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Keynote Address: New England Law Review Symposium on State Court Funding

Justice John T. Broderick, Jr. Posted in Guest Posts, Informed Opinions, Rule One

University of New Hampshire School of Law Dean John Broderick delivered this keynote address at the New England Law Review’s fall symposium, “Crisis in the Judiciary.” The symposium addressed the deep fiscal challenges faced by American state court systems and the impact of strained budgets on the administration of justice. Experts from various sectors of the legal community considered these issues and worked to highlight viable solutions.

I appreciate the opportunity to speak with all of you this afternoon and I congratulate the law review for hosting this important symposium on state court funding. Meaningful access to justice is the most important issue confronting state courts across this country. There can be little doubt that we now have a state justice system in America that is slowly eroding while at the same time becoming increasingly too expensive for the vast majority of our fellow citizens. These developments, left unchecked, will have real consequences that will go to the very core of the American promise. They should concern us all.

The need for more funding for our state courts is self-evident but, frankly, I do not foresee a day when state courts will have what they need, using the current model, to deliver justice in a time frame and in a manner that will satisfy the critical needs of the population they serve. I know, however, that judicial funding is leaner than at any time in my professional life. Courts today are often caught in the cross hairs of political debate and frequently find themselves telling state legislatures or executive branch officials, including governors, that the constitution, state or federal, prohibits their desired result. To some in positions of political power, appellate judges are perceived to be activists who legislate from the bench. Court budgets are an easy way to send a message – or to even the score.

There is also a perceptible decline in civic knowledge, both in the population at large and in the halls of state legislatures. If I had a dollar for every time the judicial branch was referred to as “just another state agency” in New Hampshire by people who should know better, I could have funded our budget shortfalls myself.

I recall one day stepping into an elevator in the State House in Concord. I rode up two floors with a member of the House Finance Committee. He was a friend of the judicial bench and I told him I appreciated his budget mark for us in a tough economy. He nodded approvingly and credited my testimony just a few days earlier. “Your testimony was very powerful,” he said, “it made a difference to me when you told us you were actually the third branch of government.” And he was our friend. I was speechless.

Earlier this month, there was a proposed constitutional amendment on our New Hampshire ballot that would have given the legislature, the most political branch of government, the power to write court rules and run internal judicial branch administration for a branch of government intended to be insulated from politics. It didn’t get the requisite two-thirds vote but forty-nine percent of the voting public on November 6 thought it was a good idea. That should give all of us pause. In a study by the National Center for State Courts, it was found that sixty-five percent of adults could name the three judges on American Idol but only fifteen percent could name the Chief Justice of the United States.

I am confident that court funding will slowly inch its way back to a higher but still inadequate level in the years ahead. The hole will never really be filled but it won’t be as deep as it is today. As critical as adequate funding is, however, it is not our only challenge. In fact, it may not even be our most important one. Even if we could fund the state court system that’s in place today, it is unlikely that adequate funding for what’s on the ground would be sustainable.

The status quo is at risk everywhere in American life and state courts have no special exemption. The world around us is remaking itself at exponential speed. Even change is changing. State courts can either get with the program or repeat yesterday’s debates on funding and achieve yesterday’s results.

State courts need a new mindset, a broader vision of justice in this technology century and a willingness to do the heavy lifting for a leaner, less staff dependent, more responsive and less costly justice system. We need state courts that are more accessible, affordable, and understandable for all our citizens. Yesterday is not coming back. We need to rescue ourselves because no one with a checkbook will be coming to find us.

Let me explain it this way. If a skilled surgeon from 1850 were brought back to life and placed in a surgical suite at Massachusetts General Hospital, he wouldn’t  have any idea how to perform surgery and he would be astounded that robots can often do a better job than a skilled surgeon. But if you brought a lawyer back to life from 1850 and dropped him in most trial courtrooms in America, he would be right at home. Paper is still king and the process would be familiar, comfortable and largely technology free. Doing the same old thing the same old way hasn’t worked for America’s newspapers or America’s auto industry. Even libraries are at risk. Predictability is good but in this new century, it has its limits. State courts need to pay attention.

In time, unless courts embrace meaningful change, they will grow increasingly irrelevant and the justice needs of most people will be served either by  the private marketplace of ADR, the federal courts or go unaddressed entirely. If we let that happen, public trust and confidence in America’s state courts will decline further. Less funding will follow less confidence. That much I’m sure of.

Although, state courts provide ninety-five percent of all the justice in America’s courts, we are no longer the only game in town. We have competition and we better begin to act like we know that. Unless we embrace and design meaningful change, it will become harder to hire and retain good staff and the best and the brightest may decline opportunities for judicial service. As it is, the hours are long, the pay is inadequate and the process increasingly clogged with delay and the unfocused, unstructured, and sometimes unfounded arguments of the self-represented.

In my state, in more than seventy percent of all divorce cases, one or both sides, are self-represented. In the NH Supreme Court, in thirty-five to forty percent of all appeals, one or both sides is going it alone. Unless we soon begin the arduous and often unpopular process for meaningful change, I predict that by the end of this decade the state courts will be largely the domain of those charged with crime and those who cannot afford counsel.

More funding for yesterday’s model is not the answer. We, all of us, need a more imaginative vision for America’s justice system. It is slowly pricing itself out of the market, even if it were adequately funded. Respectfully, judges and lawyers often seem the most change averse people on the planet so the challenge I advance will not be without its doubters and detractors. But after watching the state justice I have loved these past forty years  lose its capacities, I firmly believe that  change is not only our friend but our imperative.

If we were designing the state court system today from scratch, with full knowledge of the world outside our courtroom windows, what are the odds we would design the exact same system we have today with the exact same paperwork? I think they’re zero. Change at the margins is not the answer. Systemic change is required: change from the front door to the judges bench. Judges and lawyers will need to move beyond their comfort zones, learn new skills, and be open to new ways of doing business or we are at risk of losing a justice system that has been a source of great pride to all of us.

We need to infuse our state courts with technology and alternatives to litigation. The technology gap between the real world and the state courts is ever widening. That is not our good news and will not attract or retain the business community in our state courts. If state courts become largely irrelevant to commerce, they will lose powerful advocates before state legislatures and, in time, our funding will decline further. The growing gap will not be attractive to the tech savvy and tech obsessed generations to follow. It will be a strange experience for them to leave the “instant” world of everyday life to enter a justice system that is woefully behind the times. They will create a parallel universe for justice that mirrors their expectations.

We need to accept that jury trials are not likely to return in great number unless state courts insist that proportionality be returned to the litigation equation. Trial lawyers are being replaced by litigators and many massive e-discovery requests have often substituted for focused case analysis and trial skills. The expanded mission to find the “smoking gun” through expansive e-discovery is crippling the process. Courts need to address it if public courtrooms are to retain their constitutional function. During my years at the Bar, I have watched trial by jury be replaced with trial by attrition. We need to reverse this destructive trend or be willing to pay the price. Most of the heavy lifting in the American justice system is done by laymen called jurors. It’s not good news that we are seeing fewer of them.

We also need to provide off ramps to those who use our courts. Mediation, arbitration, and neutral case evaluation have their roles. When I was Chief Justice, we created the first ever Office of Mediation and Arbitration under the judicial branch umbrella. It was not a silver bullet but it added real value and provided timely and cost effective closure on thousands of cases.

For the state justice system to work, lawyers need to find new ways to bill for their services or new ways to reduce overhead. The billable hour is crippling the process, making justice less accessible and burning out a new generation of lawyers. When I was Chief Justice, I often spoke to groups of lawyers – both in New Hampshire and around the country. I would ask them two simple questions: could you afford to hire yourself? And, if so, for how long? They almost always smiled back. If lawyers can’t afford themselves, the problem speaks for itself. Lawyers need to find ways to bill for their value not just their time. It will not be easy but it is no less necessary.

If lawyers don’t  return the legal profession to its “profession ” roots and move away from the ” law as business model” it will burn out the next generation of lawyers and the best and the brightest may apply their talents elsewhere. Everyone loses if we let that happen.

I firmly believe that there is a huge market of unmet legal needs probably worth hundreds of million dollars a year in revenue to the legal profession if it could structure itself, its costs, its expectations, and its services differently. Most people can’t afford $250 – 500 an hour and are increasingly suspicious of the model. If it continues that the profession of law can’t make its services available to the majority of the American people I would propose that we license “paralegal practitioners” who would be subject to the same ethical rules as lawyers, have the same trust accounting obligations and similar but more focused CLE obligations. But they could practice without the supervision of a lawyer and they could make a very decent living billing $60 to $70 an hour. They would be licensed to practice in discrete areas like landlord tenant law, social security disability claims, and uncontested low asset divorces to name a few. Not my first choice but something we need to seriously consider. This medical model is something we need to examine. It can’t be that no solution exists to improve access to justice and specially licensed and trained paralegals will prove more valuable to the greater good than a self-represented party going it alone.

If lawyers accepted that their real value today is not in dispensing legal information to clients but in selling their analytical ability and their judgment they would more joyously embrace value billing. You’ll make more on some cases and less on others. But your accounts receivable would drop, your income would likely rise, and your professional pride would increase. Access to justice would improve, too. If ethical rules need to be amended to make access to justice more affordable and more available then we should not turn away from the effort to do so.

Maybe every case currently in the system doesn’t need to be there at all or at least in the first instance. We also need to decide what can be done remotely from the courthouse by phone, video, or other emerging technology. For example, hearings without witnesses could be done remotely, as could many criminal arraignments. We need to prepare for the virtual world the next generation of court users will expect because it may be the only world they can afford.

Our product, as currently fabricated, takes too long and costs too much. That’s the reality we find ourselves in. We need to rid ourselves of paper and the incredible time it takes to process it. We also need more and better interactive judicial branch web sites and off-site and on-site self-help centers. We need simpler forms, fewer rules, less needless process, and a more understandable system. We need individual dockets, and judges willing to practice “neutral engagement” with the self-represented. We also need to be bold enough to have specialized dockets for certain types of cases.

When I was leading the courts in my state we created a business court docket, drug court dockets, and several mental health court dockets. We put certain cases on accelerated tracks and limited discovery in some cases where the amount at stake couldn’t justify the expense. We also implemented pro active discovery where lawyers are required to exchange documents, names, and other information that support their claims or defenses without a single word processor churning out requests. We also adopted and formalized public opportunities for judicial evaluation. Five years ago and contrary to the wishes of many judges, we laid off our incredible stenographers over a three year period because we could no longer afford them or justify them in the digital age. We replaced them with digital recording devices. Despite the claims of some that we would be getting incomplete records that did not turn out to be the case. Life has gone on and justice is still meted out. Change is never easy but it has never been more critical.

To put my urgent plea for responsible change in a greater context and to underscore the incredible importance of our system of justice and our obligations to safeguard and improve it in unprecedented times, let me close with a story.

A few winters ago, I flew very early one morning to attend a memorial service on Capitol Hill for the only Holocaust survivor to serve in the House of Representatives. He personified personal bravery and deep conviction. He knew what the tyranny of a few could unleash.

When I arrived at Reagan that morning, there were almost no cabs and almost no one looking for one. So my cab driver and I were happy to have found one another. I don’t know if you talk to cab drivers but I always do. They have great stories and I am sure that at least some of them are true.

My cab driver that frigid morning spoke with a very thick accent although he told me proudly that he had been in the United States for twenty-five years. “I have two daughters,” he said, “and they have a much better life here than they would have had in the Balkans. I love the American people.”

As we crossed the Potomac, he told me he had a granddaughter, too. At the first stoplight, he handed me her picture. “She is just as adorable as you told me,” I said with a knowing grin, “I have granddaughters myself.“ We had found common ground.

As we turned onto Pennsylvania Avenue with the Capitol in the distance, my cab driver asked me what I did for a living. “I’m a judge,” I said, “an appellate judge.” I held my breath not knowing how he might respond. With a rising voice filled with admiration he exclaimed “You have the most important job in our entire government.” “Why do you think that?” I asked.  “Because without people like you, little people like me would never know if they were really safe, really equal, or really free.”

When we got to the Capitol, he stopped to let me out. After I paid the fair, he reached his right arm over the seat between us to shake my hand. “It’s been a real honor to have you in my cab this morning, a real honor,” he told me with a broad and warm smile.

As I walked toward the Capitol facing headlong into a frigid wind, I was struck by my cab driver’s simple wisdom but mostly by his trust that courts would be there to protect him and others just like him when they needed access to justice. That’s our job. Change will ensure that we can keep his trust, no other option is available.