State of the Judiciary Address

Thank you, Ralph, and congratulations on your installation as Bar president.  Your remarks last night about what it means to be a “Jersey lawyer” made us all proud, and we very much look forward to working closely with you in the year ahead.

Chief Judge Simandle, colleagues in the Judiciary and the Bar.  Good morning, everyone.  I’m pleased to be able to report on the state of our Judiciary -- to discuss progress that we have made in a number of areas and to look to the year that lies ahead.

Let me start with an initiative that we announced a few months ago known as the Guardianship Monitoring Program.  Each year, judges are asked to appoint legal guardians for individuals who are incapacitated and can’t manage their own affairs.  Guardians are entrusted with enormous power in that regard.  They make personal decisions for the person they are assisting and have complete control over that individual’s assets.

We know that most legal guardians, by far, are loving family members and true professionals.  But that is not always the case.  We’ve seen notorious cases in New Jersey and elsewhere in which individual guardians have stolen hundreds of thousands, if not millions, of dollars, from those in their care.

We also know that the number of guardianship appointments in our State is substantial and growing. Roughly 2,000 guardians have been appointed annually in recent years, and we expect that that number will continue to increase as the populations ages, and as more people suffer from Alzheimer’s disease, developmental disabilities, and mental illness.

Altogether, the situation created a need for us to look with greater care at the growing number of legal guardians.  So we announced a project and asked volunteers to work with the Judiciary to help monitor the efforts of thousands of legal guardians -- by researching and reviewing the annual reports guardians must file with the Surrogate’s Office.

Volunteers will report what they see via a web-based computer database that was created in-house by the Judiciary’s IT staff.  Judiciary staff members will, in turn, relay problems to judges, who can bring guardians into court, possibly replace them, and in rare cases make referrals to prosecutor’s offices.

To date, in just a few months, more than 275 of our fellow citizens have volunteered to participate in this project.  That is remarkable.  Researchers are now at work in a number of counties.  They’re reviewing guardianship documents to lay the groundwork for the review of annual reports, and in the coming year we will continue to refine and roll out the project county by county.

It is our hope that this program won’t simply uncover and stop ongoing problems but will deter people from even considering committing fraud.  By doing so, the project can make a meaningful difference in the lives of people who cannot protect themselves.

This is but one example of the Judiciary’s efforts to respond to pressing needs that are tied to the work of the court system.  I want to thank Judge McVeigh for her work on this project for a number of years, Kevin Wolfe, Kristi Robinson, and others at the AOC, and, of course, the growing number of volunteers who will serve as part of a statewide effort.

We’ve also been examining some more traditional concerns about the operation of the court system, like the amount of time it takes to bring a case to trial in both the criminal and civil arenas.  Judges and court staff deserve a great deal of credit for resolving large numbers of cases. It is a reflection of their extraordinary dedication, hard work, and innovation each day, in the face of dwindling resources and judicial vacancies.

But speedy access to justice depends not just on the Judiciary but on our partners in government and in the private Bar as well.

There are consequences for all types of cases that don’t move as quickly as they should.

In criminal cases, there’s the human cost to defendants awaiting trial, some of whom are unable to make bail, to victims who hope to see cases resolved, and to witnesses whose memories dim with each passing day.  There are similar consequences in civil cases of not resolving disputes promptly including the growing cost of pretrial discovery.

So let me update you on certain steps that we’ve taken this past year starting with criminal cases.  More than a year ago, we assembled a group of eleven experienced judges and asked them to focus on the problem of delay in bringing criminal cases to trial.  We asked them to examine from a very practical perspective the steps that judges might take to address this issue internally.                  

Under the leadership of retired Appellate Division Judge Phil Carchman, former director of the AOC, and Judge Thomas Manahan, former Presiding Judge of Criminal in the Morris Vicinage, and now P.J. of Civil, the group has met periodically this past year to discuss subjects ranging from case management to the number and use of pretrial status conferences, from the discovery process to the operation of the plea cut-off rule, to the best use of judicial resources, and then some.

A related area that needs attention is the subject of bail.  A study published two months ago by Dr. Marie VanNostrand, commissioned by the Drug Policy Alliance, examined the New Jersey prison population throughout the state on a single day this past October.

It looked at the 13,000 total inmates on that day and found that twelve percent of the population consisted of individuals awaiting trial who could have been released had they been able to post $2500 cash or less for bail, or a bond with a ten-percent cash alternative of that amount.

We should keep in mind that the study did not indicate the average length of time that those individuals are held pretrial.  It just offered a snapshot of a single day.  That said, we need to consider the study in light of the problem of pretrial delay. What it means is that some inmates who are unable to make even modest bails are held in custody pretrial -- potentially for extended periods of time.  That’s not a healthy practice for a system of justice, and it needs our attention as well.

I discussed these concerns with the Attorney General and the Public Defender, who are vital stakeholders in any conversation about the criminal justice system.  Both have agreed to work with the Judiciary on the important issues of pretrial delay and bail.

So today, I am announcing the formation of a Joint Committee on Criminal Justice to examine these and related issues.  In addition to the groups mentioned, we will invite representatives from the State Bar, the Prosecutors Association, the Association of Criminal Defense Lawyers, and private practitioners to examine the subjects the judges’ working group has been discussing and others related to pretrial delay.   The Committee will also look into the question of bail, focusing on pretrial release programs for less serious cases.  This is separate from the Governor’s proposed constitutional amendment that would allow for pretrial detention.

I hope that out of the robust discussions that are sure to follow, the group will propose meaningful recommendations that enable us to improve our system.                  

Equally important to the citizens of our state is ready access to justice in civil cases, an area that raises different but important concerns as well.

We need to improve the pretrial process in a way that enables citizens to have their day in court and proceed to trial more promptly, that makes litigation more affordable and  reduces the cost of discovery, and that enables judges to oversee cases more effectively and expeditiously at a time of strained resources.

Those problems exist in courts throughout the nation, all of which need to make sure that litigants are not priced out of the civil justice system.  We now see a growing number of jurisdictions throughout the nation experimenting with innovative civil rules and procedures to address the concern that pretrial proceedings are too complex, too long, and too costly.

In Colorado, they are halfway through a two-year pilot project.  They implemented a simplified process for a broad range of civil cases with claims of $100,000 or less.  Their program calls for automatic disclosures three weeks after the filing of complaints and answers, a single judge to oversee a case for all purposes, prompt case management conferences, limits on expert reports and discovery in general, and early dates for motions and trials.                

Colorado is not alone. There are other projects in various federal and state courts in the country, which have their own variations.  Some have limits on the number of interrogatories, the number of requests for production and admissions, and the number of depositions for each party.  Some limit expert testimony per side.

In the Western District of Pennsylvania, for example, the parties can agree to submit expert reports to the jury in lieu of testimony.  In Utah, the rules of evidence are relaxed unless the parties stipulate otherwise. In Florida, parties get a trial date within thirty days of an accelerated discovery period once it’s cut off.

And there are limits to the overall length of trials and the component parts of trials as well -- from jury selection, to openings, to the amount of time that each side has to present its case:  eight hours per side in the District of Minnesota, and three hours per side in the State of Nevada.  There are also limits on post-trial proceedings by agreement of counsel.

This is only a partial list.  There are as many variations as there are states undertaking these types of projects. Some approaches may seem farfetched at first blush, others a welcome change.  I mention them for one reason only:  to stimulate discussion about how we might improve the civil justice process in a way that makes sense for lawyers and litigants in New Jersey.                        

For more than a decade, we’ve had an expedited jury trial program in New Jersey.  It’s a voluntary program that focuses only on streamlining the conduct of a trial.  If you’re not familiar with it, that’s not surprising because the project has hardly been utilized.  In eleven of fifteen vicinages, attorneys have made use of this project on fewer than ten occasions for the last several years combined.  In the other four vicinages, the program has been used, but only a bit more. We need to examine how to broaden the use of projects like this and how to expand the project beyond simply the trial phase to focus on the costly discovery process and other areas as well.        

With that in mind, today I am also announcing the formation of an Advisory Committee on Expedited Civil Actions.  It will be co-chaired by Judge Fernandez-Vina, the assignment judge of the Camden Vicinage who has long had an interest in reform in this area, and Tom Curtin, a preeminent leader of the Bar and former state Bar president.                    

They will work with a group of judges and experienced civil practitioners from both the plaintiff and defense side, including representatives from the state Bar and other groups.  We are asking them to develop a series of proposals that will enable the courts, attorneys, and litigants to reach our shared goal of achieving speedier justice for litigants at a lower cost.                  

In the end, the work of both groups will not only enhance the criminal and civil justice systems, it will also promote greater confidence in our system of justice.  I want to thank the committee members in advance for their vital role in these critical assignments.                

Let me briefly touch on the work of two other committees this past year.

The first is the Interbranch Advisory Committee on Mental Health Initiatives, which submitted a detailed report to the Supreme Court this past December.  The committee’s mission has been to improve the response of the court system to individuals with mental illness in New Jersey, and to develop research-based, cost-effective models of intervention, another issue that cuts across different areas of government.

The committee was chaired by Judge Wendel Daniels, and it presented seventeen detailed recommendations. They have been published, and I commend them for your review and comments.

We have also had a working group evaluate the new rule imposed in New York, which requires fifty hours of pro bono service before attorneys can be admitted to their Bar.  The aim of the New York rule, of course, is to increase pro bono participation, to help serve people in need of legal services that they cannot afford, and to engage law students early in their careers, hopefully to instill in them the habit of performing pro bono service for years to come.

There are two practical considerations for us in New Jersey.

First, of the 8,200 aspiring lawyers who sat for the last two Bar exams and are signed up for the exam this coming July, a full fifty percent of them are taking the exam in New York as well.  In other words, we estimate that fifty percent of New Jersey lawyers who recently and will soon pass the Bar will be obligated to perform fifty hours of pro bono work, in accordance with New York’s rule.  That means that our conversation, practically, focuses only on half of those passing the Bar.                      

Also, the Deans of Rutgers-Newark, Rutgers-Camden, and Seton Hall law schools, all of whom sat on the working group, estimate that a large majority of their students -- 75 to 90 percent -- already perform fifty hours or more of pro bono service through the law schools’ clinical programs and externships.  Plus all of the law schools have represented that they will be able to increase pro bono opportunities so that all students would be able to meet the proposed requirement.                

The working group issued its report on April 30th.  The Court ordered that it be published for comment just this week.

I thank both committees for their dedication and efforts, and I encourage interested members of the public to offer their comments, pro and con, so that the Court has the benefit of both as we address the recommendations presented.

It’s also important for the Judiciary to anticipate problems that may develop and take steps in order to attempt to avoid them.

All of us are very familiar with the devastation Hurricane Sandy caused.  At some point, the challenges the storm created may turn into litigation for a number of our fellow citizens.

Judge Grant and I have spoken with colleagues in Louisiana on both the judicial and administrative sides of the aisle to get a sense of how the Judiciary there responded to litigation that grew out of Hurricane Katrina.  We have also reviewed filings to date in New Jersey which are relatively small.  But we have reason, of course, to expect that there will be future lawsuits relating to potential insurance claims, construction litigation, and other areas.                      

We will continue to monitor the filings and will be prepared to expedite the processing of those cases if and when they arrive in large numbers.  Our purpose, of course, is to ensure that individuals who have been victimized by Sandy don’t suffer undue delays in the court system, and that we take appropriate steps to prevent that.

As always, we continue to work on innovative projects in the area of technology, which is a key priority.

To make it simpler for judges and practitioners to prepare jury charges in criminal cases, we now have 400 approved model criminal jury charges online.  The user-friendly program created by the Judiciary’s IT staff, again, in-house, will enable us to meet our goal of giving juries hard copies of instructions for use during their deliberations.

The same effort is underway for more than 300 model civil jury charges, and we anticipate those will be online and ready for use this fall.

In addition, we are moving ahead with e-filing in the Appellate Division.  The Offices of the Public Defender, the Attorney General, and the County Prosecutors will all be able to file criminal motions and appeals electronically by the end of this month.  That program will be expanded to private counsel and law firms for criminal and civil appeals and motions, on a voluntary basis, over the course of the next few months.

These and other projects all share the same goals:  to enable the Bar and the bench to serve the needs of clients, and to better serve the public.  Your insights in that regard are always welcome.  I encourage you to share your ideas, constructive suggestions, and criticism so that together we can try to tackle the challenges that lie ahead.

Finally, let me thank the Bar for working so closely with the Judiciary this past year on the Benchmarks Project.  We’ve launched a broad-based program for adult civics education in response to the alarming lack of public knowledge about how government works and the role of an independent, impartial court system.

We have now trained 200 attorneys and staff, a number of whom have already completed presentations for community groups throughout the State, with more scheduled for this coming year. I thank you for your continued efforts to help educate and inform our fellow citizens, and to foster a better understanding of the courts and the rule of law.

I hope that you enjoy the balance of the program as the conference draws to a close today, and that you take advantage of the camaraderie that this gathering offers.  Thank you all very much for the opportunity to speak with you this morning.