Are businesses and individuals giving up on the courts? Yes, and it’s ‘a disaster,’ judge says

Are businesses and individuals giving up on the courts? Yes, and it’s ‘a disaster,’ judge says
ABA Journal Law News Now
By James Podgers
August 8, 2013

As the funding crisis for justice services continues to grind on, state courts are facing the need—some might say they have the opportunity—to reassess their efforts to provide access to the widest possible range of individuals and businesses seeking to resolve legal disputes.

The interplay between funding shortfalls and access issues was the focus of a program held Thursday morning in San Francisco as the 2013 ABA Annual Meeting began. The meeting is being held at the Moscone Convention Center and numerous other locations around San Francisco through Tuesday.

Even before state legislatures began cutting budgets in response to the recent recession—including funding for the courts and related justice services—questions were being raised about whether more businesses were turning to private dispute resolution services as a more efficient alternative to the courts and whether more individuals were simply avoiding the courts because they couldn't afford legal and filing fees. But the recession only intensified those concerns.

More and more people are giving up on the courts, "and that is a disaster," said Wallace B. Jefferson, chief justice of the Supreme Court of Texas. "If we don't help people protect their rights, no one else will do it."

The program, titled Are Courts Dying? The Decline of Open and Public Adjudication, was co-sponsored by the ABA Standing Committees on Federal Judicial Improvements and Judicial Independence.

Increasingly, judges, lawyers and court administrators are thinking about the ramifications if fewer parties use the courts, said Tani Cantil-Sakauye, chief justice of the California Supreme Court. In part, these discussions have been prompted by the fiscal crisis, she said, but they also need to go on regardless of financial conditions. "We're overdue for change," she said.

In California, for instance, there was "a brief discussion" about permitting nonlawyers to assist low-income litigants bring their cases to court, Cantil-Sakauye said. "It raised a can of worms about who will license and regulate these people. And besides, why should it be the poor who have to rely on nonlawyer providers?" (In Washington state, a program has been in place for about 30 years that licenses nonlawyers to engage in limited legal practice. Responsibility for operating the program was recently transferred by the legislature to the state bar association.)

Cantil-Sakauye said courts shouldn't start thinking about their future operations on the assumption that funding cuts in recent years will become a permanent fact of life. She said 2013 is the first year since the start of the recession in which state revenues are higher than projected, and similar upticks are occurring in some other states, as well. Officials of the other government branches "recognize the need to rebuild the courts," she said, but those efforts will require a partnership among all the branches that also recognizes the need to bolster other programs that saw their budgets slashed.

"We have hit bottom, and we're starting to climb," Cantil-Sakauye said, "but it will be a slow climb." Read more