Who doesn’t love a great flowchart?! We at the A2J Lab certainly do. A few weeks ago, I posted about service of process in guardianship cases, illustrating via a (frankly overwhelming) diagram just how complicated the process is in the Boston area. Properly serving potentially interested parties is an important step in the petition process that is often glossed over. In fact, many petitioners often assume that filing the petition is all they have to do before showing up to court. But this disregards the essential notice that needs to be communicated in the meantime. When a legal issue is both overlooked and complex, we consider it ripe for innovation and evaluation in the name of access to justice.
And, in these contexts, it’s important to think about why certain practices have been adopted and persist. We hope that our civil procedure reflects core principles at every step. Whether it’s judicial neutrality or due process, courts would seem to have a vested interest in upholding those values. So what does the court–and we for that matter–care about with respect to notice in guardianship cases? Simply stated, justice requires that anyone who might want to contest the petition and who would reasonably want to voice their concerns can learn about the case. Fair enough. How, then, does something so self-evident and simple become so complicated? Return to the flowcharts. Is your head spinning as you try to figure out what the appropriate method of service is?!
The notice process depends heavily a few factors: 1) who the interested parties are; 2) if the petitioner knows where they live; and 3) if the interested parties will consent to the guardianship. Even then, it’s not a matter of just signing a form; a notary almost always must attest to the signature. Sometimes the petitioner has to hire a sheriff to serve the papers. In other situations, the petitioner must purchase an ad in a print newspaper. (Remember those?)
Let’s take that route: publication. If notifying others about the petition advance justice during the guardianship petition, is this burdensome requirement likely to further that value? The newspaper only has to circulate generally where the petitioner lives, not where the interested party does (because we don’t know where or who s/he is). Furthermore, who reads the Legal Notices section of a newspaper unless they have a specific reason to do so?
Perhaps unsurprisingly, not all states have adopted this requirement. For example, Alaska has been particularly innovative and creative with service of process. Notice can now be published online instead of in a newspaper, eliminating some financial and procedural burdens. In fact in many states, including Massachusetts, petitioners often come into the courthouse with pictures of the notice form sent to the interested party via Facebook Messenger. Thanks to the application’s read receipt function, everyone can verify (with much more certainty) that the recipient saw the citation or summons. Users are perplexed–why wouldn’t the court consider this successful service? If the ultimate goal is notification, why rely on antiquated communication methods that inarguably cannot lead to verified receipt by the interested party? Moreover, rules like those in Alaska are much more accessible to self-represented litigants. A civil procedure that aligns more with modern experiences and capabilities is a goal we should pursue.
Flowcharts like the ones featured on this blog are fun (in some circles!) to generate. But they are frustrating reminders of the yawning gap between the theory of access to justice and litigants’ lived experiences. We at the A2J Lab believe that improving access demands evaluating whether that gap is driven by unnecessary complications. To the extent that we can’t change those burdens overnight, maybe we can come up with new, testable solutions that empower litigants, whether represented or not. Doing so will safeguard the integrity of the justice system and its legitimacy in users’ eyes. If, through our guardianship study, we can improve successful service of process rates with self-help materials, we will have made important strides toward cutting through the procedural thicket. If not, it might be time to push for deeper reform efforts that make these dense diagrams happily obsolete.