Bar Journal - Winter 2005
A Conversation with the Chief Justice
Bar Journal: Chief Justice Broderick, in the past year, the judicial branch has launched several studies looking at systemic issues in the courts. Much of this issue of the Bar Journal is devoted to presenting a condensed version of these reports in a single, accessible place. While some of these initiatives pre-dated the start of your tenure one year ago, it seems that in your first year, you have put the emphasis on the need for significant updating of the court system and the practice of law. What makes you believe the need for change is so urgent?
Broderick: The single most pressing issue the courts confront is dealing with the problems of NH's families. And more generically, dealing with access to the court system -how the courts process cases, how they deal with people as they come in the front door, and how they deal with the growing number of pro se litigants, and the increasing inability of people to afford lawyers. The Task Force on Justice System Needs and Priorities, chaired by attorney Bruce Felmly, produced the "Vision of Justice" report (see page 12) which identified many areas for potential improvement in process and procedure. That group, composed principally of those most familiar with the court system, worked within a rapid timetable of nine months to identify those areas and make concrete recommendations.
I now am actively working on assembling a more public committee to take the Vision of Justice report and the Task Force on Family Law report and the Pro Se Task Force report, and to a lesser extent, the Family Division Implementation Committee report-which pretty much stands on its own-and take up to eighteen months to "crunch the numbers" and come back with a well-thought out list of priorities we should pursue. The goal, as I see it, is to make the courts more compatible with the landscape of this new century and to get the valuable perspective of consumers of legal services.
Our court system was ingeniously constructed as a place to go when both sides had lawyers, a fair amount of money, and time to wait for a decision. The world we are in today is very different. As you know, in a very high percentage of cases, at least one party is self-represented. Dealing with self-represented litigants slows the process down; it creates more work for judges and far more work for the staff. And these people are entering a system they don't understand, and are often leaving a system they don't understand any better. This diminishes public confidence. So we need to redesign the court machinery from the front door to the judge's bench to make the system more efficient and user-friendly. This will help both clients and lawyers. I fear that we sometimes provide more process than is necessary.
We also, quite urgently in my view, need to integrate alternative dispute resolution into the machinery of our courts. The probate court has introduced paid mediation pretty successfully. We are now looking at what they have done right and learning from it. My goal is to start mediation in the largest district courts in small claims matters with the ultimate goal to make ADR available throughout the system, and to establish a statewide office under the judicial umbrella for alternative dispute resolution and to have a designated individual in charge.
Bar Journal: Would this ADR model rely more on paid rather than volunteer mediators?
Broderick: It would include a variety of approaches. You can't do it all with volunteerism. Despite the extraordinary efforts of volunteer mediators under the Rule 170 program, it's not available in every county. And as good as a volunteer system is, I don't think you achieve excellence through volunteerism alone. We are filling a need, thanks to NH lawyers; we are filling a huge need, but I would like to get a system where there is some mediation/arbitration in the state court that is free, some for a flat fee. At the higher end, we may create a mini-version of the American Arbitration Association (AAA). Lawyers would register with this statewide ADR office for a nominal fee, and the statewide office would serve as a clearinghouse for litigants seeking help, and the parties would select their mediators, and make their own bargains. The mediators/arbitrators would handle their own billing. I think we could develop such a system in the state court system that would offer an option to litigants who would not necessarily have to turn to the AAA. In many instances the AAA is very expensive.
We need to do everything we can to accommodate the needs of the people who use the courts. And we need to wring as much cost out of that process as we can.
Bar Journal: You talk about mediation, and about making the process more efficient for the users. How do you think the lawyer's role should change with these initiatives going forward?
Broderick: 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. 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.
Meanwhile, the pressures on all lawyers have become more intense. The cost of doing business has risen substantially; technology is our friend, but it is also an expense.
Ultimately 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.
In my visits to the various courts, I see that they almost all have libraries, and some of them are quite good. I ask myself, with all of the technology we have, why is that? It almost looks like the 1955 model. Law firms, I think have the same problem. Why does each of them have to be their own technology center? Aren't there costs that could be shared? I could see in the future, individual lawyers and small firms, aggregating in buildings with 25 offices that would have common reception areas, common technology, and common billing operations. I think lawyers need to start pooling and sharing in a fundamental way so that they can lower costs. As I said, I think the courts have to make their jobs easier and less expensive.
We have to take a look at the ethics of unbundling legal services so that lawyers can reach out with some assurance to get involved in a pro se case, drafting a motion for summary judgment, or attending a single hearing. We need to figure out how to accommodate legal needs that are increasingly unmet. The courts and the profession can't do it with the same models we have historically used.
I am sure that the practice of law feels and looks quite different from when I left it in 1995. The pressures are greater on lawyers than ever before-competing with people not just across town, but across the state, and beyond.
I believe that when we look back at the legal landscape 15 years from now, we will barely recognize today. It would be silly to think that with technology moving at the speed of light, that the practice of law and the court system will remain largely as they are. We need to do all we can to design the future.
Bar Journal: One of the things you've talked about is the necessity for the system to compete with the private sector in resolving disputes. Can you elaborate on that?
Broderick: There is a private justice system being constructed in this country. People can hire mediators, go to private conference rooms, close the door and have their disputes resolved. There is no appeal, but there is some efficiency, obviously, and some predictability. People have a right to pursue this option, and in many cases it may make perfect sense to do so. My concern is that many people are choosing that private option because they see the courts, particularly the state courts, as not a viable alternative. That's our fault. I want us to be competitive so that people have a real choice. Arbitration can be very expensive. The court system might be able to offer its own version of arbitration or mediation for less money. I am confident we can.
With the expansion of the family division over the next few years and the elimination of the marital docket in the superior court, we may be able to provide some specialized dockets-business courts, for example, as they do in some other states, Massachusetts being one of them. We should be able to demonstrate to the private sector that the state courts can handle their problems in a timely and cost effective way before they consider the private justice system.
I think it is in the public interest that disputes that arise in our communities be resolved in a public forum with public input either through juries or less directly through judges. When I say the courts need to be competitive, I mean we need to be competitive in the sense of providing a meaningful alternative to private justice.
Bar Journal: The Vision of Justice report suggests that the court system hasn't kept up with changes in society. Why hasn't the court system changed more in recent years?
Broderick: I think the court system has done a great job of doing things the way it has always done them. There is a tendency to be so caught up in the day-to-day, to be so busy with the present that it is hard to sit down and ask, "What is tomorrow going to look like? We have also operated under some very tight budgets.
There is a confluence of events right now in favor of change. The leadership of the court system is new. Superior Court Chief Justice Lynn is very open to change and open to new ideas, District Court Administrative (and Family Division Administrative Judge) Edwin Kelly and Probate Court Administrative Judge John Maher are as well. And I think that the vast majority of judges and masters have embraced the need for change in the system, too. At the same time, legislative leadership and Governor Lynch have been very interested in a new dialogue.
One area that has been an obstacle for us has been the state of our technology. In recent years the legislature has been pretty generous in that area. So we are advancing. But to be truly responsive to the expectations of the world we serve, we need to advance much further. I am confident, however, that we are making progress and that greater progress is possible.
Bar Journal: One area of modernization that has been discussed recently is in court procedure. The Rules Committee has announced it is going to consider the proposal rejected 10 years ago, to adopt a set of Rules of Civil Procedure.
Broderick: In 1995, I believe, a comprehensive proposal, [authored by a committee chaired by Martin Gross] was turned down after seven years of study. Marty Gross and his Committee made an enormous contribution which ultimately was not accepted. I am sure he and his colleagues were disappointed. The concern back then was that the court practice in NH had always had a different feel; it had always been less focused on process and procedure, and more focused on substantive decision-making-on getting to the heart of the case. And the proposed rules in 1995 seemed like a serious departure that would take us down a road where we would put more trap doors in the way. The Rules Committee under the leadership of Justice Dalianis is taking a fresh look at that proposal again, with a different mindset, and I think, with a changed culture. There are more young lawyers in the state of NH than there were in 1995, and these newer lawyers are comfortable with those rules [modeled on the federal rules of civil procedure] and how to work with them. Practice is becoming multijurisdictional, and we have to recognize that. It will be increasingly difficult for New Hampshire to be integrated into a new mosaic with rules fashioned for a more local practice.
When I was in private practice, I had great respect for the state court system because there seemed to be a fair amount of play in the joints-there was an understanding that the merits of the matter were more important than procedural niceties. The rules governing practice in state court recognized that which proved beneficial to the lawyers and their clients. It was also helpful to the self-represented. I am very empathetic to litigants and the pressures they are under, and the courts should not create artificial barriers to meaningful case resolution. The proposed new rules will get a public hearing at some point so the Bar and the public will have every opportunity to give us their input. I do not want the rules to make an already expensive process more expensive.
Bar Journal: Is it that you don't want to have the situation that some believe exists in the federal courts, where so many matters are decided through motions? Is that part of the fear of becoming too much of a rules-based system?
Broderick: I think the rules should be a means to an end and not become an end in themselves. We do not think the rules should be seen as a barrier to obtaining justice but they should meaningfully streamline and direct the process in a way that everyone can better understand it. I do not want the rules of court to become a separate area of litigation or a cottage industry unto themselves. I think the state courts are more than capable, with the help of the public and the bar, to craft a new set of rules consistent with the fair administration of justice.
Bar Journal: Getting personal for a moment, how did you decide to become a lawyer, and once you started practice, who became your role models?
Broderick: It was easy for me. I decided to become a lawyer in the seventh grade. I became absolutely certain, not just that I wanted to be a lawyer, but I wanted to be a trial lawyer, and I never looked back. I credit Perry Mason for making trial law seem fascinating.
When I came to NH in 1972, I started with Devine Millimet. There were so many great lawyers in that law firm -Joe Millimet, Bart Branch, Don Dufresne, Mike McDonough and Matt Reynolds, from whom I learned. I was mentored by Mike and Matt and they taught me what was expected of a trial lawyer. And I admired many other lawyers including Joe Kerrigan, Charlie Dunn, Bob Chiesa, Phil Peters and Jim Kalled. They seemed to have it together, and they seemed very competent, but very at ease. They had a magical combination of skills and attitudes and they were very kind to young lawyers. It seems to me that there were a lot of giants in the legal profession when I was starting out. I respected those people, and they had the practice of law in proper proportion. I was struck by the fact that they could be trying cases with one another and in the middle of a contentious day, they could go to lunch together-that image remains with me. I am not sure this is as true today as it was then but I hope that tradition lives on.
Bar Journal: Did you sense that this climate was changing before you were appointed to the bench?
Broderick: Yes. There were increasing pressures on lawyers. There was less time to reflect. You know, technology is wonderful, but it often requires an answer before you have one. And you are competing not just with the person down the street, but with the rest of the state and beyond. A lot of the work that used to come to smaller firms may not go there any more. And the cost of having a competent staff has increased. The challenges I faced as a lawyer in 1995 are far greater today.
In 1989, when we formed Merrill & Broderick [Broderick's law partner was Stephen Merrill, who was elected governor in 1992], we paid 100 percent of everyone's health insurance. I am not sure that small or even large firms can afford to do that anymore. So there are a lot of economic pressures, a lot of professional pressures on lawyers.
Sadly, in many ways, from the outside, the profession has lost some of its luster.
Lawyers are now subject to the Consumer Protection Act. It is a consumer world and lawyers are often seen as fungible commodities rather than independent professionals. Lawyers have not always helped themselves. The profession has too willingly become commercialized. But make no mistake, the profession of law is one I still greatly admire. Lawyers, as a group, provide exceptional service to our citizens. But like any profession, there is always room for improvement.
Bar Journal: When you were Bar president, professionalism was a theme of your presidency. What is you opinion of the state of lawyer professionalism today?
Broderick: We have formed a commission to study the status of the legal profession in New Hampshire. I greatly respect the profession of law, and lawyers are some of the best people I have ever known. I am empathetic to the issues they are confronting. The Supreme Court wants to get a fair picture of where we are with the profession and its challenges. Then we can think about how best to improve the picture with the full participation of the profession itself.
Another area that I am interested in is: what help do we offer for impaired lawyers through Lawyers Concerned for Lawyers and the Lawyers Assistance Committee? I am sure that the volunteers on those important committees could use help. The incidence of alcohol and drug abuse and depression among lawyers is almost twice the national average as for the general population. We need to deal with that because it has many consequences for the individuals who are afflicted, their families, their clients, and for our system. I am persuaded we need to do more.
Bar Journal: What do you hope a commission on the status of the legal profession can accomplish?
Broderick: More and more people can't afford lawyers. I believe that a lot of lawyers are working harder for less financial reward and that there is less job satisfaction than there used to be. I think a thoughtful look should be taken at where the profession is today including the ethical, financial and other pressures it faces. It is also important to examine future trends as best we can discern them. The goal is corrective change where needed.
The profession has often grown in immediate reaction to what is in front of it. What I'd like to do is obtain an aerial shot of where the legal profession appears to be headed so that we can have a more in-depth discussion and think about what changes we need to make in the way the profession and the courts have historically done their work. Reflection is everyone's friend.
Bar Journal: Would such an examination include continuation of the unified bar?
Broderick: I suppose that would be among the issues we would consider - although the unified bar is not the motivating factor by any means. We ought to be asking: "How can the organized bar be increasingly relevant in the lives of a changing profession?" I think all of us-the courts and the bar -are stuck in a model that used to be on target. But the world has changed, and many institutions are slow to catch up. I am sensitive to the idea that you can't do things the same way for the next decade and seriously think you are meeting the needs out there -that applies to the courts, the bar, and to individual lawyers. I think it's time to have a discussion about all of this, and that we have this discussion in a non-threatening, non-judgmental way. I think there is much we could learn - and later apply.
Bar Journal: Are there any models for a study like this conducted elsewhere in the country?
Broderick: I don't have any specific study in mind although I know similar efforts have been made. I am hoping that, because New Hampshire is such a small place, we will have an opportunity to be a role model as opposed to copying someone else's approach. I do admire the lawyers in this state, and I think there is a lot of good faith and good will here so that we can have the kind of discussion that might be more difficult in a larger state.
Bar Journal: Does it seem to you that lawyers in NH, and elsewhere, are driving themselves to a place that will not position them for the long haul?
Broderick: I believe that 15 years from now, there will be many more regional law firms. Now, if you are a truly large firm, you have to have a national presence, and the next jump will be international. You don't have corner drugstores anymore-national chains dominate. It seems to be that the legal world is headed that way. We don't know what that means for the people who need lawyers or even to the profession itself, but I do know it means change. I understand in a way that I didn't before I had this job, that you have to identify and manage change as best you can. If you pretend change isn't coming, it will manage you. That is true not only for the judicial system but the practice of law, as well.
I sent a small lapel pin (800 of them) out to every judge, master and employee of the judicial branch. Everyone in the system has them now, from the newest clerk to the most senior judge. It's a visible sign that we are in this together, and we are all doing important work. I don't believe that one level of court is more important than any other, no judge or staff member is more important than another. I want to make sure that our staff is well-treated and feels well-treated. Life experience has taught me that if you treat people well, the people who do the hard work, you will be rewarded and the people you serve will be rewarded, too. The staff in our system is in need of some attention and I want to connect with them. I have visited every court site in New Hampshire over the last year and have had the privilege to meet almost every staff member personally.
I have set up a staff advisory committee to the Chief Justice and we had our first meeting in late February. I have much to learn. The committee will run its own agenda and I will meet with them three times a year to find out what's on their minds. It will give us an opportunity for informal two-way communications. I am very proud of the court staff and am anxious to get to know them better.
I also want to deal with the bar in a better way; I want to have a dialogue with the bar, more frequently and more informally. I also want to have a dialogue with people outside the system. I have given it some thought but I don't know yet how to do it; perhaps set up some sort of public advisory committee to the chief justice. I would love to get a group of citizens together who have had some experience in the courts to meet with me twice a year. So they can share their thoughts on how the courts are doing.
Bar Journal: How do you find a group of people who can speak on the courts intelligently without attracting just professional gadflies or court critics?
Broderick: I don't know. But I do know that the court system does not belong to me, it does not belong to the lawyers, it belongs to the people of NH. Sadly, an increasing number of our citizens do not have meaningful access to the courts. I think it is important for the court system to find a way to deal with the public's concerns. I am trying to find a way to do that. Perhaps the Citizens Committee on Justice in the 21st Century is a good place to begin.
Bar Journal: You appear to have made progress at improving the court's relations with the legislature.
Broderick: My colleagues have worked diligently to do that, particularly Justice Duggan and Justice Nadeau. We have been meeting informally for months now with legislative leaders, talking about issues involving the courts and the legislature, and more specifically about our budget. We hope in this fiscal cycle to have a totally new relationship with the legislature on our budget. As great as the needs are in our system, this is not an easy fiscal time for the state of NH. So rather than asking for a 16 percent increase, we are going to the legislature with a very modest budget, an expense maintenance budget. We are asking for the money we need to do what we are doing now, with the people we are using now, only slightly increased because costs have gone up. We are not asking the legislature for money for new positions or programs. We will also present a schedule of priorities we have identified internally with a dollar amount attached to each. This will help the legislature see our vision without an immediate request to fund it. Progress takes time. I want this court more engaged and more involved with the other branches of state government, whenever appropriate.
We are trying to develop a new level of trust with the legislature. It will take awhile but we are committed to it and I think there are many legislators across the river who would like to see it happen too. Governor Lynch has also demonstrated a keen interest in the needs of the courts. We look forward to working with him as well. So much needs to be done.
Bar Journal: Thank you.