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Bar News - April 16, 2010


Opinion: Legal System Faces Four Challenges to Viability

By:

The following is Part II of a speech by Chief Justice John T. Broderick, Jr. to students at Syracuse University College of Law, delivered on Feb. 22, 2010. Part I was published in the March 19, 2010 issue of Bar News. The entire speech is available on the courtís website.

In order to better appreciate where we are, it might be helpful to examine where we came from during the span of one lawyerís career.

When I began practicing law in 1972, desktop computers were non-existent, cell phones, faxes, twitter and Facebook were unheard of and civil jury trials were plentiful. By the time I was in my early forties, I had tried more than 40 jury cases by myself. The justice system in 1972 was more affordable for more people and small businesses and self-representation was far from the norm.

The demands on judges and staff were fewer, the reach and sweep of the media was much diminished, and public cynicism about government was modest, at best. Courts did not feel the need for public outreach or the necessity to promote civic education. Judges were not public figures like they are today and personal attacks against them were few. The independence of the judiciary was largely accepted; not commonly questioned or assailed.

The courts were rarely caught up in the crosshairs of politics, and budgets, while always tight, were less sparse than our judicial budgets today. While there were always unpopular judicial opinions, judges were rarely publicly bludgeoned. Money in judicial elections was miniscule when compared to today and special interests rarely inserted themselves into judicial campaigns.

The disputes resolved by the courts in the 1970s were fewer in number and often less contentious. Timeliness was more generously defined. Court security was of little concern and largely unnecessary when I began the practice of law. Those days have long passed and the threat of violence is something judges think about and deal with every day. Not only for themselves, but mostly for court staff and the public inside our courthouses. Las Vegas and Atlanta are very recent reminders. They likely wonít be the last.

When I became Chief Justice six years ago, I traveled to every courthouse in New Hampshire to visit with staff and talk to the judges. As you can imagine, we have some courthouses in small towns and rural areas. At one small courthouse, just off the quaint New England town square and adjacent to town offices, I asked the clerk of a one-day-a-week court what her greatest need was. She never hesitated. "Bullet-proof glass," she said. It was just another reminder that times had changed.

When I began life as a trial lawyer, the state courts were the only game in town. They had no real competition and no institutional compulsion to improve service or streamline process. The private justice system in America, now in full flower, either didnít exist or was so below the radar as to go unnoticed. Disputes large and small were brought to public courtrooms and often resolved by juries.

Today, civil jury trials are slowly but surely disappearing from the judicial landscape. Public participation in the administration of justice in open courtrooms enhances the legitimacy of the state courts and provides the valued wisdom of ordinary citizens. Jurors have also been our best friends. Their growing departure is unsettling and will have long-term consequences on the state courtsónone of them good in my opinion.

Four Challenges

In my view, the state courts face countless challenges if they are to remain viable. Let me discuss just four of the most critical. If state courts fail to meet these and other challenges they will continue their downward spiral and be relegated to a diminished role in our democracy. If lawyers donít commit themselves to helping us meet them, it is unlikely others will.

The first major challenge I see is accommodating the growing number of self-represented parties who cross the thresholds of our state courts each day all across America. The ever-rising tide of self-represented litigants is a national phenomenon, a growing national crisis for state courts. Sadly, the doors of our courthouses are effectively blocked for a growing number of people, and if we remain silent and averse to change, our system of justice will not long retain its intended roleóand many who can afford to leave a clogged system for the private justice system will do so. If we let current trends continue, we do so at our peril and, in my opinion, in derogation of our professional responsibilities.

The collateral consequences of inaction in the face of a rising tide of self-represented parties will be both substantial and long-lasting. If we fail to act to meaningfully address todayís challenges, I believe that within a decade state courts will cater principally to the self-represented and to those charged with crime. If that happens the funding for state courts may slide further and good people may not step forward in the same numbers to become judges. Itís no longer just the poor, by the way, who canít afford lawyers.

Most middle-income people I know would find it nearly impossible to hire a lawyer for anything other than a discrete task. Itís a sensitive topic, but if we are to keep legal services and the state courts within reach of the middle-class, itís a discussion that needs to take place.

In my state and in many others, in 70 percent or more of all divorce cases one or both sides are self-represented. People lose custody of their children or diminished visitation with their kids every day across this country without ever having the guidance or representation of a lawyer. People lose their homes, their apartments and their health care with no lawyer to advocate for them.

The American justice system, the greatest justice system on earth, should be able to do better than that. In California, under the leadership of Chief Justice Ron George, a pilot program has been established for a state-funded civil Gideon in certain types of life-altering disputes. Mike Greco of Boston, a former president of the American Bar Association, was and remains a staunch advocate for such a program. Progress is painfully slow. To give the issue critical mass, lawyers all across the country will need to get behind it.

Our next great challenge is simply remaining relevant in the greatest technology century in the history of mankind. Most state courts have not entered the 21st century when it comes to technology. Most small and successful law firms in my state have better technology than the state courts. Many business clients have better technology than their lawyers and vastly superior to the courts. The greater the disparity between the technology in the private marketplace and the technology in the courts, the less relevant, responsive and useful courts will become. Itís a real and growing concern. If state courts drop further and further behind the marketplace, the marketplace will be less and less likely to use us.

If, in fact, state courts, because of technology deficiencies, cannot provide a timely match for the needs of commerce, they, at their peril, at our peril, will grow less relevant. None of us win if we let that happen.

The third great challenge state courts face, a challenge that goes to the very heart of public trust and confidence, is the widely used and often abused system of selecting state court judges: namely, judicial elections. In fact, 39 states use some form of election to choose their judges, and seven of those select them in contested partisan elections. In some races, candidates are raising and spending more than one million dollars. In Illinois, in 2004, two candidates for a seat on that stateís highest court raised and spent over $9.3 million between them. That dollar total exceeded total contributions in 18 of 34 U.S. Senate races that year.

In Alabama, the cost of judicial elections has "skyrocketed in recent years." Over the last 16 years $54 million has been spent there just on races for its supreme court. In 2006 the second most expensive judicial campaign in U.S. history occurred there. In the race for chief justice the candidates raised $8.2 million. Very often the chambers of commerce and the trial lawyers are the biggest contributors.

Iím not suggesting that elected judges may not be outstanding people or lawyers, but I am suggesting that partisan elections, and all elections to some extent, create a huge public perception and, in some cases, allow lawyers to be elected who shouldnít be serving on the bench. Equally disturbing is the fact that lawyers who contribute to a judgeís campaign may later appear before the judge or the court he or she sits on. Recusals do not occur as often as you might expect.

Some years ago a national survey was done that asked elected judges if their decisions were at all influenced by where they got their money. In their anonymous responses some acknowledged that their decisions were influenced a great deal or somewhat by their contributions. That canít be good news, however you slice it.

In its most extreme form, judicial elections can result in what happened recently in West Virginia. The election for chief justice was so polluted by money and the appearance of impropriety that a judicial decision of the West Virginia Supreme Court was overturned by the United States Supreme Court on due process grounds. If you havenít read Caperton v. Massey, you should. The elected chief justice is no doubt a fine judge, but appearances ultimately matter more.

Any time a judgeís political future is wrapped up in someone elseís justice the fundamental promise of the American justice system is at risk. The organized bar needs to speak up.

Finally, we cannot succeed in the difficult years ahead without broadening public understanding of what the state courts do and of the growing crisis they face. We need to do a better job in reaching out for public support. Our task is made more difficult given the current state of civic knowledge. In recent respected scientific surveys, 66 percent of Americans acknowledged that they could not name the three branches of government. Only 15 percent could name the Chief Justice of the United States although 65 percent could name the three judges on American Idol.

Thirty-two percent said their states did not have a Constitution while 38 percent said they didnít know. Among teenagers, 59 percent could name the Three Stooges while only 41 percent could name the three branches of government. I could go on, but the challenge is stressfully clear.

We cannot assume that state courts will avoid paying a price or that judicial independence itself will not be jeopardized as a result of declining civic knowledge. Justice OíConnor and now Justice Souter are leading the mission to enhance civic understanding. If citizens donít fully understand why courts need to be accountable, yet independent, the ability of state courts to fulfill their constitutional and essential obligations will likely be compromised. Once undermined, it will be difficult to recover. The profession needs to join the effort in a big way or be willing to accept the collateral damage of inaction.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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