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Bar News - December 17, 2004 Superior Court Chief Lynn: Questions & Answers JUST BEFORE THANKSGIVING, Chief Justice Robert Lynn sat down with Bar News to reflect on the many changes underway in the Superior Court since he was appointed last Jan. 21, 2004. The following is drawn from the interview, and supplemented with information about the superior court from the Family Division Implementation Committee Report. Q: How will the creation of the statewide Family Division affect the Superior Court? Lynn: As the Family Division expands into a county, all of the marital cases—including the existing ones—will be transferred to the Family Division. This is unlike the transition that took place with the pilot project, which only took on the new cases at first. What this means is that in many of the smaller counties, the remaining caseload will not justify a full-time judge. To address that, we will be scheduling judge assignments in groupings of counties—i.e. Coos and Grafton will share two judges, or Carroll and Strafford will share three judges. For some counties it may mean that a superior court judge will preside in the county only every other month. We will have to work it so that the judge will be there frequently enough to ensure speedy trials. Speaking generally, having the Superior Court docket cleared of marital matters will give superior court judges the opportunity to explore some of things we haven’t been able to devote sufficient time to in the past— such as alternative dispute resolution, and judges will be able to concentrate more on the civil litigation. It may also make it easier for our individual judge docketing — one-case, one-judge-model — to work. Q: There will now be a specialized family court. Do you think there is a value in more specialized courts—say, for criminal matters, for business matters? Although family and probate matters may be exceptions, as a general proposition I do not favor having specialized courts or specialized judges. I think there is a benefit to litigants and to the justice system generally of having judges who sit on a variety of cases. I think judges should be well rounded in their approach.  Q: Has your experience as chief justice conformed to your expectations? I have continued to sit on cases two days per week. I am enjoying the administrative work —most of it at least. I don’t think I have been surprised by what I have encountered. I enjoy my regular interactions with Chief Justice Broderick and the Administrative Council. Q: Your priority coming into office was the individualized judge docketing. How’s it working so far? It’s only been in effect since June. All reports so far are that it is an improvement. Judges are more knowledgeable about the cases. Q: How serious is the backlog of transcripts due to the changes in compensation for the court stenographers? [Due to a policy change, official superior court reporters no longer receive extra compensation for transcriptions. They only are paid their salaries and are not paid for working on transcripts after hours.] There is no question that there is a backlog of transcripts for appeals. This is due to a variety of factors. There is the removal of income for the stenographers, which means they are only working on transcripts during business hours. Also, because the Supreme Court is now taking almost all appeals, there is more pressure to obtain transcripts at the beginning of the process. We are starting to experience a backlog of transcripts, not only where the record is taken by a court reporter but also in cases where the record has been taken by a monitor. There are not enough transcriptionists. We are trying to certify more. Q: How is the tight state budget affecting the superior court? We are affected in many of the same ways as are the other branches of government by the budget crunch. We are down in personnel, particularly in Strafford, Merrimack, and Rockingham counties, where we haven’t filled all of our vacancies. This results in delays in scheduling and in getting orders out. Those backlogs are starting to build up. We have a terrific staff that is operating with their backs against the wall and trying to do as much as they can. Q: What are some of the initiatives for improved services in the future? As part of the implementation of the new case management system that will be coming, we are working to make superior court procedures more uniform. There is a superior court committee working on that. We will need that uniformity to be able to put more of those forms online. Also in the technology area, we need to have a better search engine so that people can find the selected superior court decisions that are available online. Also in the works, in conjunction with the National Center for the State Courts, is a weighted caseload study to give us more accurate information on the resources that are needed for particular kinds of cases. This study will help us do a better job of assigning personnel and judges to match the needs of a particular court. Also, down the road, it could be used to evaluate the efficiency of our judges. Q: Some attorneys say there are some major differences in procedures and policies among the various counties. Some say it’s like being on a different planet when they come to some courts. There’s no doubt there is more non-uniformity among the courts than ideally should be the case, but I do think it’s an exaggeration to say that the differences from one superior court to another is like being on a different planet. I’d like to see more uniformity, but I don’t want to go too far. There is a tradeoff between uniformity and not stifling innovation. But I think it’s an exaggeration to say it’s like a different planet. On the horizon, there are indications that the Supreme Court’s Advisory Committee on Rules is going to be looking again at the Rules of Civil Procedure [A draft of the Rules of Civil Procedure for New Hampshire was proposed to the Supreme Court in 1995, but was rejected by the court.] I have been a long-time supporter of having a comprehensive set of rules of procedure generally following the federal model and I am very encouraged to see that the Supreme Court is willing to revisit the Rules of Civil Procedure. I used to teach New Hampshire Practice at the Massachusetts School of Law. One of the things I would always tell my students is that, unlike in states that have comprehensive procedural rules, in New Hampshire there is so much "procedure" that is unwritten that it makes it difficult for new lawyers and takes them longer to get their footings than would be the case if we had more comprehensive rules. That should change. Q: What changes in lawyering have you seen over the years? I have heard some people say that they have seen more nastiness among attorneys in recent years. I have to say that, personally, this has not been my experience. I think that, by and large, New Hampshire lawyers are very professional and provide an excellent level of service to their clients. Q: To what extent should judges play a role in enforcing civility in the court? Some judges seem to be reticent about making an issue of cautioning attorneys in open court. Although judges certainly are more than just "umpires" of the litigation, many judges do have a natural tendency to not want the focus to shift from the merits of the proceedings and onto the behavior of a lawyer. On the other hand when a lawyer has clearly gone over the line, a judge has a duty to take appropriate corrective action, whether this is done in the courtroom or in the judge’s chambers. Q: At a recent Bench-Bar meeting, superior court judges asked for ideas on how to make the mandatory initial structuring conferences more meaningful. What is your thinking on that? In the 12 years I’ve been a judge, we have talked about this many times, and there is a divergence of opinion on it. One view is that it is important to have the attorneys there in person, to get the lawyers to face each other and focus on the case, decide on a discovery schedule, and set a trial date. Doing that in front of a judge makes a more significant commitment to that schedule than filing a piece of paper. The other view is that some people believe it isn’t really necessary to have this kind of meeting in person. And I can understand that point of view as well. The question remains —and I think we will be talking about it again—what can be done to make initial structuring conferences more meaningful? Save the date of Feb. 18, 2005, for a timely CLE program at the NHBA Midyear Membership Meeting that will provide Bar members with an opportunity to hear from—and speak with—leaders of the courts on current developments and issues.
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