Bar News - January 18, 2013
Morning Mail: NH Courts Are in Crisis
By: Lee C. Nyquist
Attorneys work vigorously to pursue the interests of their clients. Perhaps the most important component of representing a client is to get an early and efficient result. We can work as hard as we possibly can, and our clients can provide us with the full attention that we need, but there is something essential that none of us can control – access to the courts.
The New Hampshire Constitution guarantees civil litigants "a remedy ... promptly and without delay; conformably with the laws."
No one quite knows what the exact standards are for the constitutionally guaranteed right to timeliness, but those of us who practice in our state courts are concerned that budgetary constraints are making this right more aspiration than reality.
The most problematic situation exists in our new circuit courts, which have jurisdiction over domestic matters. This is particularly confounding because of the immediacy of the needs of clients with domestic issues. In divorce cases in the courts’ family division, the initial temporary hearing may occur nearly six months after the action is filed. The final hearing will take place at a time several more months into the future.
Often, due to the busy schedule of the courts, when a matter cannot be tried to conclusion on the day it is scheduled, it is continued for further trial days – again, nearly six months further down the line. Petitions for modification of divorce decrees also can approach six months after filing before a hearing is scheduled. Perhaps the most critical backlog is in emergency domestic cases, such as cases involving parental visitation or other matters involving immediate action. It can be as long as four months before a hearing is scheduled.
The courts are so backlogged and understaffed that litigants may then wait as long as two months before a decision is sent out by the clerk’s office. The judge’s decision is usually made quickly and efficiently, but the processing and typing of the decision does not take place until weeks later. This is not the fault of the capable and dedicated court staff. It is the direct result of understaffing, which is a direct result of underfunding.
Civil cases subject to the jurisdiction of our superior courts, such as personal injury, contract and business litigation, are also seriously backlogged.
A recent personal injury case involving a major national retailer has just received a notice for a jury trial 18 months after it was filed. Unfortunately, many civil cases do not get "reached" (actually tried) on the date they are first scheduled, so the actual time between filing a suit and trial will often exceed two years or even longer, depending on which one of the 10 New Hampshire counties it is filed in.
The saying, "Justice delayed is justice denied," is already affecting our state’s citizens at critical moments in their lives.
New Hampshire attorneys work hard and are timely in their performance. Judges, court clerks and court staff similarly work hard. Many laudable, important and helpful changes in court rules and procedures designed to speed the litigation process have been developed, adopted and implemented. Nevertheless, underfunding of the courts has reached critical mass and our constitutional right to a prompt remedy is threatened.
Lee C. Nyquist is a veteran civil trial attorney and practices with the Shaheen & Gordon law firm. This letter was also published in the NH Business Review on Nov. 30, 2012.