Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:37] Speaker B: Hello, my name is Sydney Nelson, a student at Harvard Law School, and today I'm joined by Jacqueline Lynn, a fellow student and classmate. We'll be speaking today about a blog post that I wrote, the second in a series about exploring how to increase access to case information to improve access to justice more broadly.
Today we're going to be talking about the importance of prioritizing pro se litigants in the federal judiciary's court record platforms.
[00:01:03] Speaker C: Hi Sydney. Super happy to be here. Can you share what made you interested in this topic?
[00:01:09] Speaker B: Yeah, definitely. So I shared a little bit about this on the first podcast I did, but last year I spent a semester researching the litigation experience of pro se prisoner litigants versus non pro se or non prisoner litigants. And to understand the experience of litigants, I need to know things like where was each case set in the process? How long was the case open? How long before a judge issued a report and recommendations, which is something required in the prisoner context, and how many docket entries were there for a given case, and most importantly, what was the outcome of the case? So to answer these questions, I turned to pacer, the Case Record System for the Federal Judiciary. PACER stands for Public Access to Court Records. Cute. Very snappy. And as a service of the Federal Judiciary Branch, Pacer houses over 1 billion documents from across the 200 federal courts. That's a lot of documents. That's nearly all the documents filed by a judge or the parties in any case.
And in 2022, there were more than 4.1 million PACER user accounts, but only approximately 14% of those, or about half a million users, were active. So that's just to give you a scale of what PACER encompasses. 200 federal courts, 1 billion documents, and about half a million active users.
However, when I started exploring pacer, I found it to not be very intuitive. I spent a ton of hours trying to figure out the best way to use the search feature to figure out what was or was not included in any given docket sheet and when there was something in A docket sheet, like, what did it even mean? I even enlisted a group of my friends and fellow students here at Harvard to help me. And we spent hours poring over these case records and PACER in the dockets, trying to figure out for each case, where did it stand, what was the most recent judicial action and what was expected next in the case.
And I began to think about how much trouble I as a law student was having navigating the system. So how would someone with zero legal training ever be able to figure it out?
And not even just that, but my life before law school involved a lot of user interface and experience design. So as you can imagine, I had a lot of opinions.
[00:03:17] Speaker C: That's super interesting. Thank you for sharing. So in a sense, your pre law school life was colliding with your law school life. So could you share a little bit more about what your user experience background entailed? What did you do before law school?
[00:03:30] Speaker B: Yeah, it was a crazy collision. And I've always been interested in how technology can help people access the information they want and need. When I was a kid, I created a couple websites for fun, for example, but nothing serious. That is until I spent five years in government consulting before law school. And I began carving this niche for myself where I was incredibly passionate about the user experience of the tools and the programs the government is releasing, especially when they're a mission focused like how can we leverage these programs and tools to move the government forward in a purposeful manner and create real impact for people?
So for example, one project I served as user experience lead for was a revamp of a government portal that had over 20,000 users. And on another I led the user experience evaluation for a government healthcare messaging app.
Whenever I led one of these user experience projects, I was driven by a couple of questions.
One, what was the goal the government was doing with this piece of technology? What were the tangible outcomes that they were hoping to see?
Two, what did the users expect to do with the technology? What did they wish it could do?
And then three, how do we build the technology in a consistent, easy to use and intuitive way to achieve both of these goals?
And when I was focusing on that user question, what users expected to do with the technology, I often distributed surveys, port over user data, connected focus groups, basically anything I could do to talk to people who are actually using the application or might be using this tool someday and figuring out what their desires and goals were in such a process.
[00:05:07] Speaker C: To take a step back, for those of us who might be less familiar with the phrase user experience.
Could you help us define what the term means?
[00:05:15] Speaker B: Yeah, definitely. So, user experience, or sometimes referred to as UX in shorthand, generally refers to the overall experience a customer or user has when interacting with a product, system or service.
And ideally, you're creating an experience that provides meaningful, intuitive and enjoyable experiences for users that meets their needs.
And so a really good example that I like to share of user experience is the Domino's Pizza Tracker.
Back in 2009, Domino's was experiencing declining sales and criticism about the quality of its pizza. And so then it decided to do something radical for a business. The company embraced transparency by launching a pizza tracker on their website.
And this pizza tracker succinctly displayed the steps that a customer's pizza went through.
And these steps have gone through iterations through the year, but one iteration, for example, was ordered, prep, bake, quality, check ready. So those are the five steps. Most recently, the update boils the pizza progress down to four simple stages. Place, make, deliver and. And while this was novel at the time, this Domino's Pizza Tracker one now sees echoes of it anytime. There's a digital tool that has broken a process into a visual and displays live to the customer where they are in this process. It's pretty ubiquitous, especially among ordering products from big websites when you've ordered food.
And so because it turns out people love tracking the progress of their orders across their products and services, and this general effect has grown, consumers now have come to expect quality user experiences when leveraging digital tools such as websites or applications.
[00:06:55] Speaker C: Oh yes, that's super cool. I've definitely used trackers like these in my own life if I'm waiting on an order or food. But what does this pizza tracker have to do with access to justice?
[00:07:05] Speaker B: That's a great question.
So going back to my experience in pacer, in order for me to figure out where any given case was at, I had to wade through the docket sheet and attempt to piece together different things to figure out what was going on.
And if it's hard for me as a law student, imagine how challenging it is for individuals who are not attorneys or repeat players to figure out where their own case is at. And imagine instead if there is something like a Domino's Pizza tracker that in one quick glance you could tell where a case was at.
Now, of course, litigation and litigating a case is a lot more complicated than ordering a pizza. But the broader point is how can PACER prioritize the user experience of all users in their system and including pro se, litigants and how do you make that experience so intuitive that it doesn't require a legal degree, maybe hundreds of thousands of dollars of debt to figure out what in the world you're looking at?
[00:08:01] Speaker C: Yeah, so obviously we're not just dealing with making and tracking pizzas here. This is a lot more complex. So how has the judiciary, the federal judiciary, specifically approached digital tools when it comes to case management and tracking for the public?
[00:08:15] Speaker B: Yeah. So indulge me as I give a quick history lesson on PACER. And so PACER came about in 1988 and the judiciary had launched it as a court record system following the rise of personal computer sale.
And as it does now, even back then, it still allowed the public to view certain court documents digitally.
Then about a decade later, the court adopted something called CMECF or Case Management Electronic Case Filing. Not a snappy of a name, but this allowed parties to electronically file before the court. So versus you used to have to submit everything via paper to the court. Now there is an option to file electronically between these two systems. CMECF only enabled lawyers to file these documents, while PACER allowed the public, including lawyers, to access these records. Two different user bases there.
Excitingly, the adoption of these two systems was crazy. While 11 district courts used the systems in 2002, within five years the usage was nearly universal across the federal courts. And together these systems are regarded as the oldest, largest continuous, integrated case management and E filing system in the world. Go us. That's a big deal.
[00:09:32] Speaker C: So where do these systems stand now? It's been nearly 40 years after their launch.
[00:09:37] Speaker B: Yeah. So sad news. Despite their impressive beginnings, PACER and CMECF have been slow to keep up with the pace of technological change.
And technology has changed a lot since 1988 when PACER was first launched.
So in 2009, the federal judiciary began exploring requirements for a modernization effort of their systems titled NextGen. And this just stood for the next generation of CMECF.
These updates required eight years to implement and they began in 2014 and ended in 2022. And this is the point where all federal courts had to transition to next gen CMECF. So what did we get for that? Over 10 years of work, 8 years of implementation effort.
The major public facing update was establishing a central sign on or cso. This just meant that filers could use one PACER account to access PACER in any next gen court in which they are allowed to file in versus having to maintain separate accounts for each court.
So this is most beneficial though to attorneys who have often had multiple accounts for each court they're litigated in. So if you're an attorney and you have 10 different courts that you've made appearances in, you needed 10 different accounts. Now with this update, you just need one.
However, this doesn't really help the average user, who might just be looking at court records and not filing in multiple cases, but they're just looking at court records through pacer. So that was one downside. Additionally, the other updates to this next gen seem to mostly focus on improving capabilities for chambers and judicial use, rather than the needs of attorneys and public users. So critics of next gen cmecf, myself included, argued that it was mostly a facelift on some parts, but not all, and did not fundamentally improve the user experience of PACER and CM ecf.
And there's others who have done active steps in response to what feels like we're lacking on pacer's part. So some competing platforms have recognized how these court systems are lacking and have promised a better user interface and experience for searching and viewing federal court cases. These are platforms like PACER Pro Recap and PACER Monitor have all been like, okay, y', all, this is crazy that we're using this. We can do this better.
Additionally, members of Congress have expressed frustration at the pace and scale of updates. And there's been multiple attempts to pass versions of what's the Open Courts act, which is an act directed at PACER and improving PACER. And it was attempted in 2020 and 2021.
And I think that one of the co sponsors put it really nicely. This is from Senator Dick Durbin, and he said in one of his quotes that the PACER system is not keeping pace with reality or technology.
I think that's an incredibly accurate depiction of what we're dealing with here.
And so against this backdrop of criticism, there's been a new wave of modernization in the works called the Case Modernization Effort, or cmm.
And the idea is that this is going to replace next gen CM and ecf, replace wholesale, both PACER and cm. Ecf.
The courts have claimed that it's going to serve as a modern, sustainable platform for the judiciary to manage cases, improve communication, collaboration and engagement among courts, the public, and other partners.
And what was interesting is an acceleration of this modernization effort was announced this past month, March of 2026, in response to a cyber attack on the case management system.
And the judiciary has now said that they expect most of the updates to be completed within the next two to three years.
[00:13:17] Speaker C: Okay, so this sounds like good news, right, that the courts are taking these criticisms very Seriously. And these updates are happening and accelerating?
[00:13:25] Speaker B: Yes and no. I am glad the courts recognize that the systems need updating. I 100% agree.
However, I am afraid that this modernization effort will fall into the same pitfalls of NextGen by inadequately accounting for individuals who are not attorneys and, and not repeat players to the court, particularly pro se litigants.
So while most users of PACER are attorneys, which makes sense, right? Lawyers, Mo. The proportion of pro se litigants is not insignificant.
And so when you look at there's about 25% of cases of a non prisoner civil docket, 25% of those cases involved pro se parties back in 2021, and 25%, that's a quarter. That's a big chunk. But the challenge is that these pro se litigants already face significant access to justice barriers when compared with parties with representation.
So I am afraid we are going to further that gap, that access to justice gap that already exists by failing to prioritize the needs of pro se litigants in the upcoming update.
[00:14:31] Speaker C: But why do you fear that pro se litigants, their needs won't be reflected or prioritized?
[00:14:37] Speaker B: Yeah. So despite these challenges that I just walked through, the rhetoric by the federal judiciary in the context of these modernization efforts doesn't seem to reflect any level of prioritization.
For example, in 2021, the Administrative Office or the AO of the United States courts conducted a user satisfaction survey on pacer.
And this survey was sent to individuals who had used PACER at least once in the previous year.
Out of a sample of 59,000, about 11% or 6,000 responded.
And of those 6,000 that responded, 10% identified themselves as plaintiffs, defendants or debtors. So pro se litigants, and this is in contrast with 63% of those who responded that they represented the legal sector.
So in this survey you had 60% response saying that I'm probably a lawyer, I'm in the legal sector, and 10% saying that they're pro se litigants. That's a big gap. And in the user experience world, each of these groups is considered a user group. And user groups are just a collection of users who perform a similar task, usually with a similar goal. And how you define these user groups, especially when conducting user satisfaction surveys and designing platforms, is really important.
So for example, if you define a user group as someone who files a document in a case, lawyers and pro se litigants will both be included in that definition.
Comparatively, you could define a user group as just lawyers or folks with legal training and another group as those filing without legal training pro se litigants. And defining it in this way allows you to tease out the different needs between the two.
And what's interesting about this survey that the Administrative office released is that it seemed that the courts recognized that lawyers and pro state litigants belong to different user groups because it had the data saying who's how many percentage of each have responded to this survey.
But when you get to the responses, it doesn't seem like they've differentiated significantly between the responses of these user groups and these user groups. Lawyers and pro se litigants have a lot of differences. Think education level, occupation, familiarity with the judicial system, frequency of PACER use. But again, the survey seems to pose the same questions to both and combines their responses in the results.
So this means that any improvements or areas of need highlighted by the survey will likely not accurately reflect the specific needs of pro se litigants. So for example, the survey shows that PACER usage on mobile devices is not common. And so if I am a developer I will look at that and go okay, so if I developed a mobile app or improved our mobile app or mobile experience, it's not going to get used. So that's a poor use of my resources as an organization.
However, because the responses are combined for lawyers and pro se litigants in this survey, that answer that PACER mobile usage is not common more likely reflects the fact the legal sector's job related usage is on computers rather than reflecting that maybe pro se litigants might be tracking a case on their own cell phone.
And so that's just one example of many in this survey where answers get smushed together and it doesn't allow you to tease out the, tease out the different needs of the different user experiences.
And having designed user experience surveys myself, like I said earlier, I'm always paying attention to the different user roles and the different needs that the users have within your system and then displaying the results in a way that is responsive to those variations.
And so it's to me it's less useful to know what a total percentage across all user groups is.
70% of people like X. And it's way more helpful for me to understand this group likes this and this group likes this.
That was a lot. Bear with me. I'm going to give you one more example of why I'm worried about the court in the next modernization update. And another example is something called the Courts Electronic Public Access User Group. And this is an advisory group established by that administrative office of the US Courts and the EPA user group provides a forum for PACER users to share and recommend ideas for expanding and improving services.
And here's the problem. The EPA user group has attorneys, journalists, librarians and researchers.
But from what I can tell, it does not appear to include any pro se litigants.
And this user group helped craft the questions for that user satisfaction survey I was just talking about. Which if you don't have any pro se litigants, that could explain why the questions and the surveys did not appear to reflect the needs of pro se litigants. And so the group that you're having advising the courts does not have pro se litigants resulting possibly in surveys or in evaluations that are not focused on that user group as well. It makes me wonder, like who's talking about the pro se litigants in this new modernization effort?
[00:19:41] Speaker C: Okay, that's super cool. So I can totally see how these little details kind of end up with a system where pro se litigants are not really reflected or prioritized. But if the court's major user base is attorneys and lawyers, doesn't it make sense for them to prioritize lawyers needs in these updates?
[00:20:00] Speaker B: Yeah, so I agree. From the pure like how much money each user represents to pacer, it could feel intuitive for the courts to focus on the highest volume users. PACER has fees it is not free to use. There are certain limits on those fees. But in general, the users that generate the most fees likely have prioritization. Because about 85% of this new modernizations project that's funding, 85% of its funding comes from PACER fees.
However, it's important to remember our courts are not a business. They are a public channel for justice.
And in the design space, there's been a lot of discussion on the difference between designing for the masses and designing for those have been historically marginalized or the users furthest from justice.
There's this concept called universal design, in which products and environments are designed to be usable by all people to the greatest extent possible without the need for adaptation and specialized design.
The General Services Administration, which is a independent agency in the government that supports other federal agencies, has even embraced this concept and encouraged other federal agencies to design with everyone in mind. So if the courts embrace universal design, they'd be thinking about how to make PACER usable by everyone, not just the lawyers.
And even further, given that pro se litigants experience so many barriers when it comes to access to justice, the court could even take it one more step and embrace something called targeted Universal design and targeted universal design is a strategy that pursues universal goals, like universal design, but instead with targeted or tailored measures, programs or interventions. So whereas in universal design, universal goals are pursued with universal efforts. It's a lot of universal. Targeted universal design recognizes that different users might require different support or tools to reach the same end goal. It's the load of the conversation around equality, where everyone's equal and equity. What does everyone need to be equal?
So in this way, the court could consider how the needs of a lawyer different from that of a pro se litigant, and how each user group might require different things of pacer. The court could embrace this targeted universal design.
And the court system has. The court has already said in their strategic plan that they have a goal of improving access for pro se litigants, including in their words, ensuring comprehensive, readily accessible information about court cases.
So if that's true, the court should be considering how to actively design PACER with pro se litigants in mind through targeted universal design.
[00:22:35] Speaker C: Okay, that analogy is super useful between equity and equality. And it's super cool to learn about these two principles of universal design and targeted universal design. So if you were in charge of this modernization effort, how would you look to meet pro se litigants needs?
[00:22:51] Speaker B: So the Domino's Pizza tracker is but one idea to help visually represent where cases are in the process.
And I would just tell the judiciary, think about how to promote these in plain language where you don't need a law degree to understand what this terminology means. You're using consistent terms and consistent places across different courts. I'd also encourage the judiciary to think about simpler and more intuitive navigational paths. There's something called desire paths into the design space. Okay, what does your user actually intuitively want to do versus what are you asking them to do? And thinking about other features that help pro se litigants new to pacer their first time logging into pacer, leverage it as they pursue and follow along their case. And I think as the CMM effort accelerates its timeline, the courts should not forget to take a page out of Domino's book and ask, besides pizza, what else do pro se litigants want?
[00:23:43] Speaker C: I love that. A pizza tracker for the courts. But beyond that, I'm after this conversation. I'm super invested in how this modernization effort is actually going to go. And beyond that, I'm super excited for what your future research generates in this space as well.
[00:23:57] Speaker B: Oh, thanks Dougie. I really appreciate you being here today. I think it's so important to get this modernization effort on people's radar and to push for the needs of pro se litigants to prioritize. So really appreciate you chatting with me about this today and I look forward to investigating this issue further and of course sharing what I learned here. Thanks so much.
Thank you.
[00:24:17] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
Thanks for listening. If we piqued your interest, please subscribe wherever you get your podcasts. Even better, leave us a rating or share an episode with a friend or on social media.
Here's a sneak preview of what we'll bring you next week.
[00:24:42] Speaker B: Today I'm joined by Andrew Garcia, a fellow student and classmate. He's joined us to discuss a blog post that I wrote, the third in a series about exploring how to increase access to case information to improve access to justice more broadly.
And today we're going to be talking about the importance of judicial transparency, judicial accountability and independence, and ultimately the rule of law and access to justice.
