Judiciary Crisis: ABA Task Force Seeks to Preserve Justice

From L to R: Ted Olson, UNH Dean John Broderick, David Boies

Today I am in New Hampshire, back at the place where my legal career began almost 19 years ago.  At the time the school was known as Franklin Pierce Law Center, today it is the University of New Hampshire School of Law.  Over the years the building has changed, there are some new faces but also the long-time familiar faces are great to see.

I have returned to the University of New Hampshire School of Law for an American Bar Association Task Force hearing.  The Task Force is on the Preservation of the Justice System, and is chaired by perhaps the two most well-known lawyers in the United States, David Boies and Ted Olson.  Boies and Olson are the lawyers who represented Vice President Al Gore and President George Bush at the United States Supreme Court in Bush v. Gore, with Olson representing Bush and Boies representing Gore.  They are frequently on opposite sides of extremely high profile cases, and in fact are on opposites sides of the NFL labor litigation presently, with Boies representing the Owners and Olson representing the players.  Olson and Boies are lending their considerable clout to shining light on a true crisis — an inadequately funded Judiciary.

I had the opportunity earlier this morning for an exclusive interview with Olson and Boies, which will be published on Monday, May 30, 2011 here on IPWatchdog.com.  During this interview, and at the beginning of this ABA Task Force hearing, Olson and Boies explained that while they are frequently on opposite sides of litigations, they are on the same side when it comes to the funding crisis that is causing many States to cut funding for the Judiciary.  For goodness sake, in most States the Judiciary budget represents less than 2% of State spending, and in some States Judiciary funding represents about .5% of State spending.

Some might wonder why I am writing about what is predominantly a State issue.  The answer is simple.  Without a functioning Judicial System on the Federal, State, County and Municipal level we all are at risk and every lawyer has a responsibility to speak up and tell the truth about the situation.  Moreover, most business to business disputes are State law matters, and a functioning State Judicial System is essential to the predictability necessary for businesses to thrive.  If you get stiffed on a bill, if a former employee compromises your trade secrets, if a competitor is engaging in unfair business practices or trademark infringement, State Courts play a vital role for those who need redress.

We have long known that a stable business climate is important for thriving, growing businesses.  That is why organizations such as the Chamber of Commerce provide rankings of State Judicial Systems in terms of friendliness toward business.  Said as straight as I can, if you don’t think a functioning Judicial System is a huge business issue then you just aren’t paying attention or haven’t seriously thought about the issues.  No where is this more important than with intellectual property matters where there are absolutely no tangible rights, everything is intangible and without a functioning Judiciary you might as well have no rights whatsoever.  Intellectual property rights exist because the Court System is there to enforce those rights granted by the United States Federal Government and rights recognized by State common law and statutory rights.

The crisis faced by the Judiciary is real.  The second panel here today has started discussing about a case in New Hampshire originally filed in 1995 that is still pending.  David Boies, who is chairing the panel asking questions, discussed a commercial dispute initiated in 1993 and still unresolved.  This boggles the mind, but is an all too familiar story.  Criminal cases take precedence, perhaps rightly so given the nature of the liberty interest, but with criminal cases taking precedence over non-criminal matters that means cuts in the Judiciary will hit commercial disputes and personal injury matters.  Cases that never get to trial because they are continually bumped by criminal cases will only get worse, if you can believe that.  Justice delayed is justice denied, it is as simple as that.

On the Federal level there are enormous vacancies that contribute to the exceptionally long waits to get a dispute heard and ultimately finally resolved.  For the life of me I don’t understand why Presidents don’t seem to understand that they can have far more impact by appointing Judges than through anything else they will likely ever do.  Aside from paradigm shifting legislation, which is few and far between, the larges impact any President can have is to appoint a complete Judiciary.  Even with this absolute truth President after President spends political capital everywhere besides the Judiciary, and then appoints certain folks who simply have no chance of being confirmed.  Political theater does nothing to help people, and while Presidents can and should appoint competent people that can be confirmed, the Senate must actually play its Constitutional role, which all too often they don’t seem to do.

Giles Sutherland Rich classroom at UNH School of Law, site of ABA Task Force Hearing

Judges interface with people, families and businesses.  Any curtailing of the Judiciary effects real people, whether when a Judiciary allowed to remain perpetually short staffed through Judicial vacancies, or whether layoffs of support staff become necessary due to lack of appropriate funding.  You see, Judges are the ones we turn to at times of most dire need.  Judges get involved when there has been a failure of government to address important issues, such as was the case with the California penal system overcrowding decided by the Supreme Court earlier this week.  Judges get involved when there is a failure of private relationships, resulting in unresolvable differences, such as with contract and business disputes.  Judges get involved when there is a wrongdoing, sometimes malicious and criminal, sometimes reckless or negligent.  Judges get involved to settle affairs after a death, and they get involved to monitor the handling of affairs of those who are dependent upon the state due to one or another type of disability.  Judges are the problems solvers that society turns to when arms-length transactions are impossible, where there is no answer, there is some wrongdoing and when we need help the most.

Simply stated, Judges resolve problems without any superfluous spending.  In most cases District Court Judges in the Federal System have a law clerk or two, likely a secretary, courtroom security, courthouse security, some folks in the Clerks Office to handle the paper (or electronic files) and interface with the public.  In many State Courts the trial court Judges do not have a law clerk, perhaps a number of trial courts share a law clerk or can draw on a pool of law clerks.  State Courts have a bailiff, likely some security detail (although not as much as on the Federal level), they probably share a secretary, and there are those folks in the Clerks Office to handle paper (or electronic files) and interface with the public.

By any private sector definition Federal, State, County and Municipal Courts operate exceptionally lean.  I for one am completely fed up with government.  Why is it that whenever there are tough times what gets cut first are those things that are the core responsibilities of government?  Government is justified in its existence when it works to provide that which people could not otherwise obtain on their own.  Collectively society comes together to provide for a Fire Department, Police Department and Emergency Medical & Rescue services because it is not feasible for an individual, business or community to provide those essential services; it would be too costly.  Likewise, small groups cannot afford to have a Court System or prisons, for example.  Yet whenever there is a financial crisis government officials will say that unless taxes are raised police and fire will experience layoffs, prisoners will be released early and the Judiciary will have to tighten its belt and perhaps lay off an already meager staff or simply shutter the doors and furlough workers to save fund, which is happening across the country.  How does that make sense to anyone?

Government officials on every level need to wake up and wake up soon, or we need to hire new government officials.  Government is there to work for us, provide essential services for us, and not to spend needless sums on pet projects and non-essential matters.  Those things that are non-essential should be the first things cut, not the last things cut.  Coming off this Great Recession we all know that to be objectively and undeniably true.  We have all had to make cuts to deal with new economic realities, and we have all had to prioritize.  So why can’t government prioritize?  The idealistic pragmatist that knows there are solutions to our problems wants to say “I don’t know how or why government can’t figure this out.”  The realist in me who understands politics all too well is extraordinarily cynical about how things get done.

As a fiscal conservative I understand the need to reign in spending, to spend within our means.  It would be a novel concept for government to bring in more than is spent so there is something left over to create a rainy day fund.  That being said, I also know enough to know the difference between a justified, rational curtailing of spending and a nonsensical approach.  It is time for everyone interested to say enough is enough.  It is time for government to serve us and stop cutting essential services in order to save non-essential spending.


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Join the Discussion

4 comments so far.

  • [Avatar for Wayne Haggie]
    Wayne Haggie
    May 29, 2011 09:06 pm

    I personally think that it is sad that the courts are so overworked underfunded and the people of the state of NH are placed on the back burner. Even in a cutody battle where children are not with thier parents because the courtd make people wait and wait. Exactly how long should a parent wait to be reunited with their own children?

  • [Avatar for Gene Quinn]
    Gene Quinn
    May 26, 2011 02:58 pm

    Question from Jon L. Mills, Dean Emeritus University of Florida College of Law: “Do you think the Federal Courts are underfunded?”

    Answer from U.S. Federal District Court Judge Norma L. Shapiro: “Yes, and have been for years.”


    U.S. Federal District Court Judge Norma L. Shapiro: “Courts are an essential part of a free society, and a free society is important to me.”


    U.S. Federal District Court Judge Norma L. Shapiro: “If you could imagine a country without courts it wouldn’t be a place most of us would want to live.”

  • [Avatar for Gene Quinn]
    Gene Quinn
    May 26, 2011 01:50 pm

    “Turning legal disputes into contests of endurance does little to serve Justice.” Richard Samuels (of the McLane law firm), past Chair of the New Hampshire Business Industry Association. Testifying at the ABA Task Force hearing on behalf of the NHBIA at the University of New Hampshire School of Law.

    Well said! When Justice is delayed the better funded party can simply outlast the other party, forcing settlement. Settlement because you cannot get your day in court in a relevant time frame does not serve Justice at all.

  • [Avatar for Gene Quinn]
    Gene Quinn
    May 26, 2011 01:04 pm

    We are just hearing of a situation here in New Hampshire where a visitation order was approved in June, but not received until September. It was only received after the attorneys sued the State and gained publicity did they learn that a decision was made and was in a pile of papers waiting to be mailed out.