Bar News - June 17, 2011
Opinion: ABA Task Force on Court Funding: Speaking to Monetary, Human Costs of Court Delays
By: Dan Wise
The American Bar Association came to the UNH School of Law in Concord last month to focus national attention on the problems of underfunding the state courts. The ABA Task Force on the Preservation of the Justice System held its second hearing on May 26, gathering information on what the consequences are of chronic underfunding of the justice system. The task force expects to issue a report at the ABA Annual Meeting this summer.
Prominent people – nationally known lawyers David Boies, Ted Olson and Harvard Law Professor Laurence Tribe, leaders of the American Bar Association including past and future ABA presidents, chief justices from nearly all of the New England states and New York, a federal judge from Pennsylvania – provided fact-packed, substantive testimony and comments, articulately delivered.
But the testimony that listeners can – and would and should remember – was provided by two NH lawyers and their clients.
Christopher Seufert, an attorney from Franklin and a former president of the NH Association for Justice, introduced Brian Baker who spoke about the long delays and the frequent disappointments ensuing from the civil lawsuit. The litigation, arising from lead poisoning his daughter allegedly suffered as an infant, has been in the courts for 10 years without going to trial. "This case was brought when she was a just a young child and Shelby went to her senior prom this year," Seufert said.
Baker, the father, related the human cost. "I grew up knowing you are supposed to have a trial. But each time, the courts are too busy. Each time the case has been scheduled, we have to prepare my daughter for her testimony, and then the case is postponed.
"How many times does she have to say she was poisoned?" he lamented, recalling the rigor of preparation for trial. "My baby deserves her day in court."
In response to questions about the possibility of mediation, Seufert said the years of delay have made a trial unavoidable. "Too much has been invested. This case has become too expensive to settle."
Also testifying was attorney Kirk Simoneau, of the Nixon Raiche law firm in Manchester, appearing with clients Wayne and Kristy Haggie of Nashua. A judge ruled last June that the Haggies could begin visitation with their children, now in the custody of Kristy’s parents, but it took four months for that to happen because it took that long for the judge’s order to be written up and issued.
Due to that lapse of time, and earlier delays, Wayne Haggie said: "I feel let down by the courts. We missed our first steps with our daughter."
"Human interest we are not; these are facts," said attorney Simoneau, referring to an ABA agenda notation. "This is what happens when a co-equal branch of government is disrespected."
"I’ve heard a lot of problems discussed today" Simoneau added. "Where’s the call to action? Where are the protest signs? Where are the other lawyers brave enough to file lawsuits against the states and say, ‘Let’s get this right?’ It’s good enough to talk, but we need action."
Stephen L. Tober, a Portsmouth lawyer and a member of the ABA Board of Governors House of Delegates and member of the Task Force, said that the stories of delays cited by the two NH lawyers are sadly common. "This is a systemic failure in New Hampshire. This is not a failure of good people trying hard. Judges have no resources."
The inability of civil cases to reach trial when dockets are crowded – as criminal cases for incarcerated defendants always takes precedence – saps the potential for settling without a trial, Tober added. "If you can’t say to the other side, ‘We’ll just let the judge or a jury look at this – if that’s a hollow promise, then the other side – if it is a well-monied institution – can just wait and wait."
NHBA President Marilyn Billings McNamara and Paul Monzione, president of the NH Association for Justice, also testified. McNamara, who served on the court-appointed commission that helped develop NH’s circuit court and other reforms, applauded the new approaches. She lauded the steps the court is taking to become more efficient but pointed out that these innovations cannot substitute for the unfilled judgeships and administrative positions needed to carry out the day-to-day work of the justice system.
Visit law.unh.edu for more about the ABA Task Force hearing including photos and a streaming video of the event. Search for the Task Force page at americanbar.org.