate treatment as long as necessary for them to eventually graduate from the program (P. Hora, personal communication, October 16, 2020).

Drug court treatments have become increasingly evidence-based since the 1990s due to a growing movement toward performance measurement in the non-profit sector:

The emergence of drug courts as a reform of courts’ traditional practice of treating drug-addicted offenders in a strictly criminal fashion coincided with renewed interest in performance measurement for public organisations. The argument for measuring the performance of drug courts is compelling because they are a recent reform that must compete with existing priorities of the judicial system for a limited amount of resources. This makes it incumbent upon drug courts to demonstrate that the limited resources provided to them are used efficiently and that this expenditure of resources produces the desired outcomes in participants (Rubio et al. 2008, p. 1).

This movement was further strengthened by the development of a cutting edge performance measurement methodology known as the “balanced scorecard.” Created for the business sector, the balanced scorecard method aims to go beyond traditional measures of success and get a more balanced picture of performance by incorporating multiple perspectives. This method was adapted to create CourTools, a set of ten performance measures designed to evaluate a small set of key functions of trial courts (Ibid. p. 2). 

Because “the nature of addiction and the realities of substance use treatment require extended times to disposition for drug court participants,” many of the performance measures developed for conventional trial courts (such as reduced time to disposition) are not directly applicable to drug courts. However, the increased application of performance measurement to courts and the creation of CourTools in particular helped make way for the development of the first set of nationally recommended performance measures for Adult Drug Courts in 2004 (Ibid. p. 4).

Developed by a leading group of scholars and researchers brought together by the National Drug Court Institute (NDCI) and published for the first time in 2006, these included four key measures of drug court performance: retention; sobriety, in-program recidivism; and units of service (Ibid. p. 5).

Retention refers to the amount of time drug court participants remain in treatment. “Longer retention not only indicates success in treatment but also predicts future success in the form of lower post treatment drug use and re-offending”  (Ibid. p. 5). Sobriety – both during and after treatment –  is another important goal of drug courts. “As the participant proceeds through the program, a trend of decreasing frequency of failed [drug] tests should occur. Research has shown that increasing amounts of time between relapses is associated with continued reductions in [drug] use” (Rubio et al. 2008, p. 5). In-program recidivism is the rate at which drug court participants are re-arrested during the course of their participation. This is expected to be lowered through a combination of “judicial supervision, treatment, and rewards and sanctions” unique to drug courts (Ibid. p.5; US Government and Accountability Office, 2005). Finally, units of service refers to the dosages in which drug court treatment services – including, but not limited to substance use treatment – are delivered. These are usually measured in terms of days or sessions of service provided (Rubio et al. 2008, p. 5).

Since their development, these four measures of drug court performance have been actively promoted by leading technical assistance providers like the Center for Court Innovation (CCI) and the National Center for State Courts (NCSC) (Ibid. p. 6). They have since been adopted and adapted by a number of states across the US. The NCSC facilitates this process, but decisions about what specifically to measure are made by the advisory committee convened by the state-level agency responsible for drug courts (Ibid). Additional performance measures used by some states relate to, for example: accountability, social functioning, processing, interaction with other agencies, compliance with quality standards, and  juvenile drug court measures, family drug court measures, and domestic violence drug court measures (Ibid. p. 10).

In 2007, the NCSC surveyed statewide drug court coordinators from across the country about their use of state-level performance measurement systems (SPMS). Out of 45 states that completed the surveys, 58% were using a SPMS in their drug courts. Most of these were adult drug courts (Ibid. p. 14). Although the frequency with which these states reported performance measurement data varied from quarterly to annually, the majority did provide data to a central agency (Ibid. p. 15). 

The development and widespread use of SPMS have helped drug courts deliver treatments that are increasingly evidence-based in the sense of consistently delivering the outcomes that their participants need. However, the NCSC survey found that the state-level performance measures used were not entirely balanced in that they typically focused more on the effectiveness of drug courts than their efficiency, productivity, or procedural satisfaction (Ibid. p. 20). The NCSC therefore recommended that a more balanced, national and uniform set of drug court performance measures be developed to measure performance more holistically and facilitate comparisons of performance across states (Ibid. p. 18).

How and to what extent have problem-solving courts used outcome-based monitoring (discussed in the previous section) to continuously improve these interventions and replace interventions that have proven ineffective?

Because of their problem-solving orientation and focus on outcomes, problem-solving courts are by their nature adaptive and capable of developing new treatment modalities to meet different kinds of needs. As Brett Taylor, Senior Advisor for Problem-Solving at the Center for Court Innovation put it, “the problem-solving court environment creates a space in which there is more room for creativity. If you were to redesign the justice system now, there wouldn’t be only courts you could go to, there would be different justice mechanisms and modalities available to treat different levels of issues. Perhaps that is why new modalities develop within problem-solving courts” (B. Taylor, personal communication, October 19, 2020).

A clear example of this creative and outcomes-based approach to improvement was the way the problem-solving dialogue process developed at the Neighbourhood Justice Center (NJC) was adapted over time to meet changing demands in the community. As Jay Jordens, a Neighbourhood Justice Office at the NJC who introduced the process explains: “different problems would arise that would demand a re-design of the court’s approach” (J. Jordens, personal communication, October 19, 2020).

For example, the NJC began to notice that people responsible for family violence were participating in problem-solving dialogues without sharing this part of their history. In response, the NJC developed a tailored problem-solving process for people who were respondents to a family violence order in which this part of their past would be addressed from the start. The NJC also began facilitating support meetings for victims of family violence, including for example parents who were being mistreated by their children. The process was designed to solicit feedback about the new approach after victims had tried it. Eventually, it earned the support of the police in the community because it consistently delivered outcomes for a unique population (Ibid).

A second adaptation of the problem-solving process at the NJC was made when court staff noticed that many young people were opting out. Many of the court-involved young people in the Collingwood community were refugees from South Sudan who were experiencing the effects of intergenerational trauma. Realising that the process as it was originally imagined was too interrogative for this population, the NJC began holding circles with the young person, their mother, and one or two support workers. A facilitator would begin by asking humanising questions of everyone in the circle. Although the young person would often pass when it was their turn to speak, participating in the circle gave them an opportunity to listen, relax, and improve their relationships with the adults sitting in the circle with them. These problem-solving circles were designed to prioritise safety concerns and would often result in an agreement among the participants to get external support and/or attend family therapy.

Jay Jordens notes that such adaptations were possible in spite of, not because of, an operational framework of specialisation within the court that made collaboration a choice rather than an expectation among Centre staff. “We aren’t there yet where these processes are intuitive,” he explained, “we still need to actively facilitate them” (Ibid).

Because of their systematic approach to outcomes monitoring and performance measurement, drug courts have made a number of improvements to the treatment they provide as well. First and foremost, they have learned to avoid net widening: “the process of administrative or practical changes that result in a greater number of individuals being controlled by the criminal justice system” (Leone n.d.).

Specifically, drug courts have learned that putting the wrong people in the wrong places results in bad outcomes. An example of this is cherry picking the easiest cases for drug treatment: a common practice among drug courts in the early years of their development that later proved to be harmful. Evidence has shown that drug courts are most effective when they focus on treating high-risk, high-needs participants who are most likely to reoffend (P. Hora, personal communication, October 16, 2020). Cherry picking low-risk cases in order to inflate measures of success means putting them in more intensive treatment than they need and failing to appropriately match treatments with risk. Over time, this entraps people in the criminal justice system unnecessarily and reduces drug courts’ potential to meaningfully reduce crime (B. Taylor, personal communication, October 19, 2020).

Cherry picking low-risk cases for drug treatment has also resulted in racially biased outcomes. Because of the ways racial bias is embedded in the American criminal justice system, young white defendants have historically been more likely to be assessed as low-risk and eligible for specialised treatment than participants of colour. Participants of colour who were selected for drug court programming also tended to flunk out or leave voluntarily at higher rates than white participants.

In response to these trends, drug courts developed a toolkit on equity and inclusivity to examine the data and understand why this was happening. They introduced HEAT (Habilitation Empowerment Accountability Therapy), a new drug treatment modality geared towards young black men which was recently evaluated with very positive results. They have also worked harder generally to ensure that treatments are culturally appropriate for the different populations they serve.

Drug courts have also become more sophisticated at treating different kinds of drug addiction. The Matrix Model, for example, was developed to engage a particularly difficult population – stimulant (methamphetamine and cocaine) users – in treatment. Previously considered “untreatable” by many drug courts, stimulant users treated using the Matrix Model have shown statistically significant reductions in drug and alcohol use, risky sexual behaviors associated with HIV transmission, and improved psychological well-being in a number of studies (P. Hora, personal communication, October 16, 2020; National Institute of Drug Abuse 2020).

Drug court judges who once took a “blaming and shaming” approach have shifted towards a more people-centred one, as evidenced by changes in the language used to describe participants. In response to research in the medical sector demonstrating that people who are described as addicts receive lower quality care and fewer prescriptions, drug courts have increasingly replaced the term “addiction” with “substance use disorder” (P. Hora, personal communication, October 16, 2020).

In line with this shift, attitudes towards medically assisted drug treatment have also changed dramatically over the years. Whereas most drug courts previously did not allow the use of methadone in treatment, the field has now clearly adopted medically assisted treatment after finding that it was consistent with improved graduation rates, among other outcomes. Though not universally accepted, it is now considered a best practice supported by decades of research (Ibid).

On a more systematic level, a 2007 analysis of performance measurement data collected by the state of Wyoming provides an example of how drug courts have started to use this data to improve the quality of their treatments and overall impact. Based on results related to the key measures of drug court performance introduced in the previous section – retention, sobriety, in-program recidivism and units of service – the NCSC made a number of programmatic recommendations for drug courts across the state. First, they suggested that drug courts aim to support participants’ education and employment-related needs, as both attainment of a diploma and employment at admission to treatment were associated with increased graduation rates. They also recommended that additional resources be made available for young participants of colour, who were found to have higher rates of positive drug tests and recidivism than young white participants (Rubio et al. 2008, p. 17).

Innovations + Delivery Models

How and to what extent have problem-solving courts scaled their people-centered service delivery model to deliver justice outcomes for a larger population?

Many problem-solving courts across the US continue to start in the way the first problem-solving courts did: with judges deciding to do things differently. With that said, the proliferation of problem-solving courts across the country can be traced to three primary factors: science and research; technical assistance; and changes in legal education.

Research has helped bring problem-solving courts to scale by showing that the problem-solving approach to justice, if properly implemented, can be effective. Research on procedural justice and advancements in understanding of the science of addiction have been particularly important in this respect. Increased awareness of major studies in these areas have helped the field shift towards evidence-based working and helped legal professionals learn from past mistakes. More and more judges realise that relapse is part of recovery, and that mandated treatment within a drug court structure delivers positive outcomes for participants (B. Taylor, personal communication, October 19, 2020).

Once a number of problem-solving courts had been established around the country, technical assistance providers emerged to help them take a data-driven approach. This means working with communities to look at the numbers and identify the biggest crime problems they are struggling with and introducing a problem-solving court that is responsive to those issues. It also means using screening and needs assessment tools to make informed sentencing decisions and match participants to appropriate treatments. Technical assistance has helped problem-solving courts increase their impact and effectiveness and over time deliver outcomes for larger populations (Ibid).

As problem-solving courts like the Red Hook Community Justice Center have become better known, law students and young legal professionals have become more aware of and enthusiastic about problem-solving justice as an alternative to adversarial ways of working (Ibid). This represents a significant shift from the early days of problem-solving courts, when judges and lawyers alike were reluctant to embrace non-conventional conceptions of their roles as legal professionals. Prosecutors called problem-solving courts “hug-a-thug” programs. Defence attorneys resisted the idea of a court being a cure-all for their clients. Judges insisted that they “weren’t social workers” and shouldn’t be doing this kind of work (P. Hora, personal communication, October 16, 2020). Service providers were concerned too: they feared that involving the justice system in treatment would ruin their client relationships.

Over time, judges have come to see that their roles could expand without violating something sacrosanct about being a judge. In 2000, the Conference of Chief Justices and Conference of State Court Administrators adopted a resolution supporting the use of therapeutic justice principles. Since then, experience presiding over a drug court has come to be seen as a positive in judicial elections (Ibid).

Despite early concerns that problem-solving courts were “soft on crime,” prosecutors and defense attorneys have largely come on board as well. Research has demonstrated that when problem-solving courts acknowledge their gaps in knowledge and defer to service providers for clinical expertise, they can be successful in supporting treatment. As a result of advances in research, the emergence of problem-solving technical assistance, and important cultural shifts, drug and mental health courts are now widely recognised as appropriate and welcome additions to the field (Ibid). This acceptance has facilitated their spread nationally and as far as Australia and New Zealand.

Court numbers are not the only relevant measure for evaluating the extent to which problem-solving courts have successfully scaled, however. In addition to horizontal scaling of courts across the country, vertical integration of problem-solving principles and practices within particular jurisdictions is an important indicator of problem-solving courts’ spread and influence (J. Lang, personal communication, October 28, 2020).

As explained in the introduction, the principles and practices of problem-solving justice can be and are increasingly applied by traditional justice actors and in existing, non-specialised courts. Police departments across the country are learning that they can divert defendants to treatment from the get-go, without necessarily waiting for a case to be processed through the courts (Ibid). A prominent example of police-led diversion is LEAD (Law Enforcement Assisted Diversion) in Seattle, “a collaborative community safety effort that offers law enforcement a credible alternative to booking people into jail for criminal activity that stems from unmet behavioural needs or poverty” (Law Enforcement Assisted Diversion, n.d.). The Seattle LEAD model was externally evaluated and found to deliver a range of positive outcomes for individuals with justice system involvement and the community (LEAD National Support Bureau n.d.-a). The model has been replicated successfully and is now operating in over thirty-nine counties in the US (LEAD National Support Bureau n.d.-b).

Cases that do reach court are also increasingly diverted outside of it. Prosecutors and judges who are not operating within a problem-solving court can nevertheless apply problem-solving principles by linking defendants to services and making use of alternative sentences in lieu of jail time. This “problem-solving orientation” has allowed problem-solving justice to be applied in more instances and settings without necessarily setting up new problem-solving courts. One indication that problem-solving courts have already scaled “horizontally” in the US – and that this “vertical” scaling is the latest trend – is the fact that the US government’s drug courts funding solicitation in 2020 no longer includes a category for the creation of a new drug court (J. Lang, personal communication, October 28, 2020).

Evidence of this trend towards vertical scaling can be found as far away as Australia. As a specific alternative to horizontal replication, the Neighbourhood Justice Centre (NJC) has developed resources to support judges at the Melbourne Magistrates Court to adopt a problem-solving approach to their work. Over time, this court has become a “laboratory of experimentation” for problem-solving principles and practices as well as other complementary technologies (i.e. therapeutic or procedural justice approaches)  that need to be tested before broader roll-out. In a similar vein, New York City’s courts have carried the innovative principles and practices of community courts into centralised courthouses in Brooklyn and the Bronx rather than creating more Red Hooks (Ibid).

How and to what extent have problem-solving courts funded their service delivery model in a sustainable way?

Drug courts have been successful in obtaining large and sustainable streams of federal funding due to the strong research partnerships they developed from the start. Early data collection and evaluation persuaded funders that the problem-solving approach would deliver positive outcomes and save money by reducing incarceration costs. The fact that Florida Attorney General  Janet Reno – who set up the nation’s first drug court in 1989 – worked with Assistant Public Defender Hugh Rodham (7) in Miami Dade County also helped make drug courts a success and capture the attention of the federal government early on.

Importantly, federal funding for drug courts was often conditional upon their participation in rigorous evaluations. This demonstrated the effectiveness of the drug court model in a way that may not have been possible had the drug courts had to fund the research themselves, and justified their continued funding (P. Hora, personal communication, October 16, 2020). In recent years, states and counties have become a significant source of funding for drug courts as well  (J. Lang, personal communication, October 28, 2020).

Although the federal government has also helped fund other types of problem-solving courts, drug courts are by far the most sustainably funded. Only recently has the government made it possible for community courts to apply for direct funding, or indirect funding as subgrantees of the Center for Court Innovation. The long-term funding for many community courts is provided by local municipalities (Ibid). Funding community courts is a unique challenge because in addition to standard line items like project director and case worker salaries, they must find a way to cover less conventional expenses support for community volunteers and circle participants (often in the form of food, which the government is not willing to fund) (B. Taylor, personal communication, October 19, 2020).

Direct federal funding for other kinds of problem-solving courts is very limited. What funding has been made available to them has gone primarily towards research and the establishment of state-level coordinators and problem-solving court infrastructure. This has helped to increase awareness of the problem-solving principles and practices at the state level and encouraged their application in different areas (P. Hora, personal communication, October 16, 2020).

Private foundations have supported various aspects of problem-solving justice initiatives in certain parts of the country, but have not yet committed to doing so in a sustained way (J. Lang, personal communication, October 28, 2020).

To what extent have problem-solving courts leveraged the following sustainable financing strategies: public-private partnerships and smart (user) contributions?

Community courts in New York – including the Red Hook Community Justice Center and the Midtown Community Court – have benefitted from public-private partnerships to the extent that their planning and operations have been led by the Center for Court Innovation, a public-private partnership between the New York court system and an NGO. Over the years, these courts have also partnered with local “business improvement districts” to supervise community service mandates and offer employment opportunities to program graduates (Ibid).

Some treatment courts do also charge a nominal participant fee, which can range from $5-$20 per week (Wallace 2019). These user contributions can be used for grant matching, among other things. Charging people for their participation in problem-solving programming is generally not regarded as good practice, however (J. Lang, personal communication, October 28, 2020).

More broadly, problem-solving courts and community courts in particular can be said to be financially sustainable in that they often save taxpayer money (Wallace 2019). Although it takes time to realise the benefits of the upfront costs of creating and running a drug court for example, research has demonstrated that once established, the associated cost savings range from more than $4,000-$12,000 per participant (Office of National Drug Court Policy 2011). The Red Hook Community Justice Center alone was estimated to have saved local taxpayers $15 million per year (primarily) in victimisation costs that were avoided as a result of reduced recidivism (Halsey and de Vel-Palumbo 2018). The cost savings associated with problem-solving courts have helped them to continue to be competitive applicants for federal, state and local, and sometimes private grant funding over the years and in spite of changing political winds (Wallace 2019).

Enabling environment

How and to what extent have regulatory and financial systems created/enabled by the government supported problem-solving courts and made it possible for this service/activity to scale?

Most if not all states in the US have allowed drug courts to become part of state legislation, which makes possible their continued operation (P. Hora, personal communication, October 16, 2020).

How and to what extent have the outcomes-based, people-centered services delivered by problem-solving courts been allowed to become the default procedure?

Problem-solving courts have not been allowed to become the default procedure in that adversarial courts and procedures remain the standard way of responding to crime in the US. In the words of Judge Hora, “There is no question that the number of people served is growing, but this remains only a drop in the bucket. For every person served there are 6-7 who aren’t” (Ibid). However, the expanding presence of problem-solving courts has helped the justice sector shift away from the excessively punitive state sentencing laws and tough-on-crime rhetoric of the late 1980s towards a more restorative and evidence-based way of working (B. Taylor, personal communication, October 5, 2020).

Problem-solving courts have enabled cultural change by demonstrating to lawyers and judges that defendants do better when they are able to access treatment, while at the same time allowing these traditional legal players to act as intermediaries and retain a gatekeeping role. As discussed in previous sections, police, prosecutors, and judges alike have grown increasingly comfortable with diverting cases from the adversarial track to community-based treatment (Ibid).

It is a paradox that the US has developed and spread the problem-solving courts model as the country with the highest incarceration rates in the world. Former Senior Advisor of Training and Technical Assistance at the Center for Court Innovation, Julius Lang, speculates that this punitive backdrop is what has allowed alternatives to incarceration to flourish in the US and become so highly developed. At the same time, countries with lower baseline penalties that have set up problem-solving courts, such as Canada and Australia, have developed creative means of engaging defendants who need treatment since there is less of a threat of incarceration (J. Lang, personal communication, October 28, 2020).

How and to what extent have problem-solving courts stimulated (or benefitted from) investment into justice research and development?

Problem-solving courts have both stimulated and benefited from investment into justice research and development. As discussed in the previous sections, the success of problem-solving courts in the US can be attributed in large part to their strong research partnerships. 

From the start, “problem-solving courts always took responsibility for their own research and their own outcomes” (Ibid). Problem-solving justice initiatives run by the Center for Court Innovation, for example, always worked directly with researchers. This produced a huge amount of evaluation literature, which was important for securing the buy-in and funding necessary to continue operating (B. Taylor, personal communication, October 14, 2020). 

The fact that federal funding has incentivised high-quality evaluations has also gone a long way to build a foundation of evidence demonstrating drug courts’ effectiveness (P. Hora, personal communication, October 16, 2020).

Leadership + Pathways

How and to what extent have justice sector leaders’ skills and collaborations enabled/hindered problem-solving courts to increase access to justice by delivering the outcomes people need at scale?

Strong leadership has been essential to problem-solving courts’ ability to deliver the treatment outcomes people need at scale. Without the leadership of visionary judges and other leaders aiming to do things differently, they would never have come into existence in the first place. 

Because of the tendency to maintain the status quo, individual problem-solving courts also rarely get off the ground without a strong champion. The reason for this can be traced to problem-solving principles and practices themselves: the goal is not to force people to change, but to make them change because they want to. In the same way, effective leaders can persuade system actors that problem-solving justice is the way to achieve common goals (B. Taylor, personal communication, October 14, 2020).

Community courts in particular require strong leadership. This can sometimes pose problems for the courts’ long-term stability. For example, a community court in North Liverpool was championed by prominent national politicians. Their leadership was important for the court’s establishment and initial funding, but changes in national leadership and the lack of local support were major factors in the court’s ultimate closure (J. Lang, personal communication, October 28, 2020).

As mentioned above, community courts may struggle when their early champions move on. To avoid this and prepare for the eventual departure of the personalities who are driving change, it is important to put the courts’ internal ways of working into writing. As previously discussed, it is also necessary to obtain evidence that the court’s approach works, as this is a more important driver of funding than good leadership in the long-run (B. Taylor, personal communication, October 5, 2020).

Mid-level leadership within problem-solving courts also matters. Since staff are often employed and supervised by various partner agencies – rather than the director of the project as a whole – it is particularly important that they be selected with care, trained in the project’s mission, policies and practices, and incentivised to work as part of a single team (J. Jordens, personal communication, October 19, 2020).

How and to what extent have problem-solving courts contributed to/benefited from new high-level strategies or pathways towards people-centred justice in the US?

High-level strategies at the state level and in the form of technical assistance have benefitted problem-solving courts significantly by facilitating their replication. This is particularly true of drug courts, for which state-wide coordination mechanisms were set up at an early stage.

Recognising that substance use disorder was a major problem, and persuaded by the same research as federal legislators, state officials began to set up mechanisms that would allow them to receive federal drug court funding. This also allowed them to strategise about which counties would most benefit from drug courts (or other problem-solving courts), and which standards to impose. 

Together, state-wide coordination mechanisms created an infrastructure for the improvement and replication of drug courts nationwide, and made it easier to apply problem-solving practices and principles in new settings. Whereas trainings on brain science and what’s working in treatment used to be reserved for drug court judges, there are now few states that do not include them in judicial training for all new judges. The same can be said for trainings for prosecutors, defence attorneys, and service providers (P. Hora, personal communication, October 16, 2020).

The emergence of technical assistance providers specialising in problem-solving justice such as the Center for Court Innovation, Justice System Partners, the National Center for State Courts, and the Justice Management Institute have also helped problem-solving courts to coordinate and replicate in strategic ways. By developing listservs and organising conferences, these organisations have enabled people in various problem-solving courts to support each other across state and international lines. Over time, these efforts have created shared principles and legitimacy around the movement for problem-solving justice (J. Lang, personal communication, October 28, 2020).

To what extent have problem-solving courts contributed to/played a role in a broader paradigm shift towards people-centered justice?

As mentioned in the introduction, a fifth key feature of the problem-solving orientation is system change. By educating justice system stakeholders about the nature of behavioural problems that often underlie crime and aiming to reach the maximum number of cases within a given jurisdiction, problem-solving courts seek to make broader impact within the justice system and community (Porter, Rempel and Mansky 2010, p. 32-33).

Since the first drug court was set up in 1989, legal professionals have become increasingly aware that many people with social problems end up in the justice system: a system that was never intended to address those problems. Problem-solving courts have contributed to a broader paradigm shift towards people-centred justice to the extent that they have helped these professionals:

By taking a collaborative approach to decision-making, delivering individualised justice for each participant while at the same time holding them accountable, educating staff, engaging the broader community, and working to produce better outcomes for people, problem-solving courts have demonstrated what people-centred criminal justice can look like in the US and around the world.

(1) Methadone is a synthetic opioid used to treat opioid dependence. Taking a daily dose of methadone in the form of a liquid or pill helps to reduce the cravings and withdrawal symptoms of opioid dependent individuals.

(2) “A screening tool is a set of questions designed to evaluate an offender’s risks and needs fairly quickly…An assessment tool is a more thorough set of questions administered before an offender is matched to a particular course of treatment or service.” Taylor 2016, p. 7.

(3) “The main monitoring tool community courts use is compliance hearings, in which participants are periodically required to return to court to provide updates on their compliance.” Taylor, 2016, p. 9.

(4) “Community courts have promoted the use of technology to improve decision-making. Technology planners created a special information system for the Midtown Community Court to make it easy for the judge and court staff to track defendants…Information that’s reliable, relevant, and up-to-date is essential for judges to make the wisest decisions they can.” Taylor 2016, p. 12-13.

(5) In community courts, “judges often speak directly to the offender, asking questions, offering advice, issuing reprimands, and doling out encouragement. This reflects an approach known as procedural justice…Its key components, according to Yale Professor Tom Tyler, are voice, respect, trust/neutrality, and understanding.” Taylor 2016, p. 15.

(6) “Community courts emphasize working collaboratively with the community, arguing that the justice system is stronger, fairer, and more effective when the community is invested in what happens inside the courthouse.” Taylor 2016, p. 22.

(7) Hugh Rodham was the brother of Hillary Clinton, who would become the First Lady a few years later.

Amanda Cissner and Michael Rempel. (2005).  The State of Drug Court Research: Moving Beyond ‘Do They Work?’, Center for Court Innovation.

Brett Taylor. (2016). Lessons from Community Courts: Strategies on Criminal Justice Reform from a Defense Attorney. Center for Court Innovation, p. 3.

Cheryl Wright, (n.d.). Tackling Problem-Solving Issues Across the Country. National Center for State Courts (NCSC).

Cynthia Lee, Fred Cheesman, David Rottman, Rachael Swaner, Suvi Lambson, Michael Rempel and Ric Curtis. (2013). A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center. National Center for State Courts, Center for Court Innovation, p.1.

David Wallace. (2019). Treatment Court: Is Yours Sustainable? (Part Four). Justice Speakers Institute.

David Wallace. (2019). Treatment Court: Is Yours Sustainable? (Part One). Justice Speakers Institute.  

Dawn Marie Rubio, Fred Cheesman and William Federspiel. (2008). Performance Measurement of Drug Courts: The State of the Art. National Center for State Courts, Volume 6, p. 1.

George Mair and Matthew Millings. (2011). Doing Justice Locally: The North Liverpool Community Justice Centre. Centre for Crime and Justice Studies.

Halsey and de Vel-Palumbo. (2018). Courts As Empathetic Spaces: Reflections on the Melbourne Neighbourhood Justice Centre. Griffith Law Review, 27(4).

Interview with Brett Taylor, Senior Advisor for Problem-Solving Justice, Center for Court Innovation, October 5, 2020.

Interview with Brett Taylor, Senior Advisor for Problem-Solving Justice, Center for Court Innovation, October 14, 2020.

Interview with Brett Taylor, Senior Advisor for Problem-Solving Justice, Center for Court Innovation, October 16, 2020.

Interview with Brett Taylor, Senior Advisor for Problem-Solving Justice, Center for Court Innovation, October 19, 2020.

Interview with Jay Jordens, Education Program Manager – Therapeutic Justice, Judicial College of Victoria, October 19, 2020.

Interview with Judge Peggy Hora, President, Justice Speakers Institute, October 16, 2020.

Interview with Julius Lang, Senior Advisor, Training and Technical Assistance, Center for Court Innovation, October 28, 2020.

Law Enforcement Assisted Diversion (LEAD), King County.

LEAD National Support Bureau, (n.d.). Evaluations

LEAD National Support Bureau. (n.d.). LEAD: Advancing Criminal Justice Reform in 2020.

Mark Halsey and Melissa de Vel-Palumbo. (2018). Courts As Empathetic Spaces: Reflections on the Melbourne Neighbourhood Justice Centre. Griffith Law Review 27 (4). 

Matthew Leone, Net widening, Encyclopaedia of Crime and Punishment, SAGE Reference.

National Institute of Drug Abuse (2020). The Matrix Model (Stimulants), Principles of Drug Addiction Treatment: A Research-Based Guide

Office of National Drug Court Policy. (2011). Drug Courts: A Smart Approach to Criminal Justice.

Rachel Porter, Michael Rempel and Adam Mansky. (2010). What Makes a Court Problem-Solving? Universal Performance Indicators for Problem-Solving Justice. Center for Court Innovation, p. 1

Red Hook Justice News. (2016).  Bridging the Gap: Youth, Community and Police

Sarah Matusek. (2017). Justice Center celebrates Bridging the Gap birthday. The Red Hook Star Revue. 

Sarah Murray and Harry Blagg. (2018). Reconceptualising Community Justice Centre Evaluations – Lessons from the North Liverpool Experience. Griffith Law Review 27 (2).

Suzanne Strong and Tracey Kyckelhahn. (2016).  Census of Problem-Solving Courts, 2012. Bureau of Justice Statistics.

US Government and Accountability Office, 2005.

8. Strategy 5: strengthening the movement

8

8. Strategy 5:
strengthening the movement

Trend Report 2021 – Delivering Justice / 8. Strategy 5: strengthening the movement

The task force must ensure momentum is sustained. When considering this fifth strategic intervention, we can assume that the task force has been assembled and progress has been made towards evidence-based working. A sizable minority of justice practitioners has committed to this. Learning communities regularly discuss what works. Together with the disputants they assist, these justice practitioners monitor progress on outcomes for land governance disputes or personal injury cases. Resolution rates are improving. A project plan for scaling and enhancing at least one game-changing justice service is being implemented. The service reaches new groups of users every week. Task force members have improved the enabling environment, so the gamechanger is well regulated and subsidies to serve the poorest have been secured. Future game-changing justice services can thrive in this environment.

A task force should anticipate this advanced stage. Maintaining momentum and building the movement for people-centred justice is key. The task force must now ensure the justice sector continues on the path towards higher resolution rates and more effective prevention. In this chapter, we revisit the impediments towards rigorous R&D and innovation in the justice sector discussed in chapter 2. These impediments explain HiiL’s conviction that relying on piecemeal reform is unrealistic and that a strong mission-oriented approach is needed to overcome them. Leaders in the justice system are likely to bring about the necessary change in collaboration with other relevant stakeholders. A broad movement is required, one that is supported by national planning agencies, the high prioritisation of justice by national and local governments, and international cooperation towards making legal systems more responsive.

Engage with the tools and networks of national planning

In order to achieve the mission, the task force needs support from outside the justice sector. Given the incentive structure, a task force will have to continuously assume that internal motivation to change, ownership and resources will have to be supplemented by players outside the justice sector. The transition from rule- and interpretation-based delivery of justice towards evidence-based and people-centred justice is unlikely to be achieved by justice practitioners in the current setting which will take time to change.

As described in Chapter 2, national planning agencies and coalition governments will continuously have to be involved in improved conflict resolution and people-centred justice reform, integrating it in their agendas. This is also the level where resources can be allocated and the mission-oriented approach can be pursued. Executing this mission requires flexible and adaptive portfolio management. The evidence-based approach would be applied to a variety of justice problems and some problem types will see more progress than others. It will be hard to predict which service delivery model will scale first and which will follow more slowly. During the implementation period, the task force must also safeguard its independence from everyday politics. This can be done if the task force focuses on R&D and innovation capabilities and incentives.

In order to achieve this, the task force will have to ensure that people-centred justice is integrated in the processes and language of long term national planning. Effective conflict resolution and prevention represents an enormous economic value, promotes social cohesion and increases government effectiveness. National planners, interdisciplinary government think tanks and coalition governments are natural partners for the task force. They can help the task force to overcome the impediments discussed in Chapter 2 (preference for the status quo, lack of ownership on the macro level, lack of resources, lack of incentives and trust between organisations).  The box below is an illustration of how justice leaders are currently experiencing these challenges.

A Justice Dialogue

To understand the enablers and impediments to rigorous R&D and people-centred innovation, we organised a Justice Dialogue with high-level participants from Nigeria, Kenya, Uganda, the Netherlands and the United States. All participants had significant expertise on issues at the forefront of applying people-centred justice approaches.

The dialogue focused on developing an integrated approach to people-centred justice  and the five main emerging investments of people-centred justice  programming: data, evidence-based practice, game-changing justice services, the enabling environment, and engagement and accountability.

Based on this premise, the dialogue created an interactive conversation on implementing and scaling the people-centred approach in the justice space. In particular, it focused on the following questions for panellists to share their thoughts and experiences:

The Dialogue aimed to elicit input from participants on the following main hypotheses – which serve as the enablers and impediments to people-centred justice:

Stakeholders shared their thoughts and experiences on these hypotheses in smaller breakout sessions. Key ideas from these sessions were then shared with the larger group. In addition to endorsing the enablers and impediments mentioned above, the following are the key takeaways from the Dialogue:

A more detailed account of the Justice Dialogue can be read here.

In order to build the bridge towards national planning and interdisciplinary government think tanks the task force needs to speak their language. Programme activities have to be captured in logframes with theories of change, outputs, outcomes and impacts. The impediments to working people-centred and evidence-based need to be translated into the analytical tools of economists. The box below is an example of how the different barriers to change look like if they are analysed as market failures, government failures and transformation failures. 

Market, system and transformation failures

Economists analyse the question of why demand for a good – fair solutions to justice problems and peaceful, inclusive relationships in our case – is not met by adequate supply. They do this through the lense of market, system and transformation failures (Frenken en Hekkert, 2017). In submitting a proposal to the Dutch National Growth fund we were asked to provide this analysis to show why people-centred justice was a wicked problem that needed a mission-oriented and coordinated approach. The following is a summary of the analysis provided by HiiL. We believe it is relevant for most countries because justice sectors tend to be organised in a similar way.

Market failures:

System failures:

Transformation failures:

Enablers of change

Inviting economists, policy makers and think tanks to work on these issues will help the task force to overcome the impediments, next to the strategies detailed in the preceding chapters. Stakeholder dialogues as described in Chapter 7 will be used to explore the mission, the strategies, and the impediments for innovation in the sector, as well as the opportunities connected to systemic change. When stakeholders meet, trust between institutions can grow. Partnerships can be formed. Stakeholders, and the sector more broadly, will experience the stages of rigorous R&D and innovation. 

Learning about familiar and new tasks in dispute resolution processes as described in Chapter 5 will demystify the consequences of the transition to “what works.” Justice practitioners are more likely to buy into innovation when they see examples of costs, fees and financial contributions, as reviewed in Chapter 6, so that they can understand how their organisations can become more sustainable and grow. Resources will be mobilised. Strategic and R&D capacities will be increased dramatically, much more in line with the 3% of GDP that is spent on R&D in the national economy, and perhaps upwards to the 10% that is allocated to the fastest growing sectors (see Chapter 7).

A task force will also feel more empowered to challenge justice institutions. Institutions that have better plans, obtain better results for people, and demonstrate greater dedication to evidence-based working can receive more support. 

Gradually, the task force will seek ways to transform itself into a more permanent institution or find a place in one of the existing institutions. In the preceding chapters we discussed a number of ways to improve incentives that a task force will consider and that need to be institutionalised. Monitoring outcomes and developing robust national indicators helps. Higher resolution rates and greater satisfaction with outcomes should be emphasised in order to bring more stakeholders on board. Individual justice practitioners deserve rewards for helping to resolve what often amounts to a crisis in an individual’s life or in a community in search of a sustainable and economically viable future. Improving relationships, resolving conflict and preventing crime should be recognised as valuable contributions to society. Financially, a game-changing justice service should benefit from the high-quality justice outcomes it delivers and its relatively broad reach. People who are satisfied with a fair outcome are more likely to express their appreciation. Similarly, a person dissatisfied with an unhelpful court decision should be able to express their needs. Confining feedback on justice outcomes solely to a formal appeal can be dehumanising. An alternative would be to see whether outcomes could be improved after an agreement is reached or a decision made. In dispute resolution language this is known as aftercare.  

Continuously researching and expressing user needs is required as well. The Legal Services Board in England and Wales, for example, regularly publishes valuable research on consumer needs. Online contracting platforms, information and advice services as well as claiming platforms can be stimulated to respond to user needs (HiiL n.d.-h; HiiL n.d.-i; HiiL n.d.-k).  A task force can facilitate research into evidence-based treatments and fidelity to these treatments in the service delivery model of the seven gamechangers. Following up on recommendations can be made part of the certification or approval process

Collecting more data and holding justice services accountable for the outcomes they deliver should be high on the long term agenda of the task force. If improvements stall, the task force can consider additional incentives. On a level playing field, a low-quality incumbent will invite more competition from newcomers. The task force can identify areas where such competition is needed in an annual report on access to justice. Resolution rates and effective prevention (leading to a lower number of justice problems) could become central to performance reviews of leading officials. 

Many econometric studies are now being published that investigate what incentives and organisational features influence judicial performance. Melcarne, A. and Ramellosee, G.B. (2015), Judicial independence, judges’ incentives and efficiency, Review of Law & Economics; Voigt, S. (2016), Determinants of judicial efficiency: a survey, European Journal of Law and Economics. 

Creating public engagement

People-centred justice builds on what people need, on the ways that people already create justice by themselves, and on the ways that justice practitioners help them. Can a task force assume that voters and politicians will be ready to support this cause?  

Once the initial case for people-centred justice has been made, a task force needs continuous political and public support. Leaders in the justice sector and justice practitioners will change their ways more readily if they feel they have public support. Engaging with the public can even be considered a key element of the task force’s strategy. 

The justice sector’s track record of public engagement is mixed. Recent research confirms criminal justice policies are strongly influenced by an often punitive public mood, which in turn is influenced by (often inaccurate) reporting on crime rates. Cases highlighted in the media tend to be outliers, not the average divorce, personal injury or theft in a shop. If the media exaggerates the bad intentions of perpetrators, their articles attract more views. Netflix series depict justice as an adversarial game, driven by a flow of accusations, claims and defensiveness, culminating in verdicts that provide relief. This is also how civil justice cases are often portrayed in the mainstream media. 

Research undertaken by the Canadian Forum of Civil Justice reveals how lawyers typically talk about access to justice (Moore and Farrow 2019). Too often, they equate it  with legal aid for the poor and criminal defence. This is not likely to appeal to middle-class voters. Better positioned messaging would focus on the justice problems that most people encounter during their lifetime and how tackling them can address the problem of governing communities in a non-polarised way. The public identifies more easily with groups who have been the victims of particular injustices. Media reports of this kind of systematic injustice often drive politicians to set up task forces. Funding for reparations is more widely accepted by the public in such cases, and politicians are happy to step in. 

Another positioning option – in line with  expert advice to focus on outcomes – is to zoom in on peaceful resolutions. In many countries around the world, fear of civil unrest and war is widespread. In the United States and Europe, many people are wary of polarisation. Peaceful resolution is too soft; law and order is too harsh. Proponents of people-centred justice must find a middle ground here. 

Successful task forces develop a continuous public engagement strategy. If the work of the task force remains behind closed doors, the movement for people-centred justice can easily stall. A website where the media and the general public can follow progress is advisable. Indicators may have a central place on such a website. An infographic explaining the idea of systematic programming can be used to visualise how people in a country make progress towards fairer resolutions and signal what the task force plans to do next.

Professional and trade organisations for people-centred justice

Many people are shaping people-centred justice. These individuals would benefit from being organised and brought together. Increasingly, frontline judges, lawyers and prosecutors view solving justice problems as their mission. Many of them now work closely with professionals from other disciplines. Fewer and fewer see applying the law to cases as their core role. Many apply mediation techniques and use problem-solving methods in their everyday work. For many experienced justice practitioners, law is becoming more of a tool and a support structure to achieve fair results than the command structure they learned to follow in the early years of their career . 

In addition, there is a growing number of courts, startups, law firms and companies offering innovative justice services. Together, they can be a powerful force that sustains the movement towards people-centred justice. First, this ecosystem needs to be organised. Together, they can demand a level playing field.

Currently, justice innovators and people-centred justice practitioners are less well organised than bar associations, organisations of judges, and formal justice sector institutions – all of which have ready access to ministries and politicians. Politicians and ministries need (and often want) a balanced representation of interests from the justice sector. A task force may be able to take on this challenge, or help to ensure that it is taken up.

Supporting the movement: a people-centred justice unit

A task force will be a crucial driver in maintaining the momentum of the initial phase of people-centred justice programming. Over time, the task force may consider setting up a permanent unit. Depending on the scope of the task force, this national unit may focus on one type of justice problem, a number of the most pressing ones, or a combination of gamechangers. 

The main criterion for this unit would be its ability to maintain momentum via a gradual and sustainable improvement in resolution and prevention rates. The means to do this would be based on the five strategic interventions described in this report. The unit would therefore focus on: (1) regularly monitoring and publishing data on justice problems, their impact and outcomes; (2) further implementing evidence-based working; (3) ensuring gamechangers are scouted, implemented and scaled; (4) representing the needs of innovators and citizens in their efforts to improve the enabling environment; and (5) engaging in the activities described in this chapter to strengthen the movement. 

Initially, the focus of the permanent unit may be to sustain the work of the task force. Regular meetings in which task force members are assigned tasks to follow up on the progress of the strategic interventions would still be needed. New members of the task force would need to be recruited on a continuous basis. A core group of eight members, with a broader task force of 30 members, have worked best to date.

In order to carry out these activities successfully, the members of the local people-centred justice unit will need a broad variety of skills. The leadership of the unit should consist of people with a high-level network and access to the media. 

Determining how a centre like this could become sustainable is still a work in progress. Currently, the user-focused perspective of the justice system is not safeguarded in a systematic way. In some countries, innovation centres at universities are taking on this role, often led by ex-ministers or ex-chief justices. The university affiliation ensures a research orientation. It also has the disadvantages of a university bureaucracy, and funding may be limited.

University centres tend to be more vocal than research or training centres connected to the judiciary, the ministry of justice or the legal aid board. The latter often provide good data, but are less active in providing external incentives. In sum, the task force will have to carefully weigh the options for establishing a permanent unit.

Examples of knowledge centres are: IAALS (Institute for the Advancement of the American Legal Systen, Denver), Centre for Innovative Justice (Melbourne), Namati Legal Empowerment Network, Centre for Justice Innovation (New York), Judiciary Training Institute (Nairobi), National Centre for State Courts (Washington), Harvard Access to Justice Lab, Legal services consumer panel (London), Federal Justice and Legal Research and Training Institute (Addis Ababa), International Legal Aid Group, Datos Abiertos de la Justicia Argentina. Self-represented litigants network. Barefoot Law in Uganda is a laboratory for new treatments and services.

Organising the international body of knowledge

Increasing access to justice for all is a UN Sustainable Development Goal. SDG 16.3 is a common goal for every country. Data collected on justice problems confirm they are largely similar in all countries and that  solutions are likely to be similar. Comparative dispute resolution research confirms that mediation styles and preferred interventions differ as much between individual mediators as between the countries in which they operate. Decision-making by individual judges or community panels follows similar patterns everywhere. Information about rules is shared through similar channels: websites, telephone help desks and advice by legal professionals. Innovations developed by justice startups are comparable as well. The similarities have been consistently identified by researchers in the fields of comparative dispute resolution and comparative law (Moscati, Palmer and Roberts 2020; Nolan-Haley 2020). 

Sustainable development goals are common challenges for humankind. They are textbook examples of a moonshot challenge. The effort to develop vaccines for Covid-19 and to organise how they are effectively delivered to every country demonstrates what international cooperation can achieve and how it can be improved. In order to make this happen, much groundwork was needed.  

What might task forces – working together across borders – ask from a major foundation supporting Sustainable Development Goal 16.3? The following international public goods can substantially enhance the delivery of people-centred justice. 

Elements of a standardised knowledge infrastructure
Examples and inspiration
Taxonomy of justice problems
OECD review of legal needs studies provides a taxonomy. Legal Issues Taxonomy by Stanford Legal Design Lab. ICD-11, DSM-5
Standard way to measure impact of justice problems
Legal needs studies have experimented with visual and numerical impact rating scales. HiiL’s JNS has different impact measures. Global burden of disease methodology.
Standard way to determine resolution rate and other key indicators
UNDP, WJP, OECD and OSJI have worked on a civil justice indicator.
Standard outcome monitoring tools for most pressing justice problems
Standard methods for developing treatment guidelines
WHO handbook for guideline development. HiiL guideline methodology for justice interventions.
Treatment guidelines most pressing justice problems
National Institute of Corrections evidence-based practice. Many jurisdictions have best practices for probation services (UK example). HiiL examples of recommendations for family justice and land justice
Recommendations for community justice services
WHO guideline on health policy and system support to optimize community health worker programmes, 2018.
Model law enabling innovative court procedures, innovative legal services and innovative treatments
Regulatory sandbox rules, Designs of legal services regulation, Laws governing innovation in construction industry, health care and other public services.

International cooperation has delivered similar public goods in the past. The World Health Organisation (WHO) and other international standardisation bodies can provide valuable information on lessons learned. In this report, we again and again emphasised the benefits of evidence-based approaches and economies of scale. Most task forces will work on a national level to secure these benefits. On an international level, the benefits of cooperation and collective learning are similar and as significant.  

Frenken, K. and Hekkert, M. (2017). Innovation policy in times of societal challenges. MeJudice: Economen in debat. URL: https://www.mejudice.nl/artikelen/detail/innovatiebeleid-in-tijden-van-maatschappelijke-uitdagingen. Accessed on August 6, 2022.

Garoupa, N. and Markovic, M. (2021). Deregulation and the Lawyers’ Cartel. University of Pennsylvania Journal of International Law, Forthcoming, George Mason Law & Economics Research Paper No. 21-16, Texas A&M University School of Law Legal Studies Research Paper 21-30. 

Hadfield, G.K.(2021). Legal Markets. Journal of Economic Literature

HiiL, (n.d.-h). User-friendly contracts. URL: https://dashboard.hiil.org/the-gamechangers/user-friendly-contracts-and-other-legal-documents/. Accessed on July 31, 2022. 

HiiL, (n.d.-i). Online information, advice and representation. URL: https://dashboard.hiil.org/the-gamechangers/online-information-advice-and-representation/. Accessed on July 31, 2022. 

HiiL, (n.d.-k). Claiming services helping people to access vital public services. URL: https://dashboard.hiil.org/claiming-services-helping-people-to-access-vital-public-services/. Accessed on July 31, 2022. 

Moore, L. and Farrow, T.C.W. (2019). Investing in justice: A literature review in support of the case for improved access. Canadian Forum on Civil Justice. 

Moscati, M., Palmer, M. & Roberts, M. (Eds). (2020). Comparative Dispute Resolution. Edward Elgar Publishing Limited: UK. 

Nolan-Haley, J. (2020). International Dispute Resolution and Access to Justice: Comparative Law Perspectives. Journal of Dispute Resolution.

7. Strategy 4: improving the enabling environment

7

7. Strategy 4:
improving the enabling environment

Trend Report 2021 – Delivering Justice / 7. Strategy 4: improving the enabling environment

The demand for effective solutions for pressing justice problems is both evident and substantial. New methods to resolve problems are available, as are supporting technologies. Yet in most countries the gamechangers needed to resolve all pressing conflicts effectively have not yet emerged. If a task force wants this to happen, its members need to think about how the financial and regulatory environment can enable it to do so. 

Evidence-based treatments and service delivery models operate in the regulatory environment for legal services. In many countries, only lawyers who graduated from law schools are allowed to give legal advice. Regulations also restrict the business models lawyers are allowed to use. Dispute resolution services by courts are regulated by rules of procedure. Moreover, newly developed services need to find a place in budgets and procurement systems. 

Introducing game-changing justice services is not for the politically naive. A task force needs to pave the way. It should work on reforming regulatory, relational and financial systems so that they can better accommodate scalable models for justice services and effective interventions. The guiding principle of this strategy is to ensure a level playing field that allows game-changing justice services models, treatments and interventions to compete with existing offers. A task force needs to work on this from the start, in parallel with the first three strategies. Strategic timing and early wins are crucial. As we will see in the next sections, this can be difficult, but task force members have many levers of change available for their strategic use.

Timing of dialogue on regulation of justice services

This is what can happen if the enabling environment is not addressed early on: 

The task force has been established and its members have jointly assumed ownership of improving the enabling environment. Domestic violence problems have been prioritised and goals and targets have been agreed upon. One or more gamechangers have been selected. Scaling-up work on the gamechangers has started, ensuring that effective treatments will be more widely available. The task force is now convinced that game-changing services can be organised, become sustainable and reach most people with justice problems, either in communities, online or through specialised one-stop court procedures. The task force reports to the ministry. It is thanked for its great work and…five years later a member of parliament asks the minister to set up a committee to investigate the urgent and pressing problem of avoidable domestic violence. 

Working to create the enabling environment should be undertaken in parallel with executing other strategies and should start early on. If it starts too early, however, it will have insufficient momentum. Justice innovation has a chicken and egg problem. Civil servants or politicians responsible for regulation will always ask what changes in the laws are needed for a particular innovation. Rightly so, because they have seen many major law reform projects fail. They need to see a new justice service working at scale before they will consider revising the regulatory framework. 

Unfortunately, many innovations will become stuck in the early prototype stage. Innovative services offering evidence-based interventions can only grow into  gamechangers if they can land in a positive enabling environment where they are welcomed and rewarded with access to a market made up of people with pressing justice problems. Without this reward in sight, few justice insiders and few entrepreneurs from outside the sector will start the complicated ventures that can lead to game-changing justice services. 

Our experience is that a powerful example of a game-changing service — or at least a prototype and a strong initial validation by a task force — is needed to create momentum for regulatory innovation. As we will see below, the US regulatory environment for legal services needed the example of LegalZoom before it could begin opening up. 

The need to improve the enabling environment can be illustrated by the initial results of the strategy for evidence-based working. The task force can demonstrate that the codified way of dealing with conflicts and crime through adversarial procedures is much less effective than what practitioners currently do and what research recommends. 

If the task force acts too late, it will lose momentum and deplete its budget. As a result, teams working on innovative services may give up and the frustrations with outdated ways of working will increase. The public will continue to have the impression that justice sector institutions perpetuate injustices. 

Ideally, the enabling environment needs to be created within two or three years. This is the normal cycle of government and the time horizon for a minister of justice. For investors, this is an acceptable time frame for an initial round of funding. Within this timeframe, the task force must operate strategically, choosing from a number of options, as outlined below.

Transforming the political environment: possible coalitions

In the HiiL model of justice transformation, creating the enabling environment consists of separate stakeholder dialogues with a focus on integrating gamechangers into laws and budgets. Members of the task force will need to align their work schedule with the rhythms of governance in ministries and parliaments. This is the world of national development plans, coalition agreements, ministerial budgeting and court financing. It is also the world of experts deciding on revisions of codes of procedure and bar associations that have a crucial role in legal services regulation.

The task force will need to reflect on political sensitivities. A political economy analysis may be helpful. In many countries, this analysis will show a political arena that is polarised between conservatives and liberal progressives. It is likely that the political economic analysis will reveal that justice policies are shaped within a framework in which conservative parties emphasise toughness on crime, national identity and respect for authority, whereas progressive parties focus on social safety nets, inclusion and participation. Family justice can be heavily politicised by ideas on family values or by gender stereotypes. In employment justice, progress may be difficult without the consent of trade unions. Legal aid is more likely to be promoted by left-wing parties than by parties representing the interests of businesses.

People-centred justice can best be framed as a technical and neutral approach aimed at better treatments and more effective justice services. That said, coalitions still need to be formed between groups that hold power. Breakthroughs in the form of justice policies that have gained broad support have occurred. Recently, many governments have succeeded in reforming criminal justice. In the United States, a coalition was forged between Republicans wanting to save prison costs and reduce recidivism and Democrats wanting more humane, effective treatments and less incarceration. 

Several coalitions are possible. In the European Union, economic considerations have created momentum to deregulate legal services. In England and Wales, where there is a strong legal services industry, independent regulators have been created as a first step. In the United States, coalitions of politicians, leading justices, vocal minorities in the legal profession, a new generation of law professors and innovative legal service providers have formed in several states. The drive to innovate and make justice more accessible is becoming stronger than the tendency to defend the adversarial legal system. In African countries, ministers (or attorney generals) and leading judges are inclined to open up the legal system to community justice services, which are more consistent with local values related to social harmony and justice. These coalitions are supported by NGOs and donors who work from a development and human rights perspective. The case for justice reform is also made by national planners who need to deliver economic growth. 

A task force can perhaps not actively create such coalitions, but it can certainly contribute to them. We have seen in Canada, Nigeria and the United States that coalitions sometimes form at the provincial or state level, and then extend to other states. Smaller states and city states move forward more easily than do big countries.

Budgeting for people-centred justice: increasing the share of the pie

A more technical element of the enabling environment is the budgeting process. This is where an investment plan for a game-changing justice services is likely to land. Investments need to be budgeted. If the sustainable revenue streams for the gamechanger include permanent subsidies from the government, then subsidies need to be secured in a budget (HiiL 2020).

The public justice sector consists of several agencies. The most visible are the courts, prisons, prosecution and police. Countries may also have a forensic laboratory, a legal aid board, probation services, immigration authorities and agencies providing registries. 

These agencies either compete for a slice of the ministry of justice budget, or have to negotiate a share of the general state, county government or municipality budget. Each agency can try to generate additional income from citizen contributions. The government budget allocated to the justice sector is occasionally increased, but more often it will remain proportional to the government budget or a percentage of GDP. 

How can the task force find money for better treatments and service delivery models  in this environment? We offer several options to be further explored by task force members. There is no simple answer yet regarding what works.  

The task force can present the investment plan to the authorities responsible for the budget, showing the fixed costs that need to be funded upfront and a clear trajectory towards breaking even. With limited investment needed and outcomes defined and ready to be monitored, the plan may compare favourably to plans to increase the capacity of police or courts. Task force members can try to convince participants in the budgeting process that a separate budget line for innovation is appropriate, and to reserve 2% or 3% of the total budget for this. This is an objective indicator for investing in research and development that is generally accepted but usually not yet met in government justice budgets. Task force members could even make the argument that systems for conflict resolution need to catch up with a multi-year investment in the range of – say – 10% of budgets that has to be provided from the national budget.

If a new game-changing service requires subsidies from the annual budget, a new agency can be established. This happened in Sierra Leone, where the $1 million annual budget for the legal aid board budget represents 10% of the total budget for the judiciary and courts (Manuel 2020). In some Latin American countries, community justice services (judicial facilitators) are subsidised as a percentage of court budgets. In these examples, the negotiations took many years and potentially game-changing justice services were brought to scale gradually, which helped to make the case for opening up the regulatory environment but also created little urgency to adjust the budgets rapidly. 

Task forces must consider how this new budget line will affect the budget for courts, police, prisons, prosecution and other agencies. In times of budgetary constraints, stopping doing “non-essential” new things has proven to be an easy way out for core justice institutions.  

The task force may therefore prefer to promote an objective budgeting method, where outcomes and their costs are compared. Performance-based budgeting methods are slowly being introduced in the justice sector. Ministries of finance, donors or philanthropists may require budget holders to accept such methods. 

A task force can anticipate this shift towards new ways of budgeting by providing an alternative budget for justice services that is based on outcomes for people. As explained in our Charging for Justice 2020 report, core funding for current justice sector institutions could be combined with outcome-based funding for preventing and resolving justice problems. The justice problems experienced by people can be the baseline for this, with agencies invited to show how their activities and outputs contribute to prevention and resolutions. This should include how courts contribute to the “shadow of the law”. One of the outcomes courts achieve – but are not paid for in most systems – is that their existence and availability as an adjudicator convinces people to agree to fair and speedy resolutions. Just by being there and available ready to intervene, courts settle many disputes.

Another approach for a task force is to team up with existing agencies. Courts or police can reallocate their budgets to game-changing procedures and prevention programmes. They may face internal pressures when doing this – legal aid lawyers may resist investments in legal information websites, for example, or courts of appeal may resist shifting budgets to one-stop shop procedures. 

The most likely pathway to funding is to demonstrate that game-changing justice services can increase the overall budget and contribute to better performance by existing agencies. Better outcomes — through one-stop tribunals and problem-solving courts, for example — can increase revenues for the judiciary. In the United States, drug courts benefited significantly from the fact that federal funding was increased and contingent on participation in rigorous evaluations that they might not otherwise have been able to afford. This research enabled them to demonstrate their cost-effectiveness and secure sustainable funding streams early on. Furthermore, legal aid boards can increase their revenues and provide better outcomes when they set up community justice services and online platforms. Police can invest in prevention programmes that reduce crime and therefore the costs of policing.   

A task force can set an example to encourage thinking about strategies to increase revenues. We have learned that revenues are not a concept that court leaders automatically connect to. We recommend exploring this topic in depth by investigating different sources of funding and building a common understanding of how sustainable funding rewards practitioners. Rewards come in different forms: for example, being part of a highly effective team, having access to the methods and tools to be effective, more time to handle complex cases and opportunities for professional growth. 

Court leaders may also be made aware of other revenue streams. One example is charging fees with a healthy profit margin to businesses with complex court cases. In many countries, court fees are set by legislation and schedules are not regularly adjusted. In China, this is done differently (Ng and He 2017). Chinese courts have to optimise their funding. This funding process is discussed openly and in relation to the incentives it may generate. Courts may become too dependent on contributions from the local government and this may be a reason for the central government to step in with funding. A few courts have asked major local companies for contributions, knowing that they can benefit from law and order. Some courts have also been successful in generating more commercial cases that bring in higher court fees, but these can come at the expense of serving the justice needs of the broader population. Researchers Kwai Hang Ng and Xin He found that some courts offer reductions of prison sentences in return for higher fines. A transparent dialogue about funding options is needed. It can reveal the trade-offs that exist in any financial system for a public service. Justice services cannot be assumed to be different from other parts of public life.  

Some countries have found interesting avenues for cross-subsidisation. The best-funded court systems are probably those of Germany and Austria (CEPEJ 2020). Their dispute resolution services are paid from registration fees which cross-subsidise services for the broader population. In their remuneration schedules for lawyers, large claims subsidise small claims. In Sweden, most people have insurance for legal expenses, which tends to be included in the indemnity insurance for their house.

In low-income countries, international donors like the European Union, the World Bank and aid agencies may be willing to make funding for the justice sector conditional. For example, they can make funding for courts or the police contingent on the implementation of service delivery models that are effective and on promoting evidence-based practice. A task force may want to reconcile the donor need for tangible outcomes with the need of justice sector leaders for additional revenue streams.

Levelling the playing field: independent certification of justice services

The enabling environment for justice services consists of regulation of legal services, rules of procedure and rules for legal education. Community justice programmes, one-stop shop procedures and problem-solving courts can only function if rules of procedure allow them to. There are many ways in which the regulatory environment influences what can be offered to the public and who can be involved (see box with the most common examples)

Examples of regulatory barriers

When designing and delivering effective justice or legal services, suppliers may face a variety of regulatory barriers. The following list summarises a number of common ones.

To implement a single game-changing service, many of the rules may need to be changed. In 2013, HiiL helped Dutch courts design a one-stop procedure for neighbour conflicts. The design conflicted with existing rules on formulating claims, serving documents, and defending against claims and court judgments. The mediation services built into the new procedure raised issues regarding mediation by courts being allowed, representation by lawyers and confidentiality of mediation. Informal communication with judges, and the storing of data on the cloud, have led to additional discussions about interpretation of the rules. In 2021, the Dutch were still using formal and costly civil legal actions that can take up to two years to solve a pressing nuisance problem and the new procedure is still not implemented.

Innovators providing game-changing services are thus likely to be entangled in a web of incompatible rules. Incumbents, who deliver documents and handle cases in the traditional way, want innovators to follow the same rules. Unsurprisingly, this is their understanding of a level playing field. In the justice sector, incumbents derive extra power from their proximity to the system that enforces the rules. Bar associations and courts apply these rules in the way they are used to, working from precedent. They are not equipped to consider the effectiveness of new solutions for users compared to the current solutions. They mostly do this without having the intention to make life difficult for justice start-ups or to block game-changing services; they just want to uphold the rule of law in their own backyard.

The result is that many innovators face an uphill struggle. Either they shrink their services to fit the regulation, or they face long legal battles and risk facing sanctions that destroy their business. Bar associations frequently bring suits against providers of innovative services. Services that have scaled across jurisdictions may be burdened with legal challenges from multiple local bar associations at once. 

Innovators and incumbents both need a level playing field. The current regulatory regime for legal services and court procedures stifles innovation. This is perhaps the single biggest barrier to access to justice: the solutions and services that work often cannot be implemented.  

LegalZoom: regulatory regimes stifling innovation

The American Bar Association prohibits non-lawyers from practising law. Because of this, LegalZoom has been sued by individual lawyers and accused by state bar associations on the charge of unauthorised practice of law (UPL). 

Here, the bone of contention is not the provision of blank legal documents or forms per se, which is permissible by law. Rather, what ruffles feathers is the provision of customised and personalised legal documents to customers. LegalZoom’s software asks the customer to answer a series of questions specific to the legal document requested. The software assesses the individual’s needs, marital status and location. Based on this information, it creates a customised legal document. This service offered by LegalZoom has been considered tantamount to UPL by various state bar associations and lawyers. 

The UPL statute is meant to protect consumers from fraudulent individuals who may pose as lawyers and damage the interests of the people. However, critics reason that if well regulated, non-lawyers can provide effective legal services at a fraction of the cost of a lawyer. 

A turning point came when the State Bar Association of North Carolina issued cease and desist letters to LegalZoom on the charge of UPL. LegalZoom fought back by filing a case against the State Bar Association stating it was promoting monopolistic practices in the field of law. The two sides reached a settlement in 2015 in which the State Bar agreed to support online providers of legal services provided the latter enacted regulations to protect the interests of consumers. This is when LegalZoom found support from other national public institutions. The Antitrust Division of the Department of Justice and Federal Trade Commission  supported this agreement and acknowledged that LegalZoom filled a lacuna in the provision of affordable legal services.

Despite the commercial success of LegalZoom, the company faced litigation on charges of UPL for years. It took State Bar Associations and administrative bodies a long time to realise that such companies play a pivotal role in increasing access to justice and that rules and regulations need to be modified to allow such companies to flourish. These regulations should be modified not only to accommodate different types of legal service providers in the market, but also because new legal service providers need to be monitored in order to protect consumer interests. 

LegalZoom possessed the financial resources and resilience needed to withstand pressure from a tough regulatory environment. Not all legal innovators may be able to do the same. How can the task force protect fledgling innovations and ensure they can flourish?

A regulatory sandbox is an emerging tool for this and one that a task force can promote. A regulatory sandbox allows the regulation of an innovation  to be designed in sync with the innovation itself. A regulatory sandbox is similar to the regulatory environment for medical experiments. Clinical trials allow for comparing innovative treatments with current ones under conditions that control the risks for trial participants and optimise the potential benefits of innovations. The sandbox can allow for experimentation and deliver the conditions for a licence to operate the new treatment or service delivery model.

Utah regulatory sandbox: the future is here

In August 2020, the Supreme Court of the State of Utah in the United States unanimously authorised a two-year “legal regulatory sandbox” pilot programme intended to bridge the access to justice gap (Utah Supreme Court n.d.). The programme’s mandate is to make it possible for non-lawyers and other agencies to experiment with innovative justice models and approaches to the system of law and justice. The effort is billed as a solution to the failure of the justice system to provide legal representation to poor, working-class and middle-class Americans. The changes followed the task force report entitled: “Narrowing the Access-to-Justice Gap by Reimagining Regulation”.

In a statement, Utah Supreme Court Judge Deno Himonas said,

We cannot volunteer ourselves across the access to justice gap. We have spent billions of dollars trying this approach. It hasn’t worked. And hammering away at the problem with the same tools is Einstein’s very definition of insanity. What is needed is a market-based approach that simultaneously respects and protects consumer needs. That is the power and beauty of the Supreme Court’s rule changes and the legal regulatory sandbox (DeMeola 2020).

New businesses and initiatives participating in the sandbox will be overseen by a new regulator: the Office of Legal Services Innovation. The regulator will work directly under the supervision of Utah’s Supreme Court (Utah Supreme Court n.d.). 

The rest of the world looks forward with interest to the experiments carried out in this historic sandbox as it will provide important lessons for other justice systems, innovators and legal regulators.

In most countries that are reassessing the regulation of legal services, experts advise moving in the direction of regulation based on the treatments that are applied and the risks involved. They advise removing most restrictions on how law firms and other providers of justice services can be owned and governed, whom they can employ and who can take part in management. Details of service delivery models can be left to the suppliers. 

A task force should consider a more substantial system change, which would really create a level playing field. Detailed regulation of legal services and procedural rules – which stifles the development of effective treatments by courts, police, prosecution and lawyers – can be replaced with a certification system. 

Under a certification system, which is common in health care services, any effective new treatment or service can be proposed and evaluated. A court or agency can then design and develop a treatment, collect evidence about its effectiveness, and ask for approval by an independent evaluator. The same procedure can be followed by a law firm, startup or public-private partnership.

Procurement system: improving make-or-buy decisions

In most countries, your doctor is likely to be a private entrepreneur. Water is cleaned and brought to your tap by specialised companies. Electricity and public transport are other examples of public goods usually sold to citizens by the private sector. In the justice sector, work is outsourced to law firms, bailiffs, translators and foundations delivering probation services. Arbitrators and mediators are resolving disputes for parties who overcome the submission problem and jointly opt out of courts. Prison services and forensic therapeutic interventions are organised through different public-private partnerships.    

A task force better avoids a discussion about privatisation, because this creates value-laden discussions about market versus government in a sector that is obviously delivering public goods. A preferred approach is to help government agencies consider their make or buy decisions. New interventions, treatments and service delivery models are developed by private and public initiatives. In order to benefit from private sector innovation, government agencies should be able to procure innovations from this sector. If the private sector offers services superior to those the nearest government agency can offer, it should be empowered to do so. In some countries, courts have a poor track record of digitising and modernising procedures. Until recently, they have tended to build custom case management systems – in spite of the fact that several providers offer configurable case management systems that can be accessed for a reasonable fee. As we have seen, many innovators have designed smart procedures that could be implemented by courts, shifting the innovation risk to the private sector. 

As the examples above illustrate, task forces and ministries of justice would achieve better results if they allowed selected organisations to offer effective procedures and interventions. Currently, mandatory one-stop procedures are only provided by courts organised by governments or new government organisations (ombuds services, tribunals and administrative agencies). In future, the provision of these procedures could be outsourced to spinoffs from courts, led by an entrepreneurial judge, NGOs with a track record in justice services, IT companies selling case management systems with online dispute resolution capabilities, or start-ups run by lawyers-turned-justice entrepreneurs. The relevant regulatory body could allow private services certified by an independent government agency to be offered. Alternatively, it could contract one of the organisations mentioned above as the manager of a service with trusted judges paid by the state as adjudicators. A range of public-private partnership options exist.

Prevention programmes and community justice services have to make similar procurement decisions. User-friendly contracts, claiming platforms, and information and advice websites are more likely to be delivered by private companies. Private and public organisations can both supply similar services with similar outcomes for people. A claiming platform set up by a foundation or a startup is in a way a substitute for a user-friendly procedure hosted by a government agency. Information and advice websites can be run by startups, NGOs or government legal aid boards. 

The task force may want to help the ministry of justice to design a procurement system that deals with these issues in an objective way. When a government procures a service, the playing field for competitors should be level. In order to get citizens the best deal, government agencies should be viewed as competitors. 

An effective procurement strategy includes the option to buy or co-develop new technologies in a way that is fair to innovators and governments. HiiL has worked with many innovators who feel their innovations have been copied by government agencies. Contemporary procurement rules are being redesigned to optimise innovation and can provide inspiration on such matters.

  • The European Commission has undertaken initiatives to increase the uptake of innovative goods and services in public procurement practices (European Commission n.d.). 
  • The right to challenge is a mechanism through which communities or citizens can challenge a government agency with a proposal to deliver a public good in a better way than is provided by the agency. See example from the United Kingdom (Government of UK n.d.).

Navigating vested interests: a pathway towards growth

The task force will need to invest much of its thinking in how to ensure a level playing field. One risk of this approach is that the task force is held up in lengthy discussions with the incumbent agencies currently delivering solutions. Interacting with different offices inside ministries or with bar associations can be complicated and time-consuming. 

One possible way forward is to apply a method that is at the core of people-centred justice reform: to focus on outcomes and start designing the arrangement that delivers the most sustainable solution. In this case, the ideal agreement would increase revenues for justice sector agencies, incentivise reforms of treatments and services and make it possible to stop ineffective activities (by allowing adequate transition periods or providing compensation).

In the box below, we provide a general outline of such an agreement based on HiiL’s  Charging for Justice report (2020). 

A pathway to growth

CEPEJ, (2020). European judicial systems: CEPEJ evaluation report

Cohen, M. (n.d.). LegalMosaic (blog). URL: https://www.legalmosaic.com/blog-2/blog-medium-2-2/. Accessed on August 3, 2020.

DeMeola, Z. (2020). Utah Supreme Court Makes History with Vote to Establish Regulatory Sandbox. IAALS (Blog). 

European Commission, (n.d.). Innovation procurement. URL: https://single-market-economy.ec.europa.eu/single-market/public-procurement/strategic-procurement/innovation-procurement_en. Accessed on August 3, 2022. 

Government of UK, (n.d.). Community right to challenge: Statutory guidance. URL: https://www.gov.uk/government/publications/community-right-to-challenge-statutory-guidance. Accessed on August 3, 2022. 

Harvey, F. (2015). Paris climate change agreement: the world’s greatest diplomatic success. The Guardian. 

Henderson, W. (n.d.)Legal Evolution (blog). URL: https://www.legalevolution.org/. Accessed on August 3, 2020. 

HiiL, (2020). Charging for justice: SDG 16.3 Trend Report 2020.  

Manuel, M. (2020). Speaking notes, OECD webinar, 22 October 2020. Overseas Development Institute.  

Ng, K., & He, X. (2017). Economic Embeddedness: The Political Economy of Court Finances. In Embedded Courts: Judicial Decision-Making in China (pp. 142-166). Cambridge: Cambridge University Press. 

Utah Supreme Court, (n.d.). What we do. URL: https://utahinnovationoffice.org/about/what-we-do/. Accessed on August 2, 2022