Achieving better outcomes for litigants in the New York state courts.

• Author: Lippman, Jonathan

REMARKS

Good afternoon. I want to thank Dean Treanor and John Feerick for this wonderful opportunity to be a part of the John Feerick Center's first symposium. We are very fortunate in New York to have a law school so clearly committed to promoting the public good and to training lawyers to serve the public interest.

I couldn't be more excited about the creation of the new Feerick Center for Social Justice and Dispute Resolution. It is a wonderful tribute to a pillar of the New York legal community, a true servant of the public interest and a person of tremendous integrity and humanity. I have little doubt that, like its namesake, the Feerick Center will make a valuable contribution to our City for years to come, providing new ideas, new research, and new training for those of us who believe in the power of lawyers to effect positive change.

A single phrase caught my eye in the press release announcing the new Center. In it, Dean Feerick said that the Center had "great potential for good works." (1) I like to think that we in the New York State Court System have this same potential. The challenge we face every day is how best to fulfill this potential in the face of enormous obstacles.

Those of you who follow the courts know that the challenges come at us from all angles these days. Judges are justifiably frustrated because they haven't had a pay increase in seven and a half years. The Second Circuit Court of Appeals has affirmed a decision scrapping the system by which we have, for generations, elected Supreme Court Justices in New York. (2) More recently, the New York Times has urged structural reform of the hundreds of town and village courts located throughout our State--courts over which we have almost no direct administrative or fiscal authority. (3) I could go on, but you get the picture. As the Chief Administrative Judge responsible for overseeing a $2.4 billion organization that handles four million new cases each and every year, there is never a shortage of compelling challenges to be addressed.

But I'm not here today to talk about the stresses of my job. What I want to talk about instead are the efforts that we have made to re-engineer the courts in New York. And I want to highlight some of the intellectual links that connect my world, the world of the New York Court system, to the world of the Feerick Center, the world of alternative dispute resolution. There is a great deal of overlap between the ADR movement and some of the "problem-solving justice" reforms that New York State Chief Judge Judith S. Kaye and I have championed over the past decade, and which provide innovative solutions for litigants in our civil and criminal courts. The ills of society--whether they be excessive litigiousness or certain criminal defendants whose difficulties cry out for a helping hand rather than incarceration--are so vividly reflected in our courts in New York.

The problems and challenges that we face today in using ADR methods transcend the boundaries between criminal and civil matters in a New York court system that looks to effective outcomes for people rather than merely counting filings and dispositions. Indeed, we have long used ADR in a variety of ways, including: our community dispute resolution centers, which in the last fiscal year resolved 36,000 primarily civil and family cases; (4) court-annexed ADR in our small claims courts; court-annexed ADR in the Commercial Division of the Supreme Court; and statewide attorney-client fee dispute resolution program.

One area where ADR has proven especially effective has been in matrimonial matters involving children. Delay, expense, and trauma to children are too often part and parcel of the divorce process, particularly with respect to custody, visitation, and child support. Mediation, when used appropriately and with due regard to the potential for power imbalances between the parties, has a proven track record of dealing with these problems. (5) Mediation provides a safe, structured forum in which parents can meet face to face to discuss what their aspirations are for their children and what kind of relationship they will have moving forward in order to promote the children's best interests. Significant independent research points to the effectiveness of mediation in resolving parenting issues. Parents report increased satisfaction with the outcome--you will hear that word, "outcome," again and again today-and increased compliance with settlement agreements. (6) We have been utilizing mediation for parenting disputes with great success in Family Courts throughout the State since the 1980s. More recently, we have successfully employed it in matrimonial matters in Manhattan, under the leadership of Administrative Judge Jacqueline Silbermann, and in the Eighth Judicial District, covering Buffalo and the Western part of the State.

LESSONS FROM ADR

It might seem ironic that the court system would look to the world of ADR for lessons, given that ADR is premised on some fundamental critiques of traditional court processes--too lengthy, too expensive and, dare I say it, too adversarial and legalistic. Many advocates of ADR have come to believe that the "you win, I lose" culture of litigation makes it difficult for judges and lawyers to see the forest for the trees and to craft resolutions that truly address the issues and problems that bring litigants to court.

It is true, however, that the New York courts have taken to heart some very basic ADR principles, (7) such as: 1) a commitment to rethinking business as usual; 2) an understanding of the importance of cases that are often dismissed as "minor"; and 3) an emphasis on restoring public trust and engaging citizens in doing justice. I'd like to take just a minute to explore each of these.

RETHINKING BUSINESS As USUAL

The most significant contribution that ADR has made to the courts is a simple one--driving home the notion that change is in fact possible. Courts are, at heart, conservative institutions that rely on the slow and painstaking accumulation of precedent to guide decision making and on an adversarial contest between two advocates who argue in front of an objective third party. These approaches make good sense and are effective in many contexts--but not always. ADR pointed out that in many cases--a dispute between neighbors, a juvenile accused of vandalism, a small claims case between two local businesses--the traditional approach served no one's interests: not the parties, not the attorneys, and not the courts. No one denies this wisdom today, but a generation ago this was radical thinking.

The ADR movement got us in the mode of asking some very basic questions--like why can't we test new approaches to make justice swifter, more comprehensible, and more meaningful?

This is a question that we in the courts now ask ourselves as part of our standard operating procedure. This doesn't mean that we're giving license to judges to abandon the Constitution or make up the law as they see fit. But it does mean that our courts can and should adapt to changing times and changing conditions on the ground. It also means that we should constantly be engaged in self-reflection, examining the outcomes we achieve and asking ourselves if there are better, simpler, and faster ways to achieve our goals. All of this is straight out of the ADR playbook.

SO-CALLED "MINOR" CASES

Another lesson we have learned from ADR is that there is no such thing as a minor case. Many ADR programs were created for the very reason that courts were not paying enough attention to civil and criminal cases involving neighbors, relatives, and acquaintances--charges of harrassment, minor assaults, business disputes, and the like. When I first started working as an entry-level court attorney in the early 1970s, I quickly learned the realities of life in the New York City criminal courts. Every day, without fail, hundreds, if not thousands, of cases would pour into the system--cases that, by law, must proceed from arrest to arraignment within twenty-four hours. In the context of the overwhelming caseloads of the 1980s and 1990s, it was only natural that the courts adopted what some have called a triage approach. The more serious the crime, the more time and energy that prosecutors, defense attorneys, and judges would devote to it. It sounds reasonable enough, but the problem with the triage approach, particularly as to quality of life crimes and neighborhood disorder, is that it sent an unintentional message to the public that certain kinds of cases simply didn't matter. But of course we know that they do matter--and they matter a lot to the people and the communities who bear the brunt of these offenses.

I'm happy to report that we have learned our lesson. There is no greater evidence of this than our pioneering community courts, including the Midtown Community Court, located just blocks away on 54th Street, which I will get to in just a moment.

PUBLIC TRUST

At the end of the day, courts exist to serve the public. Unfortunately, we've seen a massive erosion of public trust in justice over the past generation. In fairness, many citizen complaints about the courts are based on a lack of knowledge or, even worse, sensationalized television shows and partisan political attacks. But many complaints are based on something else: direct, first-hand experience of the courts either as litigants, victims, witnesses, or jurors. When members of the public come away from these experiences feeling like they have been mistreated or, in the case of some victims, re-victimized, we've got a very real problem indeed. ADR advocates were among the first to recognize this, and their search for new ways of resolving disputes, as well as their efforts to engage local residents as mediators, community board members, and volunteers, was all driven by a desire to reconnect the justice system to the public and improve the delivery of justice.

PROBLEM-SOLVING JUSTICE

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