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Besieged judicial system no longer meets public's needs

Thursday, February 22

  • By: Justice John Broderick
  • Organization: The Concord Monitor (U.S.)

This is an edited excerpt from the State of the Judiciary address given to the Legislature yesterday by Chief Justice John Broderick of the New Hampshire Supreme Court.

I stand here as the chief justice of a judicial system buffeted by change and confronted with both new challenges and new opportunities.

The state courts have been fortunate to have extraordinary judges, masters and staff who are doing all they reasonably can to ensure that the courts remain responsive in this new century. But our state courts are laboring under great strain.

Each year we deal with more than 225,000 cases. Our staff of 596 has stepped up every time I have asked, but there are limits, and we have reached them.

Almost everything around us is changing, often faster than we would like, and the courts need to change, too. We are at a critical crossroads, and you in this great hall will largely decide whether the state courts will be meaningfully open to all our citizens, and whether they will deliver timely justice.

We need to be bold and farsighted in our vision and our actions. Marching in place will no longer allow the justice system to meet its responsibilities, maintain public trust and confidence and fulfill the fundamental promises of our constitution.

Alarming trend

Let me identify the four great challenges we face in the safe, effective, competent and efficient administration of justice.

First, the number of parties who represent themselves is growing, in some areas at an alarming rate.

In marital cases, 70 percent of the time at least one party represents himself or herself. In the Supreme Court, in 35 to 40 percent of all appeals, there is at least one self-represented party. The numbers are close to 85 percent in the district courts and close to 40 percent in the probate courts.

The consequences of the self-representation phenomenon are real. The staff spends more time at the counter and on the phone talking to people who have little or no knowledge of the process or how to use it. It's not their fault - it is just our reality.

The result is delay, a decline in staff morale and a legal community and client base increasingly frustrated by the time it takes to process and forward court orders important to their lives.

We need more staff, especially case managers in the family division, to assist those who are attempting to navigate the court system without the benefit of a lawyer.

To help address the challenge posed by unrepresented parties, we have adopted an ethical rule allowing for the unbundled delivery of legal services. We are one of a handful of states in the country to have done so. Simply put, a client can now pinprick the system and hire a lawyer for discrete tasks in the litigation process. Lawyers add value, and more parties will be able to afford them for limited yet critical assignments.

Alternative dispute resolution will help, as will the focus and talents of the access to justice commission we recently assembled to seek strategic and systemic solutions to alleviate the crush caused by the self-represented litigants. Justice Duggan of the Supreme Court and Chief Judge McAuliffe of the federal court have agreed to co-chair it.

The bar in New Hampshire is among the leaders in the country in providing legal services to the poor, but I am asking it to do even more. Over the last several months I have visited 17 law firms to make a personal plea to lawyers for increased help. My message was warmly received, and I believe they are responding.

If we, the courts, the bar and the Legislature, do not aggressively address the rising tide of self-represented litigants, it may well swamp the administration of justice in the next few years.

Behind the times

The second great challenge we face is technology.

We are making strides, but I fear we are moving too slowly. Many small law firms have better technology than the courts. In 2007, the vast majority of our judges do not have direct access to the internet. We cannot long expect the "speed of light" world to bring its problems to the paper world of the state courts.

We are all well served if the problems that arise in our communities are resolved in public courtrooms with public input. I fear that more and more cases are fleeing to the private justice system behind closed doors - no public record, no public access.

Courts will play a diminished role if this trend continues, as will juries. The open resolution of disputes with public input is a core value of our Constitution. Technological advancements are essential to a viable public justice system, and I hope you will look favorably on our technology request in this year's budget.

The third challenge is for the judicial system to hire and retain good staff. We cannot long expect to get quality candidates for entry-level jobs paying $20,500 a year. If health benefits are cut, I fear that some good people may leave for a higher salary in the private sector and that many good people won't apply.

The demands on the staff are growing, and we need to be certain that we can attract and keep skilled and capable people.

In my visits to all our courthouses, I have met almost all of our staff. They do the hard work of the justice system with too little recognition. They have met every challenge asked of them, but I cannot keep asking without any relief in sight.

Security gap

Finally, court security is a growing concern. Each morning when I drive up Route 93 to Concord, I ask myself, "Will today be the day?"

Our security officers are paid $65 a day, no benefits and no mileage. They provide their own weapon and their own blue blazer. They are extraordinary men and women, but some do not have the experience or the physical agility to be a major factor if an altercation or crisis arises.

Therefore, we fully support the sheriffs who propose to assume system-wide authority for court security. Their proposal will improve training and establish higher and more uniform standards for court security officers.

We hope you will look favorably upon their pending legislation, which is also supported by the chiefs of police and Attorney General Ayotte. In her testimony a few weeks ago before the Senate Judiciary Committee in support of the sheriffs' security bill, the attorney general said, "Now is the time."

We need to reform court security and I hope we do so before tragedy strikes. Those most at risk are litigants and court staff - not the judges.

If we are to meet these great challenges to the administration of justice in New Hampshire, and if the courts are to meet the expectations of the people they serve, I respectfully suggest that we will need big ideas and constructive change.

Small steps and timid progress will be too little, too late. We need your help and your counsel, and we need more resources.

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