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William T. (Bill) Robinson III is president of the American Bar Association and member-in-charge of the Northern Kentucky offices of Frost Brown Todd, LLC.
If you need information about the city of Philadelphia courts, you can place a telephone call or log onto their website—or you can “friend” the courts on Facebook, sign up for their Twitter feed, or receive alerts on your cellular phone. Philadelphia is just one of many court systems around the country that is adapting to the new digital age of law.
These efforts are not born simply from a desire to make the judiciary more accessible or to integrate new technologies into the courts’ functionality. Rather, they have arisen from a more complex and challenging set of circumstances: ever-growing caseloads and a chronic underfunding of court systems nationwide.
According to a Court Statistics Project report, the vast majority—approximately 95 percent—of all legal cases are filed in state courts. In 2008, the most recent year for which data is available, states reported 106 million incoming trial court cases. That figure surpasses every record from the preceding 35 years. Remarkably, the number of incoming cases per general jurisdiction judge often reached into the thousands. South Carolina, with one judge for every 100,000 residents, topped the list with a caseload of 4,842 incoming nontraffic cases per judge.
As caseloads have ballooned, court budgets have deteriorated. According to the National Center for State Courts, which is working closely with the ABA on these issues, 42 states cut court funding in fiscal year 2011, and budget cuts continue in 2012 from New York to California.
The judiciary is a coequal branch of government. Yet across the United States state judiciaries must try to operate on less than some individual departments in the executive branch. Too many of our judiciaries receive as little as 1 percent or less of the state budget pie, and few states receive more than 3.5 percent.
Last year, the American Bar Association created the Task Force on Preservation of the Justice System, cochaired by noted lawyers David Boies and Theodore B. Olson, who come from opposite ends of the political spectrum. Over the last year, under Boies and Olson’s bipartisan leadership, the task force has collected stories detailing how our state courts have been harmed by inadequate funding.
At least six states close their courthouses at least one day a week because of inadequate funding. Fifteen states have reduced the number of hours the courts are open to serve the public. Compounding the backlog of cases and consequent delay in our courts, 32 states have delayed filling much-needed court administration positions. Twenty-six states have delayed filling critical judicial vacancies.
State courts around the country confront uniquely challenging circumstances. A municipal court in Ohio announced that no new cases could be filed unless the litigants brought their own paper to the courthouse. In Georgia, the budget is so lean that courts solicit pen and pencil donations from vendors like LexisNexis and Westlaw. An Alabama judge asked the charitable arm of a local bar association to donate money to the court to help pay juror stipends.
Right now, California courts are reeling from the elimination of $350 million from the state’s judiciary budget, the largest reduction in California’s history. San Francisco will receive a supplemental infusion of cash, but the city says it still must close 25 of 63 courtrooms and give pink slips to 40 percent of the court staff.
A story in the New York Times emphasized just how overburdened Sacramento courts have already become. The lines there are often so long that people are actually bringing lawn chairs to use while they wait. It is predicted that, with additional budget cuts, it may take as long as five years for a civil trial and more than a year for a divorce.
The presiding judge in San Francisco, Katherine Feinstein, warned that “the civil justice system in San Francisco is collapsing,” and that “the future is very bleak for our courts.”
This crisis affects the average American who files for divorce, seeks custody of a child, or fights to save a home from foreclosure. A conviction is a step in the process of healing for a victim of a crime, or the beginning of rehabilitation for the convicted. In the extreme, a courtroom is a “safe place” that brings peace of mind when a restraining order is needed.
Likewise, businesses, including the vast number of small businesses that are the backbone of this nation’s economy, depend on the reliability and timeliness of the justice system—whether they seek injunctive relief to protect IT trade secrets, wish to settle a dispute over patent infringement, or counter a claim for alleged breaches of data privacy.
The dependability of our courts has made the United States the most secure arena for business growth and international investment. Economists have testified at ABA task force hearings that uncertainty from court cuts costs businesses, and ultimately states, sorely needed revenue. Businesses are discouraged from opening in places where the judiciary is financially unable to operate effectively and in a timely manner.
Courts need to be sheltered from budget squalls to fulfill their constitutional responsibilities. At a more fundamental level, the basic definition of judicial independence demands that courts be open and accessible.
Only a united community can address this crisis. When judges, lawyers, court employees, bar associations, and stakeholders (a term that applies to every business and resident of our nation) come together, we can begin the long process to restore our justice system.
However, like the hardest problems, neither the solutions nor the work required to achieve them is simple. Ultimately, only significantly increased investments in our courts can shore up the foundation of our justice system. If there is any lesson to be learned, it is that we as a legal profession must always remain vigilant against future cuts.
Like Philadelphia, other individual jurisdictions have made extraordinary efforts to adapt to this changing fiscal environment. Courts are expanding the use of technologies to increase access, improve efficiency, and find savings in their systems. In many states, the payment of fines and fees is now conducted online, and courts are actively using electronic filing to better manage document systems.
In California, San Bernadino’s Superior Court has instituted an automated mail payment processing system. In Connecticut, the implementation of telephone translation services—also known as “Language Line”—in clerks’ offices, probation offices, and other locations allows the courts to provide access in a more cost-efficient manner. Iowa has implemented “eJuror,” which allows jurors to respond to summons and qualification questionnaires online.
The Boston Bar Association credits the web-based MassCourts with increasing the timely disposition of cases by more than 15 percent. The expanded use of videoconferencing in Pennsylvania has saved taxpayers an estimated $21 million annually in defendant transportation costs. Again, courts are doing their part to demonstrate efficiency and innovation.
Criminal justice reform could provide another solution for cost savings. At any one time, half a million individuals sit in jail just awaiting trial, having not yet been convicted of a crime. The cost of our supervised population is a staggering $9 billion. At a time when states are strained to provide basic services, and even court copying machines are treated like an extravagance, it is incumbent on lawyers and judges to find ways to save money through criminal justice reform in the states.
The ABA has identified many reforms that keep communities safe while lessening costs to already overburdened state criminal justice systems. In five areas in particular—pretrial release of accused low-risk offenders; the decriminalization of minor offenses; re-entry support programs; expanded reliance on parole and probation; and community corrections—states can make commonsense changes to their process of jurisprudence and rehabilitation that will provide significant savings opportunities.
We must also draw attention to the declining role of civic knowledge. A survey conducted for the ABA in 2005 showed that nearly half of the participants were unable to correctly identify the three branches of government as legislative, executive, and judicial. Fifty-seven percent could not name a single current justice on the US Supreme Court.
In a participatory system of government, the electorate must be informed. If we fail to educate our children about history and public policy process, we will set up the next generation of voters for failure. It is also equally important that we instill in young people an appreciation of the fundamental principals that have guided out country. A focus on civics education will drive a renewed dedication to the preservation of our justice system.
The ABA hopes to draw attention to the crisis, offer recommendations that can help courts and state governments adapt to new budget realities, and call on legislatures to provide needed funds. The work the association has completed to increase awareness among the media, policymakers, and the public has been overwhelmingly successful, thanks largely to the willingness of each of our partnering groups to volunteer their unique stories. Now we begin to move past just educating.
Our next task is to persuade those who hold the power of the purse that adequately funding our judiciary is crucial. Lawyers alone cannot make that case. We can and will continue to build constituencies for court funding in states across the nation. With the strength of stakeholder support, we cannot fail. With access to justice at stake, the risk is too great. After all: no courts, no justice, no freedom!