Minutes Access to the Courts Sub Committee February 17, 2006 Legislative Office Building Concord Attendance: Al Cantor, Ken Barnes, Ginny Martin Cheryl Killam, Clyde Terry. The Committee continued its work on the draft recommendation document. The committee felt that its work was completed on the Physical Access issues and would now turn its attention to the remaining areas. The Committee wanted to make sure that the resource document provided by Cheryl be included in the final submission of the report even though it exceeds the required items. Draft Report from the Sub-Committee on Access to the Court I. A. Physical Accessibility I. B. Fund full staffing for traditional civil legal services. Rationale: Meaningful access to the New Hampshire Courts is limited by the inability of many people to pay for traditional legal services. Economic and procedural barriers present challenges for a growing percentage of our population. It is estimated that among low-income citizens, only a fraction of those involved in civil matters have their legal needs met by the current levels of legal assistance services. Moreover, a growing segment of the moderate- and middle-income community find themselves unable to afford or access conventional legal representation, which is a significant factor in the growth of pro se litigants. This rise in self- representation not only impacts proper legal representation, compromises justice, and deprives litigants of their full rights, but it serves to undermine the smooth functioning of the courts by introducing delays and inefficiencies – a process that adds yet further to the legal costs for all. We have come to realize that, before we suggest new and innovative methods and strategies for dealing with economic barriers to legal access, we should recognize that our current network of civil legal assistance is excellent, and in many ways a model in terms of the quality of representation and the level of cooperation among providers. That being said, the system is woefully overburdened, and by some estimates only 20% of those in need of services are receiving them. This is a delivery system that is tried and true – but lacks the resources to achieve full success. We urge that there be a commitment to full funding. II. To commit New Hampshire to a “civil Gideon,” – that is, to recognize that, in the same way that criminal cases that may result in the loss of liberty compel the state to provide an attorney for a defendant, so too should civil cases that could result in significant loss – such as the custody of a child or the loss of a home – compel the state to provide legal representation. Rationale: This in many ways defines who we are as a society. Should people lose custody of children or be evicted from their home simply because their legal opponent has more money? This recommendation is not a particular strategy so much as it is a philosophical commitment to a fair society, with liberty and justice for all. III. To support and promote alternative delivery systems for legal services, including: a. Greater reliance on non-lawyer professional services; b. Developing a “clinic model,” where volunteer attorneys meet one-on-one with clients during specified evenings; c. Promoting alternative dispute resolution (ADR); and d. Providing services so that clients involved in uncontested divorces can get paraprofessional support to guide them through court system. Rationale: We must do all we can to provide citizens with ways to get fair resolution to their legal issues in the most effective, expeditious, and efficient way possible. If a client can avoid costly and time consuming court costs by working through alternative dispute resolution, or if clients can get guidance from a modestly paid paralegal rather than an attorney, or if a client can get free legal advice in a way that does not take a great deal of time on the attorney’s part, these all serve justice and reduce the burden on the court system and our citizens. IV. Create ways to support pro se litigants, including a. “Unbundled” legal services, where attorneys can work with a client on a portion of a legal case, but not with respect to the entire case; and b. The expansion of a “case manager” system, ideally with a well-trained case manager in each court, who would interview clients, and either refer the client to legal services providers, recommend and facilitate alternative dispute resolution, or provide procedural guidance and support if the client chooses to move forward pro se. Rationale: Our conclusion is that a little bit of a lawyer is better than none at all. While the ideal, of course, is to have complete representation by an attorney with a thorough and integrated knowledge of the client and his/her needs, the fact is that a shrinking percentage of the population is in a position to hire an attorney in that manner. Rather than pretend that the pro se population will go away, we need to find ways to support and facilitate the pro se process. Allowing attorneys to provide unbundled services will provide critically important representation to many litigants who otherwise would not have a lawyer at all; and building a case manager system would be a cost-effective way to triage pro se cases, deflecting many from the court system (and increasing the efficiency of those that remain). V. Explore and encourage innovation in how regular legal services are billed, including: a. Alternatives, where appropriate, to a billable hour system; b. Fee shifting and sharing in family law cases, where one party is “moneyed” and the other is not; and c. The use of legal insurance. Rationale: Supreme Court Justice Stephen Breyer compares the legal profession’s obsession with billable hours with “drinking water from a fire hose.” He and others argue that the billable hours system puts lawyers on a treadmill and seriously impacts their ability to perform pro bono work and other public service. Some argue that time billing also creates a gap between the value of services and their cost – that is, that it drives up the cost for those who are indeed paying for legal services, or who hope to. We recommend that courts intervene, where appropriate, to encourage and explore other structures for compensation. We also encourage a possible emulation of the New York state law that allows for fee shifting and sharing in family law disputes where one party is “moneyed” (has significant financial resources) and the other is not – as a way of fairly sharing family assets to both parties, but also as a way to de-escalate legal disputes and encourage settlement. And we would encourage the exploration of a system of catastrophic legal insurance, akin to catastrophic medical insurance: there are clear parallels, in that only a very few in our society could afford the out-of-pocket costs of either a medical or legal disaster. Perhaps it is time to encourage the development of a vehicle for covering the latter. The Committee adjourned.