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Bar News - August 23, 2013

Court's Corner: Opposition to Criminal Continuance Policy Continues


Attorney Working Group Formed to Advise the Court

Several attorneys have been invited to join a working group that will provide input to the Superior Court as it develops a felony case management plan that includes a controversial proposed continuance policy.

As part of an effort to study and streamline felony case flow in New Hampshire, a subcommittee of judges and court administrators drafted the continuance policy earlier this year. In response to concerns about a lack of lawyer involvement in the process, Superior Court Chief Justice Tina Nadeau announced in early August that she was forming a working group that will include private defense attorneys, state and county prosecutors, public defenders, and representatives from the NH Judicial Council and NH Appellate Defenders.

An overall felony case management plan, designed to reduce the time between arrest and disposition in felony cases, will be crafted over the next year, with input from the working group. Other issues the court subcommittee and the attorney working group will discuss include possible changes to Rules 98 and 99, which deal with disclosure deadlines, and the potential filing of felonies directly in Superior Court.

The circulation of the draft continuance policy this spring resulted in vocal opposition from defense attorneys and prosecutors, two factions of the NH Bar that don’t tend to agree on much. The continuance policy was the main topic of conversation at a recent “brown bag” lunch discussion at Rockingham County Superior Court in Brentwood.

At that event, Superior Court Judges Marguerite Wageling and Will Delker and Deputy Court Clerk Cindy Perreault met with about 25 attorneys on July 31 to discuss the policy, which lists specific reasons that will “generally not be considered sufficient grounds” for allowing a continuance, including, among others:
  • “counsel agree to a continuance,”
  • “the case is likely to plead if continued,” and
  • “discovery is not complete.”

Attorneys objected to the specificity of the policy and its categorical language. Alan Cronheim of the Sisti Law Offices suggested that the court instead deal directly with attorneys who tend to request more continuances.

Nadeau and other judges have said the policy was meant to remind all parties of their shared responsibility to deliver timely justice, to promote consistency across the judiciary, and to increase transparency. Judges will retain full discretion over whether to grant motions for continuance in individual cases, Nadeau has stressed.

For lawyers in New Hampshire, assented-to motions to continue court hearings are considered a staple of law practice. Cherished as a sign of collegiality among adversaries, attorneys generally agree to opposing counsel’s first request for a continuance in a case. These assented-to motions are an informal tradition considered part of the so-called “New Hampshire Way” of practicing law. (These practices are elaborated in the aspirational “Litigation Guidelines” approved and published annually by the NH Bar Association. See page 42.)

“There’s a feeling in the bar generally that this is pretty much an anti-lawyer policy,” Rockingham County Attorney Jim Reams said at the lunchtime meeting late last month in Brentwood.

Under the new policy, attorneys would be required to explain the reason behind their agreement to continue a case.

“The bottom line is that there needs to be transparency,” Judge Wageling told attorneys. “I agree that you guys know the cases better. Our job is to make sure justice is done… You want a continuance? Give us a reason.”

The goal of the continuance policy and other initiatives of the court, such as a greater reliance on uniform dispositionial or status conferences, is generating a more realistic trial list, Wageling said. Scheduling is more efficient and predictable when parties and judges know which cases will actually proceed to trial.

Nadeau said the new attorney working group will relay concerns or suggestions from members of the bar to the court as it develops the felony case flow management plan. Implementation will likely require changing court rules and potentially legislative action. Nadeau said she’s committed to having an open process that takes all concerns into account as the court works to increase efficiency without sacrificing justice.

“I’m really happy with the progress of the brown bags,” she said of the series of local meetings on the continuance policy. “The feedback I’ve been getting has been very productive.”

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