Editor: Please tell us about your background and role at the Boston Bar Association.
Di Ianni: I have been practicing law for about 14 years. I was a litigator with a large Boston firm for several years and then served as general counsel of the Boston Public Schools from1996 to 2000. I now practice with the law firm of Rosenberg & Schapiro, P.C. in Boston.
At the Boston Bar Association, I am Co-Chair of the Administration of Justice Section. The AoJ focuses on topics involving the judiciary, the state of our courts, administrative law, and other important bench-bar matters. It also analyzes proposed bills affecting the administration of justice and our courts, and through its regular monthly meetings and special programming, serves to facilitate discussion on a host of issues involving the improvement of the legal system. Currently, we have about 110 members consisting of both practicing attorneys and judges, sitting and retired.
Powers: I have been a lawyer since 1970. Since 1983 I have been in Boston as the executive director of the Massachusetts Legal Assistance Corporation, a quasi-public entity that funds civil legal aid programs throughout the Commonwealth.
The Delivery of Legal Services Section is the entity within the Boston Bar Association that focuses on the delivery of legal services to indigent people in the Commonwealth. That has long been a core issue for the Association.
Editor:Earlier this month the BBA convened a forum on the budget crisis in Massachusetts and its impact on access to justice. Would you tell us about the budget crisis? Why has this come about?
Powers: We have a budget crisis in Massachusetts in large part because of the crisis in the national economy. Massachusetts has been hit harder than many other states. In addition, during the 1990s there were a number of tax cuts, which has meant that the current revenues of the Commonwealth are considerable lower - several hundredmillion dollars lower - than would have been the case if taxes had been maintained at their mid-1990s level.
Di Ianni: Here, as elsewhere, there is an on-going public debate about the best way for state and local governments to deal with hard economic times. Our current administration takes the position that it is important to hold down taxes on corporations and wealthy individuals in order to foster a positive business climate. There is, of course, another side to this debate, one that is more focused on ensuring the provision of adequate funding for critical government services by all necessary means.
Editor: What is the shortfall currently faced by the Massachusetts court system?
Powers: Judge Robert Mulligan, the manager of the trial courts, testified before a joint hearing of the Ways and Means Committees of both houses of the Legislature. He estimated that the governor's recommended funding level for the trial courts for fiscal year 2005 will be $36.2 million less than the current funding. This is a court system that in the last three fiscal years alone has lost 1200 of its 8000 employees.
Editor: Has technology been able to take up some of the slack?
Di Ianni: Although technology, which for the most part serves a different purpose, will not be able to replace the significant loss of court personnel over the past few years, it does offer the promise of more efficient, integrated court services for the people of Massachusetts. In order for this initiative to move forward, however, it must be adequately funded. There is concern that the implementation of our new statewide integrated case management system, an IT project known as MassCourts, now scheduled for full implementation by 2006, could be affected by a decline in funding in fiscal year 2005.
Powers: Judge Mulligan has called attention to the insufficient number of court stenographers in the system. We are at the point where we are beginning to see litigants and their attorneys appear in court ready for trial, a judge ready to hear their case and the case cannot proceed for lack of a court reporter. There is also a shortage of security personnel in the courtroom. In recent months there have been a number of incidents where criminal defendants attacked prosecutors and judges in the courtroom. These are not issues which technology is going to be able to address
Editor: Who allocates budget funding?
Di Ianni In Massachusetts, it is the Legislature that establishes the court system's budget. Although the Chief Justice for Administration and Management, or CJAM, has certain limited authority to transfer funds among the various line items of the state budget for the trial court department, there is concern that, overall, the judicial leadership does not have sufficient budgetary flexibility to properly manage the courts, particularly in difficult economic times when hard, data-driven decisions need to be made about how best to use scarce judicial resources.
Powers: The Legislature specifies the number of employees in each category for the individual courts, so even if the chief administrator is in a position to transfer funds, he does not have the authority to add to the approved number of stenographers, security personnel, probation officers and so on. There are really two problems here: the system does not have enough in the way of resources to carry out its mission; and the system is, in my opinion, unmanageable for lack of clear lines of authority.
Di Ianni: One of the current priorities of the CJAM with respect to court reform is the development of a statewide, court-by-court staffing model for the Trial Court Department. This study is to be released in June and we anticipate that it will enable us to better understand how resources and personnel are best allocated across the system. In addition, with the study in hand, we are hopeful that the discussion between the judicial leadership and the Legislature about the distribution of resources throughout the court system will become more data-driven and objective.
Editor: Why is the court system a target for budgetary cuts?
Di Ianni: I do not believe that the court system is a particular target or that the courts are bearing a disproportionate share of these cuts. Debt service and healthcare are very large budget items, and they do not allow for much latitude. What is causing such concern is the potential consequence of additional cuts in the coming fiscal year. The question has been raised by the judicial leadership as to whether our courts will be able to serve their core functions in the event the judicial branch is faced with more cuts in fiscal year 2005.
Editor:How much is being done to alert the public at large about this state of affairs?
Powers: The Boston Bar Association is engaged in a massive effort to inform both the bar and the general public about the meaning of these cuts. The Massachusetts Bar Association is similarly engaged, and the leaders of the judiciary are speaking out as well.
Di Ianni: The courts seem to lack something of the natural constituency that our public schools enjoy. The business community understands that it is critical for business and the economy to have a well-functioning school system; that is, that a vibrant economy requires people with the knowledge and skills developed through education. The connection is clear. It is, of course, critical for society to have a functioning court system as well, but the connection is not perceived as clearly as with the educational system. As just one of many illustrations, the lack of law clerks and other administrative support for our judges, for example, is contributing to more and more motions being decided months and months after argument or without any opinion at all - with parties being left without the benefit of the court's view of the merits of their cases. During these increasingly long periods waiting for rulings, clients frequently are on hold and in some cases are unable to proceed with business plans or development projects. As an example on the criminal side, I understand that due to inadequate state funding for qualified examiners in Sexual Dangerousness Persons hearings, there is concern that judges are being faced with having to release people for whom such hearings could not be held within constitutionally required time frames. These things adversely impact the general welfare of our community and the health of the business climate. I believe that it is important for the legal community to explain our court system and its role in our democratic society to our business community and the general public in order to promote a broad-based constituency for our courts.
Powers: The lawyers, and their clients, who show up for trial and must wait for a court stenographer in order to be heard are likely to turn to the American Arbitration Association or JAMS to resolve their next dispute rather than to the justice system. Without in any way faulting ADR, I must say that a public perception that the justice system is not easily accessible or is not working is dangerous for a democracy.
In February the Governor received a letter signed by the general counsel of 58 major corporations doing business in the Commonwealth which called upon him to maintain funding for the Massachusetts Legal Assistance Corporation. One of the principal points that letter makes is that lack of access to the judicial system harms business and harms society. I should mention the fact that the number of people eligible for representation by the legal aid community in Massachusetts who are facing legal problems has almost doubled since 1993, and that about half of those who apply for such representation - and who are eligible - are turned away for lack of resources.
Editor: Is there a constitutional issue involved here?
Di Ianni: Massachusetts has a proud constitutional history. John Adam's system for Massachusetts of a separation of powers between three co-equal branches of government became the model for our federal government. Article 11 of the Massachusetts Constitution says, in pertinent part, "Every subject of the Commonwealth ought to obtain right and justice freely and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws." One could fairly argue that access to justice is a constitutional right in Massachusetts.
Editor: What is your plan of action?
Do you think that you are at a crisis point now?
Powers: I was at the hearing of the Joint Ways and Means Committee at which JudgeMulligan testified. The members of the committee were sympathetic to the needs of the courts, and just recently the Speaker of the House acknowledged the need of the courts for at least their current level of funding. I am cautiously optimistic that we will not see further cuts. But, even maintaining the current level of funding does not address the increasing volume of work coming into the system. To cite but one example of this, the number of people who come to court without legal representation is on the increase, and that is having a dramatic effect on the workload of the system. In family court and probate matters it is estimated that in at least 80% of the cases one of the parties is unrepresented. Litigants who are not lawyers and who choose to represent themselves take up an extraordinary amount of time, of the clerks, of the judges, of lawyers on the other side. The reduction in court personnel exacerbates this problem. A task force is looking into the possibility of utilizing technology to help people prepare their own pleadings. In the meantime, the system is subject to great strain even if the present funding level is maintained.
Editor: Do you have any other solutions that you would propose?
Di Ianni: The Administration of Justice Section has established a work group to look at capturing cost and time efficiencies for our judges and users of our courts. The group will be identifying potential rule and policy changes and best practices of attorneys and judges in an effort to work up broad based proposals for capturing efficiencies within the system on a cost-neutral basis. The members of the work group have a broad perspective and include a sitting judge, large firm and small firm attorneys with both civil and criminal practices, and in-house counsel.
Powers: Likewise, the legal services community is attempting to look into what may be done to ease the problem of pro se litigants. Providing information on a website that deals with the many common questions pro se litigants bring to the courthouse may not solve the problem, but it may mitigate it. In addition, an informational website may help people assess the gravity of their particular issue and consider a variety of ways to resolve it other than appearing in court.