By PHILLIP BANTZ
“Things get slowed down because there is less judge time, and that may well cause a crisis,” said Newport lawyer Michael C. Shklar, who frequently performs court-appointed work in Cheshire County. “It will probably cause all hell to break loose sooner or later.”
The latest study by the National Center for State Courts said 26 full-time judges are needed to effectively manage the state’s Superior Court caseload.
The N.H. Legislature has authorized 22 judge positions, the statutory minimum, and two retirements and a resignation have dropped the number of active judges to 19.
Gov. John H. Lynch’s 11-member Judicial Selection Commission is screening applicants and is expected to fill the three vacant judge slots in December, according to Superior Court Chief Justice Robert J. Lynn.
“It certainly is a significant and growing problem around the state,” Lynn said of the judge shortages. “As criminal cases have increased, we’ve had a shortage of judges and civil cases are getting put on the back burner.”
Criminal cases are top priority because defendants have the right to a speedy trial. If their case isn’t heard in a timely manner, the charges against them will be dismissed. Civil cases have no time limit.
“Civil cases have to stand behind other cases, which have constitutional priorities,” said Cheshire County Superior Court Clerk Barbara A. Hogan. “The civil lawyers have had plenty of business, but they have to wait.”
The wait varies depending on the type of civil case, though most take at least a year before they’re ready for trial, and even then another six months could pass before a judge is available to hear the case, Hogan said.
“If you need two hours for a trial, I can give it to you in a couple of months or quicker if you can come in on a cancellation,” she said. “But if you need a week-long trial, we’re talking five or six months if you want a guaranteed slot.”
And if you’re waiting two or three years for a settlement to pay medical bills, legal fees or any other expenses often tied to lawsuits, the delay can be excruciating, said Concord lawyer James H. Moir.
“The brunt really falls on civil cases. Those get delayed and delayed and delayed,” he said. “The wait can be somewhat debilitating.”
‘Fewer judges … stretched far thinner than before’
An unexpected number of judges retiring and a delay in the rolling out of the Family Division, which was designed to free up more judge time for other civil and criminal cases in Superior Court, played significant roles in the shortage.
“The original plan was that the Superior Court judges would be reduced from the 29 we had authorization for in 2004 to 22 through the normal process of retirement that would roughly coincide with the expansion of the Family Division,” Lynn said. “That actually hasn’t happened. The timing didn’t quite work out right.”
Cases handled by the Family Division include divorce, child support, domestic violence, parental rights and some adoptions.
Superior courts in Cheshire and Hillsborough counties still handle marital cases, and won’t have Family Divisions any time soon, according to Lynn. He said that when the division finally arrives, the number of full-time judges in Cheshire County will be reduced from 11/2 to one.
“Marital cases represent a large part of our caseload,” he said. “We lost a good number of judges to the Family Division, because the caseload is being reduced.”
The county has one full-time judge, Brian T. Tucker, and a part-time judge, John P. Arnold, who spends six months out of the year in Sullivan County, where he is the only active judge.
There had been two full-time judges in Cheshire County before the Superior Court received a marital master, who is not a judge and is only authorized to handle marital issues, such as divorce and custody cases. A marital master makes a recommendation on how a case should be decided, but a judge still has the final say.
Shklar, the Newport lawyer, said the state may have made a mistake in creating the Family Division. He said marital masters were already handling many of the cases that are now being sent to the division, which spurred the reduction in judges.
“The theory was that once Superior Court judges no longer had to hear divorces they would have more time available,” he said. “It would have worked if these judges were hearing many divorce cases to begin with, but as it turns out most were already being heard by marital masters. Now there are fewer judges and they are stretched far thinner than before.”
Clerks feeling the pain of shortages, slim budgets
As litigants and lawyers struggle with delays, employees in Cheshire County Superior Court are dealing with staff shortages, tight budgets and antiquated equipment.
“We have a DOS-based computer system from 1992. We do everything on this system, from the actual data on all our files to notices of hearing and decisions,” said Hogan, the Superior Court clerk. “We’re working with that and we don’t have the optimum number of staff. I could use at least one more full-time person, preferably someone who has worked with DOS, which is very hard to find.”
To make matters worse, the already strained clerk staff has also been spending more time assisting litigants who can’t afford lawyers, Hogan said.
“The economy has created more litigants that do not have attorneys, which requires more staff time to educate them as to how they start the legal process,” she said. “We try to help them, but we cannot give legal advice and you have no right to an attorney in any civil case, no matter if you’re sued or want a zoning application overturned.”
The problem has become so widespread that state judiciary officials are talking about distributing forms and educational materials to courts across the state to assist people involved in civil suits without representation, Hogan said.
“Think about the economy now with people who are in debt and unable to pay their bills. Or people who work and are unable to collect payment for the work they’ve done,” she said. “For these people, hiring an attorney is the difference between paying their mortgage or not.”
The strain is also being felt in Keene District Court, where the civil clerk recently retired. Six remaining staffers are now handling the civil filings as well as their own jobs, Clerk Larry Kane said. He said he’s not sure when or if the vacant position will be filled.
“There are budgetary issues and I don’t know what the next step will be,” he said.
Lynch recently trimmed $1.6 million from the state judicial branch’s $70 million budget for fiscal year 2009.
Forty vacant clerical positions will not be filled and mileage reimbursement rates are being reduced for judges and clerical staff as part of the cuts.
Finding someone to take cases these days is hard
On the other side of the court system in the criminal arena, attorneys who are willing to take on court-appointed cases for meager pay are becoming a rare breed.
And as their numbers decrease, the likelihood of a defendant being set free because of a speedy trial issue increases.
Indigent defendants typically end up with a public defender, except when there is a conflict of interest or when there are multiple defendants. Then the defendant will be referred to a contract attorney, a private lawyer who agrees to handle a certain number of cases for the state. There are only two contract attorneys in Cheshire County.
“If the court cannot find a contract attorney, then they have to dredge up a private attorney from the streets,” said Shklar, one of the few lawyers in the area who accepts court-appointed cases. “The clerks have to call around trying to find somebody to take the case, and this certainly may slow things down.”
Money is the main reason lawyers are turning down court-appointed cases, Shklar said.
“You get $60 an hour, and it’s been that way since the early ’90s, when it was increased from about $30 an hour,” he said. “You’re paying for your rent, your staff, your fuel, your food and all the other overhead costs with that $60 an hour. … I do more than break even, but not a great deal more.”
Keene lawyer Paul G. Schweizer, one of the contract attorneys for the county, said if money were a factor in taking on indigent defendants, hardly anyone would agree to do the work.
“I’m a privately-retained criminal defense lawyer and the amount of money I get per case on contract is 10 to 15 percent of what I get on a regular case,” he said. “I do it because I feel it’s my responsibility to do some criminal defense work for people that can’t afford to hire their own lawyer. Somebody has to do it.”
Aside from the low pay, Shklar speculated that fewer law school graduates are deciding to become criminal defense attorneys because the job just isn’t as cool as it once was.
“‘Perry Mason’ isn’t on TV anymore,” he said. “Look at ‘Law & Order,’ do we ever win in that show? Prosecutors are in. I hate to say that, but do I think that has an effect on young people coming out of law school? Yeah.”
Also, young lawyers who are hired by private firms are expected to justify their salaries by bringing in profits, and that doesn’t happen when you’re working for $60 an hour, Shklar added.
“The shortage of court-appointed attorneys and judges are two features of the same problem. The New Hampshire court system is trying to do way too much with way too little,” he said. “I haven’t seen a dramatic impact yet, but sooner or later something will break. Someone will need an attorney and they won’t find anybody.”