Bar Journal - Winter 2005
By: Dan Wise
This issue, "Reinventing Our State Courts," brings together in condensed and, we hope, easily readable form, four recent reports that thoughtfully re-examine the basic assumptions of our state courts' approaches to dispute resolution and call for major changes in how the judicial branch and the legal profession serve the public.
All four reports were issued in 2004, three coming out in the last quarter of the year, the same year the Hon. John T. Broderick, Jr., succeeded the Hon. David A. Brock as Chief Justice of the New Hampshire Supreme Court. The reports' titles are easily confused-"Challenge to Justice," "Vision of Justice," the "Family Law" task force report and the report of the Family Division Implementation Committee.
The first report, issued in January 2004, was the "Challenge to Justice" report by the Task Force on Self-Represented Litigants in New Hampshire Courts, chaired by NH Supreme Court Associate Justice James E. Duggan. The "Vision of Justice" report, issued in September, was the work of the Task Force on Justice System Needs & Priorities. That group, mostly justice system insiders captained by attorney Bruce W. Felmly, succeeded in producing a long-range vision for the future of the courts in less than nine months' time. In November, the legislatively created Task Force on Family Law, a diverse group of 21 lawmakers, professionals and citizens led by New Hampshire Judicial Council Chair Nina Gardner, wrapped up two years of research, consultations with experts, public meetings and deliberations, with a detailed manifesto for changes in the courts' handling of all family matters. And the following month, the Family Division Implementation Committee, a judicial branch effort chaired by New Hampshire Supreme Court Associate Justice Linda S. Dalianis, clocked in with its report, a blueprint for a statewide implementation of a court with specific jurisdiction over all matters involving families and children.
Each report looks at fundamental aspects of the work of the state courts from a different perspective, and each pinpoints many of the same issues and makes overlapping recommendations. Each notes the necessity for giving greater emphasis to mediation and non-adversarial approaches to solving disputes. (Perhaps we are glimpsing the day when "alternative dispute resolution" becomes mainstream in the courts.) Each initiative, in its own way, calls for the court system and the legal community to adapt themselves to the needs of the "customers," instead of the other way around.
There are no "silver bullets" in these reports. Each recognizes that there is no "one-size-fits-all" answer for the challenges that the New Hampshire courts and the legal system will face in the 21st century.
In an interview that precedes the reports, Chief Justice Broderick also discusses another initiative that has already been launched-the Task Force on the Status of the Legal Profession. One of two members of the Supreme Court who went immediately from law practice to the bench, Chief Justice Broderick seeks to reassure attorneys that they need not be afraid that their roles will be erased in the less adversarial future that he sees for the courts; however, he acknowledges the inevitability of change. The task force on the legal profession-co-chaired by retired Supreme Court Associate Justice William Batchelder and Franklin Pierce Law Center Dean John Hutson-will address the legal community's role in constructing a new and better model for our justice system.
Broderick believes both the courts and the legal profession must adapt to make the legal system more accessible and affordable.
"I believe we need to change the model for how legal services are delivered for a large percentage of our population, or lawyers will no longer be affordable for many people and small businesses," said Broderick. When I came to NH in 1972, there were a lot of town and country lawyers and small firms. Everybody seemed to be in the mix, doing a little bit of everything. Large firms may have had a little more specialization, but everybody was in the same game. Over time specialty work has gravitated to the larger firms, the larger firms have become even larger, and soon they will become affiliated with regional, national and international firms. There is a lot of reorganization going on within the profession here, and nationally, to better serve 15 percent of the client base that can afford high powered and high cost legal services. However, 85 percent of the people still need lawyers they can afford-and they will need the local lawyer more than ever."
Justice Broderick continues to think like a business person, even though he has been on the bench for 10 years. He suggests lawyers will have to change the business model for law firms. "I think lawyers are going to redesign their operations so that their overhead and hourly rates are more controllable. This will allow them to devote some of their legal time to client problems at lower rates. The courts also need to help to lower the cost of litigation."
Change can be scary. But clinging to the status quo is an even scarier prospect, Broderick believes. "If you believe that change isn't coming, it will manage you," he says in the interview beginning on page 6.
This issue also contains an uplifting examination of morality as an underpinning to successful legal and economic systems by Charles Sypzyak. A long-time participant in the legal and judicial exchanges between New Hampshire and the Russian oblast of Vologda, Sypzyak has gained fascinating insights from his work with legal and business professionals in Russia. I assure you that you will come away from reading Chuck's article no longer taking for granted the strong moral bedrock upon which New Hampshire's courts and legal practice rests.
Inserted into this issue is the New Hampshire Bar Association's Member Services and Resources Guide. We hope that you will take a moment to leaf through this annual reminder of what the Bar has to offer you, and that you will pull it out and set it aside on your bookshelf or by your telephone. The next time a vexing problem confronts you-or you need help figuring out which task force is which-we hope you will give us a call.
Communications Director, New Hampshire Bar Association