Court funding task force hears of human costs of cutbacks, delays
“Justice delayed is justice denied.”To an incarcerated inmate, nothing could be easier to understand. But that truism applies equally to civil cases, a parade of witnesses testified last month at a public hearing held at the UNH School of Law in Concord.The witnesses included the chief justices or top administrators from every New England state and New York, questioned by a panel of top national legal talent led by attorneys David Boies and Ted Olson, adversaries in the Bush v. Gore recount battle and then unlikely allies in the successful litigation to overturn California’s same-sex marriage ban last year.Boies and Olson are co-chairs of the American Bar Association’s Task Force on the Preservation of the Justice System, which held its second national hearing May 27 in Concord.The recession and continuing economic woes have hit state court systems hard. While noting differences, the judges painted similar pictures – smaller budgets and shrinking staffs, lengthening delays and an ever-widening gap between the needs of citizens and businesses for dispute resolution and the resources available.Also testifying were several lawyers and their New Hampshire clients who put a human face on the consequences of the delays that disproportionately affect civil cases as a result of underfunding the courts. Civil trials almost always take a back seat to criminal trials, to meet the constitutional requirement for speedy trials and public safety.‘My baby deserves her day in court’Christopher Seufert, an attorney from Franklin and a former president of the New Hampshire Association for Justice, introduced his client, Brian Baker, who spoke about the long delays and the frequent disappointments ensuing from the personal injury lawsuit filed on behalf of his daughter, Shelby.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 – Shelby went to her senior prom this year,” Seufert said.Baker, a police officer, related the human cost. “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? My baby deserves her day in court.”Asked 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, who appeared 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 the judge’s order took that long to be written up and mailed out.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 for the day. “This is what happens when a coequal branch of government is disrespected.”More resources neededStephen L. Tober, a Portsmouth lawyer, member of the ABA board of governors and a member of the task force, said the types of delays cited by the two New Hampshire 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 saps the potential for settling without a trial, Tober said. “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 – particularly if it is a well-monied institution – can just wait and wait.”Also testifying were New Hampshire Bar President Marilyn Billings McNamara and Paul Monzione, president of the Association for Justice.McNamara, who served on the court-appointed commission that helped develop New Hampshire’s circuit court and other reforms, lauded the steps the court is taking to become more efficient, but pointed out that the innovations cannot substitute for the unfilled judgeships and administrative positions needed to carry out the day-to-day work of the justice system.Richard Samuels, an attorney with the McLane Graf Raulerson & Middleton law firm, also testified, not as a lawyer but as chairman of the Business & Industry Association of New Hampshire.Samuels described the importance to the business community of having predictability and promptness in dispute resolution services. He praised the Legislature and judicial branch for their cooperation, in 2009, in creating a specialized business court in the Superior Court. Samuels said the business court, still in its infancy, is working well so far.He said more resources are needed for the courts to continue to operate effectively, but he stopped short of saying the courts’ funding needs need to be put ahead of other areas of government spending that have been deeply cut.Jonathan Lippman, chief judge of the State of New York Court of Appeals, focused his remarks not on budget shortages, but the instability of funding for civil legal assistance.Current funding in many states for lawyers for the poor fluctuate. “We need to have a permanent funding commitment for civil legal assistance, as a basic responsibility of state government,” he said. “Access to justice is not luxury only to be afforded in good times.”Dan Wise is editor of the New Hampshire Bar News and communications director of the New Hampshire Bar Association.