Chief Justice: Courts Lack Resources to Deliver Justice
By: Dan Wise
Chief Justice’s Advice on Appellate Advocacy
Chief Justice Linda Stewart Dalianis said many practitioners who come to the NH Supreme Court with appeals do not do so regularly, and it shows. Her first advice to those practitioners is to study the work of those who concentrate on appellate matters.
She cites the Attorney General’s office and the Appellate Defender as "absolutely first-rate" appellate advocates. Their briefs, along with those written by other attorneys who regularly practice in the appellate area, are worth studying. These attorneys, she said, "know how to put a brief together, how to emphasize the strongest points, how to counter their opponents’ arguments, and they know how to do it in few pages."
"I read lots of briefs that I would say are poorly written; the argument is not advanced – I may not even be sure of what the argument is," said Dalianis.
With regard to oral arguement, she said: "Repetition is not useful. The best arguments made up here are those that are carefully mapped out in advance, and which emphasize the best argument that the proponent has to make and that try to deflect what you perceive to be the best argument of your opponent."
"You really need to make the most of your 15 minutes up here," she continued, "since we will interrupt you for sure, so you need to use that time to focus on the strengths of your case and the weaknesses of your opponents’." She urged practitioners to focus on their main points and "not spend a lot of time talking about the subsidiary issues."
Dalianis added that it’s important to focus on the remedy you seek. "We often have to ask the attorneys – suppose we agree with you, then what? You have to think through to the ultimate conclusion if you prevail, which is the reason you are here."
How Understaffed are the Courts?
Superior Court: 18 Justices - 5 positions unfilled (Court is capped at 18 for current budget cycle)
In January 2011, the Judicial Branch reported it had 94 vacancies out of of a total of 632 authorized non-judicial staff positions.
With State House budget debates just around the corner, NH Supreme Court Chief Justice Linda Stewart Dalianis says she’s prepared to argue that many of the state’s courts are not providing the service citizens deserve, largely because of staff cutbacks and a shortage of judges and masters.
Referring to delays in scheduling and orders, particularly in the understaffed Circuit Court Family Division, Dalianis likened the situation to a "slow-moving train wreck" that is being overlooked.
In a wide-ranging interview with Bar News in mid-December, Dalianis described how the groundwork is being laid for the NH e-Court Project and how she is approaching the budget process for the upcoming biennium. She discussed cost-saving innovations the judicial branch has implemented and those still in the pipeline. She also talked about ways practitioners can help understaffed courts and advocate more effectively before the Supreme Court. (See sidebar.)
In preparing to make her pitch to the governor and Legislature, Dalianis frames her argument for increased judicial resources not just in terms of the court system’s needs, but also its accomplishments. The rapid consolidation of the district, family and probate courts into the Circuit Court in the summer of 2010 was accomplished with less turmoil than she expected and yielded more than $2 million in savings in its first year.
The NH e-Court project, also announced two years ago, has met with financial obstacles but is moving forward. The ambitious initiative to implement e-filing and move all case processing online has been low-profile of late – administrators have been working hard behind the scenes, redesigning case processing workflows and executing a change in direction forced by funding loss. Now, the e-Court project is moving closer to fruition, with the issuance last month of a request for proposals from computer system vendors.
Dalianis said the Judicial Branch will ask for $6 million as a capital budget appropriation to implement the e-Court, and that she will discuss with Governor Maggie Hassan the current needs of the court system. Hassan will include the Judicial Branch’s budget in her proposal to the Legislature in mid-February.
"I am being honest about what it would cost to fill all of the vacant judicial positions and restore the Circuit Court sessions to 100 percent of what our weighted caseload says we should have [for judges]," said Dalianis.
Meanwhile, Hassan has asked state departments and the judicial branch to limit spending proposals to 97 percent of current levels for fiscal years 2014 and 2015.
"We are going to be meeting with Gov. Hassan on her 97 percent adjusted appropriation [request] fairly soon," Dalianis said in December. "We are going to show her – this is what we are going to have to give up, this is what we are going to have to do without, to reduce the budget request. We have already cut ourselves to the bone considering what we did with the Circuit Court."
In her efforts to persuade Hassan and the Legislature to fund the e-Court Project, Dalianis intends to rely on the fact that the Court has delivered on its cost-saving promises. "I want us to be in a position to say we have come through for you, so please keep [e-Court] going."
E-Court Project Shifts Focus
In January 2011, the Judicial Branch issued its Innovation Commission report outlining the proposed Circuit Court structure and other efficiency initiatives, such as the centralized call center, case-processing changes, and expanded use of video for non-evidentiary hearings. The e-Court project, whose goal is to create a court where all records are paperless and all actions take place electronically, was identified as the court’s highest priority.
The Legislature agreed to phased funding for the e-Court, based on the Judicial Branch’s meeting implementation milestones. But despite the court’s reports of progress, the Legislature failed to fund the second year of the project.
"We had expected $1.2 million in a supplemental appropriation," Dalianis said. "But that appropriation got caught up in the committee of conference process… so the funds that we had expected to be able to use in our then-plan for the project were not there. Instead of just giving up, we decided that the best thing to do was to regroup… and figure out how to take the best advantage of the remaining money to persuade the Legislature that we are still worth investing in."
The original approach, unveiled last January, called for the project to be designed and implemented for all case types, court by court. The loss of funding forced the court to retrench and look at a more targeted implementation. The project would not be scaled back – the vision still calls for the design of an entirely electronic court system – but the implementation would be done in smaller steps, starting with a high-frequency, high-impact group: small claims cases.
"We came up with the idea of using small claims cases as the proof of concept for the e-Court," said Dalianis. "We chose this case type because we can afford it, and because it’s in the top five in case volume – easily impacting 20,000 to 30,000 citizens each year."
The RFP calls for proposals to be submitted by Jan. 25, and the court has set a March 5 deadline to decide on a vendor. Dalianis said she hopes the pilot project of an all-electronic small claims process will be launched in one or two Circuit Court sites by this summer.
Dalianis emphasizes that even though the project is proceeding in smaller steps, the court system has not narrowed its scope. "People think we are just doing small claims," she explains. "[But] we are looking at the entire infrastructure of the court, designing all of it, and hanging small claims as the first bulb on the tree."
Family Division Delays
Dalianis, who regularly takes time to visit court sites around the state, is aware that understaffing and lack of judges is hindering access to the courts, particularly in the family division.
"It’s the citizens who are losing out," she said. "Unfortunately, there is no visible constituency against delay in the courts."
While the court works to secure funding for more judicial appointments, Dalianis said, the best thing lawyers can do is try to help their clients settle cases amicably.
"Every family wins if they wind up settling their case themselves," she said. "So, to whatever extent lawyers can be of assistance in quelling anger and hard feelings, and in causing their clients to be realistic about what they expect and reasonable in how they behave... Every case that ends up with an uncontested final hearing and does not come back every six months is a case that is not in the way of those that cannot be managed."
The six appointments of Circuit Court judges approved this summer, Dalianis admits, have not substantially helped the situation. Only two of the judicial positions were filled with people not already working in the system. (Of the six appointees, three were part-time judges, and one was a full-time master). "I naïvely hoped that the six appointments were going to help, but they netted us 1.5 new judges, and [with benefits for full-time judicial positions] now they are more expensive."
Dalianis said she encouraged the governor during the transition to ask the Judicial Selection Commission to get an early start on the process for additional judicial appointments. But it did not happen.
"The family division needs more judges, and it needs considerably more court processing staff. But at least until we get the e-Court part of the family division up and running – which is at least two to four more years, optimistically – we won’t have the resources to do the job that the citizens deserve us to be doing – in spite of how hard everyone is working."
The Circuit Court Call Center has played a large role in relieving courthouse personnel of answering routine phone inquiries, allowing them more uninterrupted time for case processing.
On the day after Labor Day in 2012, the call center handled 3,056 calls, referring no more than 30 percent to the courthouses, with no caller waiting more than a minute. Since the call center began operations, Dalianis said its operators have spent more than 11,000 hours on the phone with callers, which equates to 11,000 hours of uninterrupted time for staff in the courts.
"It’s one way we are keeping our heads above water," she said.
The Superior Court is now looking at how it will incorporate the use of the center, which is expected to be in use for superior courts statewide by the end of June. Dalianis said the Supreme Court, with a much different type of caseload, nevertheless is looking at whether it would make sense for it to take advantage of the call center.
The court system is also making greater use of video for a variety of hearings and conferences. Dalianis said progress on installation has been stalled in some locations, with some 20 to 30 court and jail sites not fitted up yet. In October 2012, there were more than 700 video hearings scheduled around the state, although the number actually held was somewhat lower.
"The judges are getting more comfortable with it. The sheriffs are very happy about the reduction in travel time and mileage for transporting prisoners. This has proven to be a big success."
Dalianis said that she is also meeting regularly with all of the sheriffs to monitor budgeting issues, as the Judicial Branch provides the money, but the sheriffs determine the spending for transport and courthouse security.