THE NH SUPREME Court's recent announcement that it will begin accepting all direct appeals from the state's trial courts was the hot topic at the Supreme Court Forum CLE at the NHBA Midyear Meeting.

Full text of the court's announcement appears on page 20.

Faced with an exploding caseload, the Supreme Court in 1979 began utilizing discretionary review, in which the justices screen requests for appeals and decide which to accept based on established criteria.

But the court has "virtually eliminated the backlog" that existed - the pending caseload is the lowest it's been since 1989, Clerk Eileen Fox said at the Supreme Court Forum. So the court decided to reinstate the process of accepting all direct appeals from the trial courts, thus creating "broader access to New Hampshire's only appeals court," the court's announcement reads.

The change pertains only to direct appeals brought under Supreme Court Rule 7, which covers lower court decisions on the merits of a case. Appeals brought under other rules will continue to be subject to a discretionary review.

Attendees of the Supreme Court Forum responded favorably to the new case acceptance policy, but also had many questions about its implementation. The faculty panel of Fox and Supreme Court Associate Justices John T. Broderick, Jr., James E. Duggan and Joseph P. Nadeau said that they are still working on the fine points of the change and have not yet set a definite date for its implementation. When this process is instituted, Fox said, the court rules governing it will likely be adopted on a temporary basis and modified as necessary before being made permanent.

The court decided to bring back the process of accepting all direct appeals to give litigants "a better opportunity to persuade the court," said Justice Duggan. Under the discretionary process, the court does not conduct an intensive review of the record to determine whether an appeal will be heard. "We look at the notice of appeal form and figure out the issues and if the appeal has merit. Under the new process, we will have better information based on the full record. It will be a much more reliable process and creates more opportunity for litigants to persuade us," said Duggan.

"Under the old process, there was some doubt regarding the thought that went into decisions that were summarily affirmed," Justice Broderick added. "Under the new process, cases won't be summarily affirmed before the case is briefed and the transcript prepared."

One area of particular concern to attendees was the possibility of frivolous appeals being brought simply as delay tactics - especially in family law cases. Under the new process of appeals being automatically accepted, litigants will be able to delay final judgment for the opposing side by bringing frivolous appeals. In family law cases, for example, child custody or other issues may be contested and an appeal could delay a final ruling, continuing one parent's custody of a child. "People could file appeals to buy a year. I think you'll see a lot more frivolous marital appeals to buy time," said attorney Chuck Douglas.

"People could use appeals to stall the process in marital cases," agreed attorney David Nixon.

The justices admitted that the new case acceptance policy will extend the process for litigants; frivolous appeals will not be summarily disposed of as they were before, they said, and a case cannot be heard until its transcript is prepared. Fox said that the court is considering a process by which after an appellant's brief is filed, the opposition will have a chance to file a motion to dismiss in lieu of a brief "if the appeal doesn't hold water." Justice Nadeau also pointed out that the costs of preparing the transcript and bringing an appeal may discourage frivolous appeals.

But that cost may also be prohibitive for pro se litigants wanting to file appeals. According to Duggan, in 2002, the court received 225 pro se notices of appeal. There is some concern that transcript fees may prevent pro se litigants from enjoying equal access to the appeals process.

The justices said that the new process may not be perfect, but will serve the greater good of making the appeals process generally more open and accessible.

Fox and the justices said that because the new case acceptance process will double their workload, the court will have to be stricter with deadlines and continuances and will likely limit the number of pages for briefs. Also to streamline the process, oral arguments will be placed on one of three tracks - hearing by the full court or by a three-judge panel or consideration solely of the briefs.

"The down side is that we won't be as user-friendly because of the greater volume of work, but the court is very excited about this change," said Broderick.

In addition to the new appeals process, the Supreme Court panel also briefly discussed a proposal to restructure the Professional Conduct Committee; new rules allowing for admission by motion and requiring attorneys to disclose a lack of a minimum amount of malpractice insurance; and tips for effective appellate advocacy.

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