State of the Judiciary Address

Good morning everyone. Thank you Tom for welcoming Chief Judge Simandle and me. It is an honor to participate in this convention with the gracious and esteemed leader of our federal courts, and I'm grateful to be here with him.  

This annual convention hosts an impressive array of programs, gives us a chance to learn about new topics and brush up on some that we're familiar with.  And in an era of cell phones and texts and emails that we are expected to be able to respond to 24/7, what a treat to be able to come together face-to-face and interact with friends and colleagues.  

If you can measure the success of a conference by the vibe in a room, the good vibe that you felt walking into this room says this is an outstanding success, and that's from a group that arrived early for a program that you don't get CLE credit for.  So that tells you something.

I want to thank two colleagues in the room and in particular Miles Winder, who has completed his term as president is smiling although looking down right now. Miles has done a marvelous job as a thoughtful advocate on behalf of the attorneys in our state and has been a steadfast friend and champion of the judges. We thank you for all that you have done Miles.

And Tom, newly installed president last night, he was so scrupulously  said that he said to me he cannot be referred to as president in this session because under the bylaws he doesn't become president until this session ends. So I’m going to break the rules and congratulate President Prol and say how much we look forward to working with you this coming year on a variety of projects.

We witnessed a number of important and positive changes in the practice of law this past year and there are more in store for the year ahead. I’d like to talk to you about several of those changes this morning that affect both practitioners and the public.

Last month, the court issued administrative determinations in a number of areas that grew out of the work of three committees, the Ad Hoc Committee on the Uniform Bar Examination chaired by Justice Jaynee LaVecchia with retired Justice John Wallace as vice chair,  the Special Committee on Attorney Ethics and Admissions chaired by retired Chief Justice James Zazzali and Vice Chair Professor Paula Franzese and a working group on ethical issues involving metadata in electronic documents chaired by Anne Patterson with vice chair Tom Scrivo, chief counsel to the governor. 

If you were a start like peeking at the back end of those committee reports, you'd see an impressive roster of members in each group. Representatives of the court system, of the bar, of academia volunteered their time in an admirable way to address thorny issues that need attention. I’d like to thank each of the dozens of members of those committees for the thoughtful contributions that they made and invite each of you to let us know if you have an interest in serving in that capacity in the future.

Let me start with an announcement about the UBE, the Uniform Bar Examination. As everyone in this room knows from personal experience, the New Jersey bar exam has for years consisted of two parts:  the first the multiple choice exam that we still lovingly refer to as the multi-state, a test of basic areas of law that is prepared by the National Conference of Bar Examiners, and second a series of essay questions put together by the New Jersey Board of Bar Examiners, which also tests laws of general application and not laws specific to New Jersey.

Last October, the Supreme Court formed a committee to carefully examine the UBE and monitoring survey, its use on the national scene. The UBE has several parts: the multi-state, an essay component, which like our current exam does not test for laws specific to New Jersey, and a performance test made up of writing tasks designed to assess practical lawyering skills. Forty nine states use some or all of the UBE, and before New Jersey's decision last month, 21 states used the UBE in its entirety.

After careful study, the committee found that the UBE was a reliable, accurate and fair way to measure competence to practice law and that it covers content similar to what the New Jersey exam has historically addressed. The committee concluded there was no reason to think that the UBE would affect the pass rate in our state differently and no reason to expect the disparate impact on any group of test takers.

So for those and other reasons, the committee overwhelmingly recommended that New Jersey adopt UBE. The Supreme Court agreed after considering comments from the public and the bar. What are some of the reasons, in addition of the exam, but first the simple fact that we live in a world today that is quite different than in decades past. Millennials who passed the bar in 2016 are likely to change jobs more frequently, move about the country at a greater rate as they begin their careers and unfortunately to graduate with increasingly higher levels of debt.  

The UBE attempts to respond to a number of those concerns by allowing young lawyers the benefit of portable exams that they can transfer among a number of states for a period of time. It also reduces the financial strain on applicants who seek to sit for multiple exams in different states, which test similar materials, and that’s especially true here in New Jersey because we know that three-quarters of applicants for the New Jersey bar sit for more than one exam. Fifty percent seek a concurrent admission with New York, 25% with Pennsylvania, and that led to a practical problem once the New York Court of Appeals announced that it would move to the UBE this July of 2016. We understood because we were told that we could not expect New York would continue to transfer multi-state score exams to New Jersey after this July’s exam, which meant that if we had done nothing, half of the aspiring lawyers who historically applied to both the New Jersey and New York bars would've been faced with this challenging choice: do they sit for the New Jersey exam alone or do they sit for the New York exam alone,  a choice that doesn't serve recent graduates well or the communities in which they hope to practice.

The interest in better serving the public of course extends beyond the metropolitan area. With portable scores that the UBE offers, lawyers are better able to move to underserved areas and provide needed legal services there as well.  I'm in touch with Chief Justice Saylor of the Pennsylvania Supreme Court throughout the process to keep him apprised of the steps that we have been taking in New Jersey, and I hope for the sake of the many applicants who hoped to sit for both exams simultaneously that there will be a way to accommodate them in the future as well. The New Jersey Courts’ adoption of the UBE last month means of course that the exam format will change, but it doesn't mean that we will cede control of the bar admissions process in our state. We’re not changing the passing score, which is set to the mathematical equivalent of what we have been using for years now, we’re not changing the educational requirements or the character and fitness certification requirement which will all continue to be governed locally.

So if someone sits for the UBE in another state and wishes to become a member of the New Jersey bar, they must meet the same high standards for admission that New Jersey has set and go through the same rigorous certification process that exists today. It’s also worth noting that the court will monitor the pass rate and admissions data for the next three years to make sure we’re on the right track, and we welcome your comments and thoughts all throughout that period.

Increasing mobility in the modern practice of law is a part of another discussion the court addressed last month. The special ethics committee reviewed a series of amendments that the ABA had made to the Model Code of Professional Conduct, the model rules.

The committee touched upon a number of ethics issues, questions prompted by new technology, admission standards, and perhaps most challenging of all, the longstanding debate about admission by motion, which have been studied on off for more than three decades going back to the 1983 Committee on Bar Admissions, which recommended a change in the rule back at that time.

New Jersey aside, 40 states throughout the nation plus the District of Columbia offer admission by motion, and the thoughtful work of the committee illustrated the deep divide that has existed in our state on this issue. But what’s become clear is that in the 21st century, more and more lawyers need to follow their clients and their cases out of state, out of New Jersey, in the same way that out of state lawyers need to do the same here. The court recognized there were legitimate economic concerns that can be raised for some New Jersey lawyers, but we couldn't identify a reasonable basis grounded in the public interest to continue to decline to adopt admission by motion.

As a result, the court last month adopted that practice subject to a number of restrictions. First, the out-of-state must have passed the bar exam in another state and have practiced in another jurisdiction for five of the last seven years; second, the out-of-state lawyer must be admitted to a state that allows for reciprocity with New Jersey; and third, that lawyer must demonstrate fitness and character to practice law and must complete a course on New Jersey ethics and professionalism.

Once again, those changes don't cede control of the admissions or the disciplinary process. Instead, they reflect the realities of the practice of law today in our state and in our nation. 
And I want that the committee for its review of this challenging question and also for the guidance  it offered in a number of other important areas as well.

The third committee, headed by Justice Patterson, immersed itself in the issue of metadata and related ethical questions. Now if you don't know what metadata is, is this report is for you. You should read it. You should take a course on it, and you should learn what is at stake before you discover that you have shared details or strategy about your case by inadvertently including that information in electronic documents that you've sent out.

As you can glean and as so many in this room already know, metadata is information that is embedded in electronic documents that when we look at a hard copy of the document, we cannot see it. It can include track changes, comments, details about when those changes were made and by whom, can reveal privileged information, work product and proprietary information, and you can find it in documents that we send to adversaries in the practice of law and the judges send out to the parties in the form of opinions or letter opinions.

Since that covers just about everybody in this room, I imagine yours may have perked up a little, so we all need to take steps. Bottom line is to scrub documents before they go out and more generally to understand the issue before it becomes a serious problem for us. If you haven't looked at the changes to the rules in this area, which are designed to help protect sensitive client information and to clarify the obligations of attorneys if they receive metadata, please do so.  I encourage you to do so as soon as it’s practical.

Another area of change that will soon be upon us relates to criminal justice reform that is underway, particularly in the area of bail reform and a new speedy trial act. I discussed these both at length last year at this time, so I’m just going to try to summarize a few points briefly this morning it .

There will be as you no doubt have heard two primary changes to the law come January 1 of 2017, just months away. First, our current bail practice relies heavily on defendants posting money or a bond in order to be released, and that disadvantages poor defendants who can’t afford to make bail and sit in jail even if they pose minimal risk of flight or minimal risk of danger.

Under the new law, we will shift to a risk-based system where defendants who posed little risk will be released on conditions pretrial and monitored by pretrial services officers without having to post bail. High risk defendants, on the other hand, those who pose a great risk of danger to the community or are a serious risk of flight can be detained pretrial and held without bail.

The second major change is a new speedy trial law that will try to ensure that criminal matters are resolved on a timely basis and do not linger for many years. That approach is better for defendants who have charges other heads, for witnesses whose memories dim with time, for the state, which always has the burden of proof, and for victims who seek closure in the cases in which their involved.

The new statute requires defendants to be indicted within 90 days of arrest and be tried within six months of indictment, with appropriate exclusions of time for things like motions, plea negotiations, consent and other reasons. 
These changes result from the cooperative efforts of all three branches of government. They comprise the most substantial changes to our criminal justice system that the state is seen in decades, and I believe they will make for a better and a fairer system of criminal justice in our state.

Since the law has been signed, the Judiciary has been hard at work in a number of ways to be ready to implement it. We work with the Arnold Foundation, a criminal justice foundation, to develop an objective risk assessment tool that has been validated by looking at and testing tens of thousands of actual New Jersey cases to the tool that's been created, a tool judges will use to help determine the level of risk that each defendant presents based on a series of factors particular to the individual.

We’re preparing for the start of a new pretrial services agency that will operate in each vicinage which we estimate will need to prepare 70,000 evaluations a year again to assist judges as they make decisions about release pretrial.

We’re trying to use technology in a smart way to get data about a defendant's past rapidly, to check fingerprint databases electronically all in order to present as full a picture as possible  about a defendant for a judge within 24 to 48 hours after arrest.

We’re at work in a variety of changes to the court rules and have engaged in extensive outreach with the Attorney General’s Office, the Public Defender’s Office to try to train the many stakeholders whose success is essential to this new law.

Much more work needs to be done, both leading up to January 1 and after, and we know that significant challenges lie ahead for us. Change is a general rule is hard, and the changes we've been discussing are substantial. Beyond that, these changes will place a number of practical demands on our criminal justice system. Here just two examples: in thousands of cases a year beginning next January,  judges will be called on to rule on motions that the state will bring to detain defendants pretrial. Each motion will require a hearing, and some of those hearings may last hours. There’s also a potential appeal in each one of those cases.

As to the merits of the charges, tens of thousands of cases will need to be resolved within the timeframe of the Speedy Trial Act.  That means prosecutors, public defenders, private counsel will need to prepare to present their cases on a more timely basis, and the judges will be called on the schedule meaningful trial dates and will need to be in a position to actually start the trial on those scheduled dates.

And we are very fortunate to have a superb group of judges and staff who ready and willing to take on these challenges and so many of them are here this morning. I thank you for your presence, and I can't thank you enough for your dedication, for your skill, and for the level of excellence that our judges bring to work each and every day.

But make no mistake,  to meet this enormous challenge going forward, we need enough judges on the bench to handle the additional responsibilities in the area of criminal cases at the same time as our judges strive to continue to meet the needs of the public overseeing motions in trials in criminal, in civil, in family and in general equity parts as well.

That's not an easy task, which is why recent developments and been so wonderful.  I want to thanks  the governor, the Senate president, the Senate Judiciary Committee and its chair and the entire Senate for a number of important actions that have been taken in recent weeks: the nomination and confirmation of an associate justice to the Supreme Court; the nomination and confirmation of five new Superior Court judges; the reappointment of 12 sitting judges who've had hearings and have been voted out of the Senate Judiciary Committee already, NOIs and nominations by the governor to reappoint 11 more sitting judges, with hearings for many  scheduled for this Monday; and the very impressive list of notices of intent to nominate 17 new judges that the governor filed Wednesday, less than 48 hours ago, judges who will be able to hit the ground running in Mercer, in Essex, in Middlesex, where the need has been so great.

This is very positive news, very welcome news that you are certainly welcome to applaud. If the 17 new nominees are confirmed as we all hope they will be, it will reduce the Judiciary's overall vacancy level to 27.  I know that the Governor's Office and the Senate are at work on some additional nominations in the near future as well, and all that too is also very good news because as the governor and senate president and others appreciate, we need to see to it that the overall level of vacancies is at a low number and that it is important to sustain that low level going forward to meet the needs of our justice system and the public as a whole, again not just in criminal matters, but in all areas.

With any group as large as 400-plus judges, there’s a natural amount of turnover each and every year. Most of the time, we can anticipate retirements in advance because we usually know when and where those vacancies will rise. The challenge is to fill those vacancies on a timely basis, which requires early cooperation among individual state senators and the governor's office because the process typically begins with a local senator making a recommendation to the governor to begin the vetting process.

In some parts of the state, that transition has been seamless as vacancies arise; in others, we've seen delays for years, and that would be very problematic if it were to happen in the coming years.  With criminal justice reforms just around the corner, the consequences going forward would be quite real. If we do not fill vacancies rapidly and have enough judges on the bench, we will not be able to succeed with the bail reform effort, we will not be able to meet the deadlines of the new speedy trial law, and that's why we are so pleased with the attention of the governor the Governor's Office, the Senate president, the Senate Judiciary Committee, its chair and the entire Senate has paid to this problem over the past month and more, and we offer our help in any way possible into the future.

And in the past year, a number of individuals have written and spoken about the advances in New Jersey's criminal justice system in a very positive light. Our collective task is to make sure that we live up to that promise, and the Judiciary looks forward to continuing to work closely with the executive and legislative branches in that regard.

As always, we welcome your help, your insights, your suggestions, your support as partners of the Judiciary from the bar. Your comments only make for a stronger system of justice in our state.

With that in mind, I want to thank you again for inviting Chief Judge Simandle and me to participate and speak with you this morning. I hope you'll enjoy the remaining programs today and thank you very much.