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Bar News - August 13, 2010

President's Perspective: Fair Play: Available Justice


Marilyn Billings McNamara
I’ve been collecting stories about court delays and the impact these delays have on clients. I’m a family law attorney, so the stories I hear from colleagues are particularly dramatic, but make no mistake – the inability of the courts to right wrongs in a timely manner is weighing heavily on the profession and costing us time, money and the respect of the public at large.

Justice is a fundamental right, not just because it’s morally correct to hold to a standard of fairness, though it is, but because fair play is the hallmark of healthy, safe, stable civilizations. Even little kids know what "no fair" means. It means justice.

Every entity, from individual citizen to multi-national corporation, needs a forum in which to find justice. I view a part of our responsibility as lawyers as advocating for the availability of justice: justice not denied, reduced, or rationed.

My last column was a reprise of my speech at the Omni Mt. Washington Hotel in June. I wrote that I learned from my grandson how we need to figure out what to do, and then we need to do it. Ian is doing fine now. He’s turned his attention away from staying alive to learning how to make his opinions known and get from one place to another. Sometime in the next twelve months he’s going to stand up and take a couple of steps forward. That’s what we need to do, too.

Article 14. [Legal Remedies to be Free, Complete, and Prompt]

Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws. June 2, 1784
Lawyers promise to uphold and defend the Constitutions – state and federal – when they come before the Supreme Court at their admittance to the Bar. Read New Hampshire’s constitution again. It’s got some great language; I like Article 14 [see sidebar] particularly well, but access to justice and fair treatment is a thread woven throughout the document. The founders knew that a safe, healthy community depends upon the ability to solve problems with fairness, timeliness and compassion. The courts are a place, with apologies to Robert Frost, "where, if you have to go there, they have to take you in." (You should read the whole poem: The Death of the Hired Man)

Minor quarrels ought not to be visited upon the court. Lawyers formerly served as a filter for the judicial system, diverting the petty and the pointless away from the courts. Now it’s judges, clerks and court staff who carry the burden, while the clients with lawyers sit outside the courtroom, checking their watches.

There are changes coming that will make our justice system more efficient. The Innovation Commission created by Justice Broderick is working on enhanced technology, streamlined court processes, restructured management and consolidation of functions, and expects to have recommendations within a few months. I do believe, however, that we must look more closely at fundamental change within the profession as well.

Trained in the law, tested in our professional lives, we know more than the public at large, yet we seem to have this low self-esteem issue about our calling – and no wonder, with every third website on the Internet offering legal advice, scrivener’s services or instant readiness to "a lawyer in your state." Recently someone complained to me that the court rules were too hard to understand. "Why should I have to hire a lawyer to explain the rules?" he asked. He didn’t give me time to answer and wouldn’t understand that the rules are the tip of a very large iceberg – a body of law, practice and procedure that has been handed down both orally and in writing, not just for centuries, but millennia.

So, as summer draws to a close and the real work begins, I see two parallel paths before me – one, advocacy for Judicial Branch funding so our clients have access to the justice they need, and two, voicing our value to the court, the public and to ourselves, as well. I have more ideas; but like my grandson Ian, I’ll be taking this one step at a time, so as not to fall too often or too hard. I invite your thoughts, comments, ideas, crazy schemes, and support.

Marilyn Billings McNamara is an attorney at Upton & Hatfield in Concord. She is the 2010-11 president of the NH Bar Association.

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