New Hampshire Bar Journal
2005 Winter, 6.
A Conversation With Chief Justice John J. Broderick, Jr
New Hampshire Bar Journal Winter 2005Volume 45, Number 4A Conversation With Chief Justice John J. Broderick, Jr.Bar Journal:Chief Justice Broderick, in the past year, the judicial branch has launched several studies looking at systemic issues in the courts. Much of this issue of the Bar Journal is devoted to presenting a condensed version of these reports in a single, accessible place. While some of these initiatives pre-dated the start of your tenure one year ago, it seems that in your first year, you have put the emphasis on the need for significant updating of the court system and the practice of law. What makes you believe the need for change is so urgent?
Broderick: The single most pressing issue the courts confront is dealing with the problems of NH's families. And more generically, dealing with access to the court system - how the courts process cases, how they deal with people as they come in the front door, and how they deal with the growing number of pro se litigants, and the increasing inability of people to afford lawyers. The Task Force on Justice System Needs and Priorities, chaired by attorney Bruce Felmly, produced the "Vision of Justice" report (see page 12) which identified many areas for potential improvement in process and procedure. That group, composed principally of those most familiar with the court system, worked within a rapid timetable of nine months to identify those areas and make concrete recommendations.
I now am actively working on assembling a more public committee to take the Vision of Justice report and the Task Force on Family Law report and the Pro Se Task Force report, and to a lesser extent, the Family Division Implementation Committee report - which pretty much stands on its own - and take up to eighteen months to "crunch the numbers" and come back with a well-thought out list of priorities we should pursue. The goal, as I see it, is to make the courts more compatible with the landscape of this new century and to get the valuable perspective of consumers of legal services.
Our court system was ingeniously constructed as a place to go when both sides had lawyers, a fair amount of money, and time to wait for a decision. The world we are in today is very different. As you know, in a very high percentage of cases, at least one party is self-represented. Dealing with self-represented litigants slows the process down; it creates more work for judges and far more work for the staff. And these people are entering a system they don't understand, and are often leaving a system they don't understand any better. This diminishes public confidence. So we need to redesign the court machinery from the front door to the judge's bench to make the system more efficient and user-friendly. This will help both clients and lawyers. I fear that we sometimes provide more process than is necessary.
We also, quite urgently in my view, need to integrate alternative dispute resolution into the machinery of our courts. The probate court has introduced paid mediation pretty successfully. We are now looking at what they have done right and learning from it. My goal is to start mediation in the largest district courts in small claims matters with the ultimate goal to make ADR available throughout the system, and to establish a statewide office under the judicial umbrella for alternative dispute resolution and to have a designated individual in charge.
Bar Journal: Would this ADR model rely more on paid rather than volunteer mediators?
Broderick: It would include a variety of approaches. You can't do it all with volunteerism. Despite the extraordinary efforts of volunteer mediators under the Rule 170 program, it's not available in every county. And as good as a volunteer system is, I don't think you achieve excellence through volunteerism alone. We are filling a need, thanks to NH lawyers; we are filling a huge need, but I would like to get a system where there is some mediation/arbitration in the state court that is free, some for a flat fee. At the higher end, we may create a mini-version of the American Arbitration Association (AAA). Lawyers would register with this statewide ADR office for a nominal fee, and the statewide office would serve as a clearinghouse for litigants seeking help, and the parties would select their mediators, and make their own bargains. The mediators/arbitrators would handle their own billing. I think we could develop such a system in the state court system that would offer an option to litigants who would not necessarily have to turn to the AAA. In many instances the AAA is very expensive.
We need to do everything we can to accommodate the needs of the people who use the courts. And we need to wring as much cost out of that process as we can.
Bar Journal: You talk about mediation, and about making the process more efficient for the users. How do you think the lawyer's role should change with these initiatives going forward?
Broderick: I believe we need to change the model for how legal services are delivered for a large percentage of our population, or lawyers will no longer be affordable for many people and small businesses. When I came to NH in 1972, there were a lot of town and country lawyers and small firms. Everybody seemed to be in the mix, doing a little bit of everything. Large firms may have had a little more specialization, but everybody was in the same game. Over time specialty work has gravitated to the larger firms, the larger firms have become even larger, and soon they will become affiliated with regional, national and international firms. There is a lot of reorganization...