Chief Justice Robert J. Lynn addressed the issues of individual docketing, changes in the Family Division and uniformity of court rules and procedures during the 9th Annual Superior Court Judicial Forum.

CHIEF JUSTICE ROBERT J. Lynn, of the NH Superior Court, told a group of attorneys and court staff during the NHBA CLE’s 9th Annual Superior Court Judicial Forum that instituting individual docketing would shift scheduling power from clerks to judges. He said that he expects the new calendaring approach, where a judge will be expected to stay with a case through to its conclusion, will improve the quality of the decisions.

Effective June 1, 2004, NH Superior Court Administrative Order No. 33 requires that each new case be randomly assigned to a judge (or master) in the appropriate jurisdiction, who will stay with that case until it is resolved. "[Individual docketing] creates greater equality among judges," says Justice Lynn, explaining that, in general, under the new system: "Judge A won’t get burdened with a number of complex cases by the luck of the draw, while Judge B draws simpler cases." He adds that the new system will build a sense of "ownership" in cases because a judge will stay with a case until its conclusion and the new system will allow judges to better prepare for cases because cases will no longer be assigned "at the last minute."

Lynn says that the new system also provides increased accountability, allowing the court to more efficiently monitor the productivity of each judge and master. The chief justice pointed out that although he believes the new system will improve the process of justice, the outcome of quality decisions is what is important. "Administering and dispensing justice is not the same as manufacturing widgets." Lynn also discussed the latest developments in the establishment of a permanent Family Division within the court system and the move toward uniformity in court rules and procedures statewide. (A committee of court clerks is seeking input from Bar members on variations in policies, procedures and practices in various superior courts. See page 29.)

The Superior Court Forum CLE program, held on May 21, included as faculty Justice Lynn; the Hon. Patricia C. Coffey, associate justice of the NH Superior Court, Rockingham County; the Hon. Edward J. Fitzgerald, III, associate justice of the NH Superior Court in Merrimack and Grafton counties; and the Hon. Timothy J. Vaughan, associate justice of the NH Superior Court, Coos County. Program co-chair and NHBA President Russell Hilliard, and co-chair Edward M. Kaplan, of Sulloway & Hollis in Concord, moderated the program.

Each judge addressed a different aspect of issues facing the state’s court system. Following the panel discussion, participants were divided into breakout sessions with each justice.

During the panel discussion, Justice Coffey applied the popular "kindergarten rules" to courtroom conduct as a means of discussing professionalism. One of the rules she cited was, "Don’t hit people." Later, a questioner from the audience asked, "What do you do if someone hits you?" She quickly replied, "You ask for sanctions from the judge."

Justice Fitzgerald advocated a wider application of alternative sentencing options that would avoid or reduce prison sentences in certain types of cases. Citing a high rate of recidivism for those sentenced to prison, Fitzgerald said he believes that imprisonment is often neither cost-efficient nor effective for many types of non-violent crimes. Substance abuse also needs to be considered more often in sentencing. "This is the area where we have the greatest difficulty in determining sentencing."

During the 9th Annual Superior Court Judicial Forum, from left to right, Superior Court Justices Timothy J. Vaughan; Edward J. Fitzgerald, III; Patricia C. Coffey; and Chief Justice Robert J. Lynn discussed a wide variety of issues facing the New Hampshire Superior Court system. Edward M. Kaplan, far right, was one of the moderators of the panel, along with Russell F. Hilliard.

"We do things on the cheap sometimes for short-term gains that in the end cost us dearly," explained Fitzgerald, referring to society in general. He says that in many cases a monitored, community-based sentence that includes substance abuse treatment is less costly in the long run and decreases recidivism. Fitzgerald stressed that alternative sentencing should not be used for those convicted of major crimes, including sex offenses involving children. Other considerations include the nature of the crime; nature of the offender; offender’s response to the charges; effect of the offense and sanction; and proportionality. "In my view, determining the appropriate sentence is perhaps a jurist’s hardest decision," said Fitzgerald.

Justice Vaughan, the most recent member of the Superior Court bench, who was appointed last year, talked about the impact of the large number of pro se litigants on the court system. The judge pointed out that 48 percent of all cases in Superior Court have at least one self-represented party. This figure jumps to 70 percent of all the domestic relations cases before the court.

"This is not necessarily a bad thing, just a fact of life," said Vaughan, What makes dealing with pro se cases difficult for the court is the amount of staff time and other resources expended to help litigants through the process; time that is then unavailable to others in the system requiring services.

Vaughan believes that implementing the recommendations of the January 2004report by the NH Supreme Court Task Force on Self Representation would ease some of the challenge of handling these types of cases. Recommendations include: significant expansion of legal services for low-income, pro se litigants; limited representation allowed by professional conduct rules; case managers assigned to every major court in the state to evaluate pro se cases; information access through public computers in courthouses; designation of a statewide alternative dispute resolution coordinator; written protocols regarding pro se litigation for judges and staff; and simplified court rules, forms and procedure where possible. (See www.courts.state.nh.us for "Challenge to Justice" task force report.)

Treating all parties fairly is key to handling cases where a party is represented without a lawyer. "In fairness to the opposing counsel, pro se litigants should have the same rules and procedures apply to them and should not be treated any differently from represented litigants," explains Vaughan, adding that making exceptions for self-represented litigants might reduce over time, the effectiveness of the overall judicial system.

The panel discussion for the program was recorded and will be available on videotape and online. Check NHBA CLE for available offerings.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer