Courts Funding is An Essential Aspect of Democracy

In the November 2010 issue of the ABA Journal, Stephen N. Zack, President of the American Bar Association wrote that "while dockets nationwide experience unprecedented caseloads, funds available to state judiciaries have decreased significantly." According to Zack, there have been budget reductions, layoffs, pay cuts, hiring freezes, and furloughs. Zack notes that there has been " enormous upswing in the number of federal filings [yet] Congress declined a request from the Judicial Conference of the United States to create 69 new federal judgeships." Zack points to the fact that there have been great increases in bankruptcy filings, and other problems that stem from economic problems, including divorces. Zack also points to the problem of increased pro se litigation due to the inability of individuals to afford lawyers. Zach cites to a study in which 78% of judges say that lack of representation has a negative impact on the "way court operates," which I interpret to mean impact on efficiency and fairness. Zack points to the American Bar Association Task Force on the Preservation of the Justice System to " highlight the debilitating impact of underfunding on the American justice system" by holding hearing and meeting with legislators. Although I can not speak to the specific work of the Task Force, I applaud the efforts, and fear that the goals of the task force could even be less ambitious than necessary. I have read several articles from leading public interest attorneys about the effects on the justice system of the decreasing funding that the system is getting. However, I fear that the arguments made imply that the system was satisfactory prior to the funding cuts, when in fact they were not. Court funding needs to be increased to pre-decrease levels, and increased beyond that. Courts should be funded sufficiently so that cases move along at a pace reasonably appropriate for the litigation involved. Often judges have so many cases on their plate that it can take months to rule on motions, and to schedule trial. I once worked on a case that was ready for trial at one point, but was repeatedly delayed so that the case was ultimately heard seven years after the lawsuit was filed in court. Consequently, many of the witnesses forgot the facts and each party had to pay their attorneys additional monies to remind themselves of the facts before trial.

These delays also give an unfair advantage to parties with more money, more stability, and other resources, e.g. corporate parties. Individuals are at a disadvantage when there are great delays because witnesses forget, move away, and lose touch. Corporation with more institutional experience interacting in the justice system can institute safeguards. Additionally, defendants can find ways to hide their assets if they the case is likely to take years before a possible judgment. A factual assessment of the effects of these delays would be reflected in the phrase "justice delayed is justice denied."

Also, judges with dockets that are too large have an incentive to dismiss as many cases as possible, to try to work towards a more manageable docket. I certainly don't mean to allege that any judge would intentionally dismiss a meritorious case just to feel less overwhelmed. I do mean, however, that judges simply don't have enough time to concentrate on each case as thoroughly as they like, thus causing the possibility of having to rush and thus making a mistake. (Along these lines, I would love to commission a study to review trends in appellate litigation. I believe a study of appellate litigation would show more claim and showing that judges simply did not adequately review their filings or think through the legal problems presented. Again, I don't mean to disparage judges, as they are not given adequate resources.

These delays have an effect on current litigants, but also on the society as a whole. When members of society don't have confidence that the justice system will address grievances, people with true grievances might not raise them, or worse, might take matters into their own hands, or in the hands of more criminal elements.

These delays did not start with the current round of court de-funding. We in the legal community had learned to accept that delays in the justice system were an inherent part of our justice system, thus ignoring an already-serious problem. As stated in other blog entries, when court funding is not adequate to provide for enough clerks to assist pro se litigants with the procedural mechanisms of filings, it is more likely that less knowledgeable pro se litigants will find their filings struck due to procedural problems that could have been avoided with adequate clerk attention. There are two resulting problems caused by this. First, when it becomes next to impossible for pro se litigants to proceed and succeed, the court system becomes accessible only to those who can afford counsel. Second, when this happens, people resort to less honorable means other than court systems to resolve their problems--which effectively harms and could destroy any peace and security in society.

References:

http://www.abajournal.com/magazine/article/more_than_a_budget_line_item/ http://www.americanbar.org/groups/justice_center/task_force_on_the_preservation_of_the_justice_system.html