Wisconsin Lawyer
Vol. 82, No. 2, February 2009

The state of Wisconsin has serious fiscal problems that threaten our judicial system and the public’s right to fair and impartial trials. Prosecutor pay is absurdly low, case loads are too high, and high turnover and job vacancies are the norm. Meanwhile, private bar public defenders are still being paid at an abysmally low $40-per-hour rate. Funds for our legal services providers have been slashed, and programs and positions will be cut in a system that already struggles with the sheer volume of people in desperate need of civil legal services.

As bad as the situation in Wisconsin is, a recent radio news story from New Hampshire really startled me. The New Hampshire Supreme Court has ordered the suspension of all jury trials for a month or two in early 2009 as a cost-cutting measure.

But wait, I argued with the radio announcer, they can’t do that! Jury trials are a fundamental hallmark of the justice system in this country. Trial by jury is guaranteed by the U.S. Constitution. Defendants charged with certain crimes are entitled to speedy trials. I wanted to hear more about how the New Hampshire bar would handle the situation.

The New Hampshire Chief Justice said the decision to suspend jury trials was made because the court prefers to save money this way instead of by laying off court staff, fearing that such lay-offs might become permanent and hurt the justice system more in the long run than would a brief suspension of trials. Obviously, the dramatic step of suspending jury trials was designed to try to save the status quo.

In other news stories, court officials gave reports on the number of cases that would have to be rescheduled. One lawyer complained that his client’s trial, already delayed because of court congestion, would be further delayed.

Because the suspension of jury trials was ordered by the chief justice, it is reasonable to assume that New Hampshire lawyers won’t petition their supreme court to lift the order. But, might they file cases in federal court? Certainly, if that kind of litigation occurred to me, a family lawyer, wouldn’t the trial lawyers of New Hampshire be talking about filing federal litigation? Such a lawsuit could force an interesting constitutional showdown.

Surprisingly, the news stories out of New Hampshire do not discuss federal lawsuits or mandamus actions. Instead, the stories on the subject quote prosecutors, defense lawyers, and civil trial lawyers about the harm to the public or to their clients. One civil trial lawyer bitterly complained about the fact that when jury trials resume, the system will prefer criminal trials over civil. The lawyer told of his client, an accident victim, awaiting trial on a tort claim. Pending resolution of the trial, this alleged victim has no income or other resources and can’t pay for his medications. The delay of this trial jeopardizes the client’s health.

I am disappointed that not one of the stories quoted any mediators or arbitrators about the availability of alternate dispute resolution processes. If any New Hampshire mediators have seen an opportunity to increase business in this unfortunate situation, their press releases haven’t been picked up by the media.

It is possible that out of economic catastrophe the practice of law might change. Even before the budget crisis in New Hampshire, the vast majority of civil disputes were not going to trial. Can we find a way to improve settlement processes in the absence of resources to try cases? It is clear that what clients want are pragmatic and prompt settlements, and research shows that some avoid lawyers because they believe that lawyers create and extend the controversy.

In Canada, ethics rules require lawyers to advise clients of the availability of mediation and collaboration as well as litigation to resolve their disputes. The ABA Model Rules do not contain such a provision. Shouldn’t the New Hampshire lawyers be talking about other processes? Shouldn’t we be doing the same?

Will the fiscal crisis create leverage for change in the way law is practiced? Yes. Lawyers should lead the way.

Wisconsin Lawyer