Bar News - September 8, 2006
Required Reading: Citizens Commission Affirms Role of Lawyers
By: Richard B. McNamara
On June 1 of this year, a group called the Citizens Commission on the
State Courts, appointed by the New Hampshire Supreme Court but comprised mostly of non-lawyers and chaired by two community leaders without ties to the legal community, released an impressive report offering important recommendations on the future of our legal system.
Richard B. McNamara
The report, and in particular, the dedicated and thoughtful work that went into it, did not get the publicity it deserved, but I believe that the Supreme Court that commissioned it is paying attention to its findings. New Hampshire lawyers should read the report and draw their own conclusions about its value. And, in considering the specifics of the Citizens Commission’s work, I urge you not to overlook the significance of its underlying message: our justice system is important, it is working well, and lawyers play a central role in its success.
Some of the Commission’s recommendations echo ideas advanced by the legal profession for years: the judicial branch should make better use of video and teleconferencing to reduce physical presence at hearings; the Family Division should be expanded statewide; and the judicial branch should continue to promote all reasonable forms of alternative dispute resolution, particularly in domestic relations cases.
The Commission did not shrink from controversial proposals regarding criminal justice. It suggested that pretrial diversion programs, an alternative to incarceration, be uniformly available throughout the state. It urged the judiciary to consider using a problem-solving justice model in dealing with mental health issues, certain drug offenses, and other family legal problems, consistent with public safety.
Perhaps most interesting is Recommendation No. 6, which states that: “Recognizing the importance of protecting the rights of civil litigants in certain legal disputes, the commission recommends that New Hampshire examine the expansion of legal representation to civil litigants unable to afford counsel and study the implication of a civil Gideon.” In Gideon v. Wainwright, the US Supreme Court held that a person should not be forced to trial in a felony criminal case without the right to legal counsel. This legal principle has long been accepted in New Hampshire; indeed, the New Hampshire Constitution was amended in 1966 to provide that a person who cannot afford an attorney, and who faces any incarceration at all, must be provided with one. Thus, the Report resoundingly affirms the value of lawyers in a free society.
While concluding that the ultimate ideal is to have full representation by an attorney, the report also notes that more and more individuals proceed without counsel, or pro se, in many cases because of expense. The Commission suggested increased education for pro se litigants and expanding a case manager system to interview litigants and facilitate their proceedings, providing procedural guidance and support if a litigant chooses to precede pro se.
These particular proposals raise many questions, which merit full discussion. As the Commission suggests, we as a society need to ask the question of just how expensive it would be to provide legal services to those who truly cannot afford them. Apart from society’s interest in just results, that cost must be weighed against the costs involved when pro se litigants invoke expensive judicial mechanisms they may not understand. The report notes, “the increase in the number of untrained litigants also undermines the smooth functioning of the courts by introducing delays and inefficiencies, adding further to legal costs for all.”
As a society, we need to address the question of how we should deal with individuals who can afford counsel, but choose to proceed pro se. If individuals decide to remodel their kitchens themselves, and do a poor job, only they bear the consequences; but pro se litigants, who often do not understand litigation, frequently, through lack of understanding, in the words of the report, create “delays and inefficiencies,” thus imposing unnecessary costs on their opponents and on society. If litigation becomes easier to pursue without counsel, will the reduction in economic barriers to entry encourage frivolous ligitation? And would an increase in litigation have a positive or negative impact on the economic life of the State?
There are no easy answers to these questions. These and other many questions raised by the report will doubtless be debated in the months to come. But the Citizens’ Commission report boldly affirms the vitality of our system. Its unstated premise is the recognition that while our justice system is not perfect, it provides an essential service for our citizens, and it is a system that is ultimately responsive to those citizens.
As you read the Commission’s report and consider your own views on its findings, I hope you will come away heartened and energized, as I was, by the vote of confidence that it represents. More than 100 well-meaning citizens, given the time and the motivation to closely examine our judicial system, endorsed the central role lawyers play in ensuring that our judicial system provides a fair and credible forum for solving disputes, and in helping to provide justice for all.
Read the complete report at http://www.courts.state.nh.us/press/ccpressrelease.pdf.
Richard B. McNamara is president of the New Hampshire Bar Association for the 2006-07 Association year. He is a member of the law firm of Wiggin & Nourie in Manchester.