Chief Justice Marshall highlights “turbulent” budget challenges in “Annual Address” at Bench-Bar Symposium

Issue November 2008 By Bill Archambeault

In her “Annual Address to the Legal Community,” Supreme Judicial Court Chief Justice Margaret H. Marshall warned that the “turbulent” national and state financial crisis requires “drastic” cuts in the state’s court system.

Speaking at the Massachusetts Bar Association’s third annual Bench-Bar Symposium at the John Adams Courthouse in Boston on Oct. 22, Marshall told the audience of more than 100 people that she and other court officials had identified millions of dollars in cuts. While they were able to avoid layoffs and furloughs, the cuts have led to an across-the-board hiring freeze; travel restrictions and other cost-cutting measures have also been made, she said.

“The measures we have taken are strong. You will see evident strains on the system. But there is one thing on which we will not economize: our core mission to do justice,” Marshall said. “Our courts have weathered economic distress before. We must, and we shall, manage our way through this current crisis.”

District Court Chief Justice Lynda M. Connolly and Housing Court Chief Justice Steven D. Pierce were tapped to head a Fiscal Task Force to identify additional savings and ways to improve efficiency.

Unfortunately, Marshall said, it’s during times of financial crisis that demands on the courts tend to surge, with increases in divorce filings, foreclosures, evictions, debt collections and criminal cases. Gov. Deval Patrick explained the urgent need for drastic cuts on Oct. 1 to Marshall and Chief Justice for Administration and Management Robert A. Mulligan; they pledged their cooperation.

“We are committed to shouldering our fair share of budget cuts while safeguarding the essential functions necessary to maintain our mission and constitutional imperatives,” she said.

In return, Patrick has committed “to the full transferability” of funds from one Trial Court department budget to another, Marshall said, a flexibility that court officials have sought for years as a way of managing the shifting needs for limited court resources in a precise, rapid fashion.

“We welcome and applaud that commitment, which is essential to making sure that the difficult measures we take today will forestall even more drastic measures in the future,” Marshall said. “I ask for your patience. I ask for your understanding. And as always, I ask you to join in partnership with judges, clerks, registers, court staff, probation officers and security personnel to keep our justice system, and our hard-won institutional reforms, moving forward.”

The bench-bar partnership
Marshall praised the collaboration between the judiciary and the bar, in general.
“Only when the bench and the bar work in partnership can our system of justice flourish,” Marshall said. “I am optimistic, even in these challenging times, that the pursuit of excellence will continue, because in Massachusetts, the partnership between the bench and the bar has always been strong.”

MBA President Edward W. McIntyre praised Marshall. “The Massachusetts Bar Association thanks Chief Justice Marshall for her collaborative leadership in efforts reflecting the best interests of the Massachusetts legal community and those we serve.”

Good communication is key, she said, praising the MBA’s cooperation with the courts in general and specifically on the series of “Open Dialogue on Court Practices,” which has drawn more than 800 attendees to five locations across the state since the program was launched in May. The “first-of-its-kind endeavor,” she said, has generated suggestions that are already being implemented.

“To me, the greatest value of these Open Dialogues has been the literally hundreds of discussions that have taken place concerning ways to improve the many procedures found in everyday practice in all the courts,” she said. “Before the end of the year, each Trial Court department will have identified changes to be implemented, drawn from the views of those who attended.”

Among the suggestions being implemented are:
Reducing unnecessary court trips of counsel and providing more efficient court interaction;

A pilot project using teleconferencing within the District Court has been implemented in Western Massachusetts;

Videoconferencing pilot programs being pursued in the sheriffs’ offices in Essex and Worcester counties; and

Developing a pilot internship program enlisting college students majoring in foreign languages to expand interpretation services in clerks’ and probation offices.

Critical role for surveys
Highlighting the importance of feedback generated by the Open Dialogue forums, Marshall also emphasized the role that evaluations of courts and judges are having in improving the system. About 8,000 people, including lawyers, jurors, litigants, police officers, witnesses and defendants, have completed surveys about their experiences in more than 90 courthouses across the state as part of the state court system’s Access and Fairness Survey Project. By the end of 2008, she said, each of the state’s 106 courts will have been evaluated and the results posted.

“We want to learn from every group of court users. Administrative efficiency means little to those who feel alienated from, or have no meaningful access to, our courts,” she said. “Responses from attorneys, court employees and jurors will not be ignored. The results of the surveys will not be left on a shelf to gather dust.”

She also urged the legal community to fight through “evaluation fatigue” and continue making judicial evaluations to give a more complete picture of a judge’s performance. So far, 98,500 evaluations have been made by attorneys, 23,400 by court employees and 11,900 by jurors.

SJC Associate Justice Margot Botsford is leading a group of Trial Court chief justices and senior court administrators on developing a “comprehensive” professional development program for all Trial Court judges, including elements like:
comprehensive training for every new judge, customized for each department;


peer observation;

teaching best practices; and


“We recognize that every judge, no matter how stellar of reputation, has room for development and growth,” Marshall said, noting that evaluations can be humbling but are important for judges to hear.

“I know from firsthand experience that candid performance evaluations can be immensely helpful,” she said. “Recently, I undertook to have a specialist review my performance at oral argument. Others of my colleagues have done the same. It was challenging to hear a critique of everything from my style of questioning to my posture and nonverbal cues — challenging but valuable. Justice and the perception of justice are conveyed in ways both large and small.”

Other initiatives
Marshall said the judiciary is also working on other improvements, including the publication of the Massachusetts Guide to Evidence, which will be available in November through the Flaschner Judicial Institute and on the Web sites of the Supreme Judicial Court, Appeals Court and Trial Court.

Collecting existing evidence law in Massachusetts in one volume was undertaken based on a unanimous recommendation by the MBA’s House of Delegates in 2005.

“Having reviewed the guide, I know that it will make the law of evidence more accessible and understandable to the bench, bar and public,” Marshall said. “I thank the MBA for its leadership in this important effort to advance the delivery of justice in Massachusetts. The guide will serve not only attorneys, of course, but it will be valuable to self-represented litigants.”

Marshall said she expects the number of self-represented litigants to continue to rise, especially given the economy, a trend that the bench and bar will need to continue to work on. She acknowledged the MBA’s help in implementing the Pilot Project on Limited Assistance Representation, which trains attorneys to provide the service. A report on the program’s effectiveness is underway, but Marshall said she has heard anecdotally that the program is a success.

“I am grateful for your partnership in addressing this challenge,” she said. “Your efforts surely enhanced the quality of justice in Massachusetts.”

The growth of self-representation, she said, is only one of the challenges facing the courts, citing the increase in both the elderly population and those living in poverty.

“These challenges for the courts, among others, are urgent,” she said. “If we are to maintain the trust of the public, we cannot afford to play ‘catch-up’ while everything changes around us. I look forward to continuing the courts’ partnership with the organized bar in responding creatively to the challenges of doing justice in the 21st century.”

At the conclusion of her address, Marshall answered several questions from the audience.