Chief Justice Speech - August 8, 2003

AUGUST 8, 2003

Good afternoon. I want to thank Pauline Gee for inviting me to speak with you today. She is the immediate Past President of the Foundation of the State Bar of California, a former member of the State Bar of California's Board of Governors, and a former attorney member of California's Judicial Council. The many hats Pauline has worn reflect the several constituencies here today from the National Conference of Bar Foundations, the National Bar Presidents, and the National Bar Executives — all of whom demonstrate the many ways in which the bar and its leadership contribute to the legal profession and to the public we all serve. And congratulations to each of the well-deserving recipients of your awards.

I wish to extend a warm welcome to the many of you who are visitors to California. So far, we have not broken off and slid into the Pacific from earthquakes or other calamities of nature, and hopefully we'll survive our man-made disasters of budgetary deficit and electoral turmoil as well.

California traditionally has been a trendsetter — for the good, the bad, and the ugly. So it will be my pleasure to share with you today some of the major innovations in the administration of justice in California achieved during the last few years.

Our legal system has been facing an unprecedented set of challenges during the past few decades - requiring both the bench and the bar to develop new approaches and responses. Caseloads continue to grow in number and complexity. In California, our population is comprised of individuals from every part of the world, and as of a year ago, long before it was predicted, we became a state in which no one ethnic or racial group forms a majority of our population. I am proud to say we are a leader in programs dealing with bias — race, ethnic, gender, and other forms of bias — in the justice system.

Expectations about the courts and their ability to affect and protect the community have increased - but many now coming into contact with our judicial system are unfamiliar with how it works or the resources available to them. At the same time, the entertainment industry portrays more drama set in the courtroom, which often creates unrealistic expectations about the legal system.

Budget woes are affecting government at every level, and courts are no exception. Our ability to make the best use of technology, to experiment with promising innovations and implement new procedures, and to reach out to the community and increase access, are all threatened.

The real story of our courts and how they are responding to these challenges lies, I suggest, not so much in the matters that make the headlines, but in the everyday cases in which courts make decisions of critical importance to the thousands of individuals affected. Court systems and bar associations nationwide have been exploring means to respond to the changed environment in which we operate, while continuing to improve the service we provide to our communities - and at the same time protecting the rule of law. In California, our judicial system has been better prepared to meet some of the most urgent challenges because of several major reforms undertaken over the last several years. California's bar associations - both statewide and local - share our focus on improving access to justice, and have been crucial partners in these successful initiatives.

During the last several years, our judicial system has undergone a sea change in its operations and approach — affecting everything from its financial structures to increasing direct, user-friendly services for litigants. A few core guiding principles have provided the impetus for embracing and advancing these changes.

First, improving access and fairness in the judicial system has been the major priority of the Judicial Council of California for the past decade. The council is the constitutionally created entity charged with overseeing and setting policy for the statewide administration of justice, and as Chief Justice of California I serve as its chair and appoint its judicial members.

Another motivation is our increasing awareness that if the bench and the bar do not actively plan for the future and determine our own course, others will be all too willing to step in for us, with results that might not always be desirable.

And one final impetus has been the need for our courts to ensure the trust and confidence of the public we serve in order to maintain the independent judiciary that is so fundamental to our system of governance.

Three major structural shifts have provided the foundation for many of our new efforts. In achieving these reforms we owe much to two individuals who are present here today — our very able Administrative Director of the Courts Bill Vickrey and his Deputy Director Ron Overholt. By the mid-1990's, trial courts in California were funded by a patchwork of state and local funding. This bred not only fiscal uncertainty for all trial courts, but led to inadequate resources for many courts due to variations in the ability and willingness of the various counties to adequately fund their courts in the face of competing demands for public services. The quality of justice administered in California had come to vary from county to county.

During my first year as Chief Justice (in 1996-1997), I visited the courts in each of California's 58 counties. It soon became apparent that the situation for many trial courts was dire. They had been forced to cut back services, lay off employees, reduce hours, and in some instances were on the verge of completely shutting down because they had no money to fund their payroll obligations. That first year, I twice had to go to the Legislature to obtain emergency funds to keep courts from shutting down. Providing a system of justice is a core function of the state, and it seemed only logical that responsibility for adequately funding that system should be borne by the state.

In 1997, at our urging, the California Legislature adopted a comprehensive state funding bill that generally has lived up to expectations - even in the face of the current unprecedented budget crisis. Overall, state funding has provided a stable, adequate base that permits courts for the first time to plan for the future. We can consider statewide needs, evaluate trends, and allocate money to meet pressing needs.

Problem areas remain - for example, we still are making the transition to greater court control over court employees who formerly were under county supervision, and we are reviewing how security is provided and whether we can work with the sheriffs' offices charged with protecting our courthouses to reduce the enormous charges we pay for courthouse security.

Something else that became apparent during my visits to the courts was that there was a great deal of duplication and inefficiency in the courts' use of judicial and administrative services due to the coexistence of two levels of trial court — the superior courts and the municipal courts.

Less than a year later in June 1998, the California electorate, by an overwhelming majority, adopted our proposal to amend the California constitution to allow the two levels of trial court, on a county-by-county basis, to vote to unify into a single superior court. Within several months of the enactment of the new measure, the vast majority of the courts agreed to merge the two levels of courts. Unification reduced the number of separate trial courts in California from some 220 to 58, one in each county.

Our court system, by the way, is the largest in the western world, surpassing the federal system with more than 1600 judges, supplemented with an additional 400 commissioners and referees, and 19,000 court employees, and a budget of 2 1/2 billion dollars. The creation of a unified state trial court system has enabled courts to reduce duplication and increase efficiency in everything from clerk's offices to jury pools and has opened up a host of new opportunities for flexibly using all judicial personnel and administrative resources.

The third and final major structural reform was achieved last fall, when the Legislature and the Governor approved our proposal to establish a process for transferring the ownership and management responsibility for California's 451 courthouses from the counties to the Judicial Council — an undertaking that is being financed by a filing fee increase and a shift in revenue flow from the counties to the state. The process will take 5 years and involve a transfer of 3 to 4 billion dollars in real estate.

The result of these three statewide measures has been a flurry of innovation and creativity — both statewide and locally — to improve the services our courts provide to the public. As these structural changes were taking place, courts also were paying more attention to the needs and interests of the community. We realized that to meet the many unique and intensive challenges facing us, our court system institutionally had to examine its practices critically, be open to change, and plan ahead in order to be able to meet the public's needs in the future.

California's judiciary keenly recognizes that success in improving the administration of justice cannot come from conversations conducted solely within the confines of our own judicial chambers. Thus we have invited in the community and in turn have reached out to the community around us. We realize that success in meeting the legal and judicial needs of the community requires the public's involvement, effort, support, and participation - and that working with others in the court system, particularly the bar, is critical as well.

For many individuals, the problem is one of achieving meaningful access to the judicial system despite their limited financial resources. For others, it is one of feeling confident that the court system is able to provide an environment in which their issues can be determined effectively and justly.

As you are all aware, the availability of affordable legal assistance even for the middle class is often an illusion, and access to legal assistance for those at the bottom of the economic ladder too frequently is viewed as a luxury totally out of reach. As a result, individuals facing crises that may affect everything from their ability to earn a livelihood to their right to care for their children find themselves required to navigate a legal system that largely is designed for and by specialists in the field — lawyers and judges — or even worse, to stand outside the system, ignorant of or intimidated by the first steps they need to take to avail themselves of its services.

At the same time, individuals with complicated cases to resolve want the assurance that courts can meet that challenge as well. And in the light of the increasing popularity of private judging, the judicial system has stepped back to evaluate what it can do to make the climate in our public system of justice more hospitable to all.

The inability of some individuals to afford legal assistance is not a recent phenomenon. But the need for our commitment and creativity has never been greater. The courts increasingly are viewed as the forum for resolving a host of society's problems — some of them in areas for which the adjudicatory system may not always be the best mechanism. A strong and independent court system is indispensable to our democracy. Yet every day, individuals appear in our courts who have no familiarity with our system of justice. Some 224 languages are spoken in our state, and 4 per cent of our residents speak no English. As one of our court's opinions explained not long ago: "A recent sample of superior courts in 9 counties indicates that in one fiscal year, the courts provided court interpreters for 64 or more languages 'literally from A to Z (Albanian to Zapotec).' It is estimated that more than 100 languages are interpreted in the courts of California." Access is meaningless without the ability to understand the proceedings.

And every day, individuals whose experience with the system of justice in their nation of origin is one of oppression and fear come to our courthouses uncertain what to expect and apprehensive about what they will find. These circumstances create very real and immediate problems — and the challenge is to make our judicial system fulfill its obligations to these individuals and to all the others whom we are called upon to serve.

California's Judicial Council, in partnership with the local courts, the bar, and the local community, has implemented a number of measures to improve services to litigants in need of assistance in their appearances before the courts. For example, I have, through letters and personal appearances, urged every attorney in California to contribute to pro bono efforts — and every judge to facilitate such efforts. Here in San Francisco, along with the Chief Judge of the federal District Court, Marilyn Patel, I have participated in efforts to urge local law firms to sign the pledge, promising to provide a specified number of hours of pro bono assistance. And one of my favorite annual appearances is presenting the Pro Bono awards at our State Bar Convention each fall. Every year, I am always inspired and often awed by the range of talent and dedication displayed by members of the bar.

Beyond encouraging and applauding the traditional efforts of legal aid providers and pro bono contributors, the Judicial Council, individual courts, and the state and local bar associations have taken a number of concrete steps that already have had a positive impact.

Three years ago, for the first time, the state of California, as part of its budget process, allocated $10 million directly for legal services to the poor. The allocation is jointly administered by the Judicial Council and the Foundation of the State Bar of California. These funds have been used for joint efforts of legal services programs and the courts to establish self-help clinics, create pilot family law projects, and provide other innovative services for needy litigants. Cooperation between the bench and bar at every level has made this fund a huge success.

In one vital area, family law, the presence of counsel is a rare commodity. In some parts of the state both sides are unrepresented by counsel in two thirds of these cases. The Judicial Council's staff arm, the Administrative Office of the Courts, has established a nationally recognized Center for Families, Children, and the Courts, that has been at the forefront of innovations in handling the problems of these special constituencies.

Unified family courts also are gaining popularity in our state. They allow related problems that once were addressed separately in juvenile, divorce, criminal, and probate courts, to be considered together in order to provide comprehensive, global solutions to better serve the needs of families and children.

At the local level, courts have installed self-help centers complete with simplified forms to assist pro per litigants in following the necessary steps in a court case. In cooperation with local bar associations, courts may offer limited legal advice to assist pro pers with forms and understanding proceedings. One county has an award-winning mobile self-help van that travels to remote parts of the county to provide services to individuals who otherwise could not make it to the courthouse.

Other courts have held one-day special sessions for veterans and the homeless, in which representatives from the courts, social services organizations, other government offices and veterans agencies provide one-stop problem-solving for everything from outstanding warrants to claiming benefits or obtaining housing or substance-abuse counseling.

Our courts also have continued to expand alternatives to traditional court proceedings in order to meet the needs of particular types of litigants. For example, we are providing more domestic violence services, with the cooperation of district attorneys, public defenders, probation departments, and social services agencies and other institutions. And the Center for Families, Children, and the Courts has developed a broad array of materials, including informational booklets and videotapes available in several languages, to assist those seeking domestic violence restraining orders.

Starting last year, the voters mandated a new approach to drug offenders, requiring initial treatment — as opposed to punishment — for certain offenders. The Judicial Council and judges with experience in the growing drug-court movement in this state collaborated with all those involved in implementing this measure and making it work.

Other programs, such as peer courts for teenagers and juvenile mental health courts, continue to provide alternative forums to administer justice that look beyond the current charge in order to prevent future crimes. I have visited several collaborative court sessions and have come away hopeful and very impressed by the dedication of the persons on both sides of the bench who work in these programs.

I also am pleased to recommend to you a information resource on our Judicial Council's Website. The "self-help" page offers links to free and low-cost legal services. It has guides to law libraries, explains alternative dispute resolution alternatives, provides simplified court forms, and describes generally what goes on at a courthouse, and where the local courthouse and the local domestic violence shelter is located.

The site, which recently also became available in Spanish, links to resources specifically designed to provide unrepresented litigants with general and practical information about family law, traffic court, juvenile law, domestic violence, small claims, guardianships and conservatorships, and a variety of other topics.

This website is not intended to replace the assistance of counsel — or to suggest in any way that having a lawyer is not the best way to go. But it recognizes the reality that until we can have the resources available to provide the assistance every litigant needs, all too many individuals will be unable to vindicate their rights without some guidance. The site has been enormously popular, garnering millions of hits - and not just from the general population. Librarians, journalists, and even lawyers also consult it. This site illustrates our courts' interest in taking advantage of the latest technology. And that leads me to a description of other newly adopted measures intended to help those who come in contact with the courts.

Our Judicial Council at its meeting last month adopted for recommended use in California a brand new set of civil jury instructions rendered in plain English. The release of these new instructions occurred after six years of careful and comprehensive work by a council task force - and the release of the set of the proposed criminal instructions is planned for next year. This is part of our overall effort to make our system make sense — a project that includes composing new, user-friendly court forms, and reviewing and reorganizing court rules.

We also have focused on improving the conditions of jury service, to meet the concerns of many lawyers that jury pools do not adequately represent a cross-section of the community. We have adopted a one-day-or-one-trial jury system. Formerly, jurors were on call for up to 2 weeks, and in many counties they were required to spend all of that time at the courthouse while awaiting selection. A juror now needs to appear only for one day and, if not selected to serve on a trial, is relieved of any jury service obligation for a year.

We also have substantially increased juror compensation. It is still a far from sufficient sum, but we intend, as fiscal circumstances for the state improve, to seek additional funding for this purpose in order to help broaden the composition of the jury pool.

In December 2001, the Judicial Council expanded public access to electronic trial court records while protecting the right of privacy. The balanced plan adopted by the council was the product of a multi-year study that broadly surveyed a range of interests and considered the implications of adopting different approaches.

The California Supreme Court, as well as our intermediate courts of appeal and many of our trial courts, can now be reached on-line. The latest appellate opinions appear electronically within seconds of their being filed at the clerk's counter. Our court's minute orders and weekly summary of opinions also are available immediately. Information on an individual case can now be found by case-name or case-number, and the docket sheet can be viewed on-line. A person can register to receive electronic notification of activity in a particular case, and one of our courts of appeal is beginning to invite litigants to provide briefs and records on appeal in electronic format. A pilot project for electronic filing in the trial courts already is in progress.

The judicial branch also is deeply involved in a project to develop a fully integrated technology for the criminal justice system. In short, we are enthusiastically embracing the use of new tools to broadly disseminate information about court proceedings and to enhance access to our judicial system — and to related entities.

Using a more familiar electronic medium, the California Supreme Court has permitted some oral arguments to be televised. And we have taken our show on the road, as well. In addition to our regular oral argument sessions in San Francisco (where the court is headquartered) and Los Angeles and Sacramento, the court has held special sessions in other parts of the state in order to give the public increased exposure to the work of the court and hopefully an improved understanding of its role. An integral part of this program has been the organized attendance of students — both through the rotation of groups into the courtroom during oral arguments, as well as televising the proceedings into classrooms — where local lawyers and judges act as facilitators.

But we are aware that improving access to justice is not limited simply to measures designed to assist the indigent or students. Courts must be responsive to all constituencies that need their services — and many of the programs I already have described fit that description and benefit businesses and other litigants for whom meaningful access primarily is a question of competent, effective, and reasonably speedy resolution. Changes in jury service and the use of technology will have an impact on these matters as well.

In addition, we have considered the special needs of those involved in complex civil litigation. An ongoing complex civil litigation pilot program in 6 counties has proved very valuable. This program developed after a Judicial Council task force studied and recommended against establishing specialized courts confined solely to business cases, urging instead further study of the possibility of improving the management of a wider range of complex litigation, including mass tort cases.

In response, the Judicial Council created the Complex Civil Litigation Task Force, charged with finding ways for courts to manage these cases more efficiently and effectively. Based on the task force's very helpful report, the Judicial Council took a number of actions — including authorizing publication of a deskbook, approving a curriculum for judicial education in complex case management, providing specialized rules of court and forms, proposing amendments to statutes, and creating a continuing Judicial Council oversight committee.

The ensuing pilot program has resulted in a great deal of knowledge about what works to meet the unique needs of this kind of litigation — and that knowledge is being disseminated statewide.

As I mentioned, our state has 58 counties and more than 2000 judicial officers. Many practitioners cross county boundaries on a daily basis. The need for consistent rules to accommodate the realities of practice today has led the council to adopt uniform rules in several areas of practice applicable statewide. We are continuing to work toward expanding this approach to more and more subjects areas and procedures, in response to an enthusiastic response from practitioners.

Cross-county practice is not uncommon — and neither are legal actions and practitioners that span state and even international borders. The California Supreme Court has appointed Task Forces to study whether changes in the rules concerning practice by out-of-state practitioners in California should be changed, and most recently to develop proposed rules to implement the recommendations made to the court. Those draft rules have been circulating for comment and we anticipate this fall a report and recommendations on specific measures to address multi-jurisdictional practice concerns. Throughout, the challenge has been to balance the needs of practitioners and the protection of the public, and our court is looking forward to reviewing the work of this implementation committee.

As you can see, improving access to justice is far from a one-size-fits-all venture. New courtroom tools, expanded forms of assistance, manuals for improving case processing, and the designation of judges and courtrooms assigned to handle complex litigation — these all are part of our efforts to respond to current needs through creative solutions.

California's judicial system is engaged in a wide-ranging and unprecedented exploration of how to better meet the needs of the public we serve. The results have been exciting, and the energy and commitment of our bench and bar — and the cooperation of our sister branches of government and the community — have been most encouraging.

In fact, in California, we have been extraordinarily lucky in the close cooperation we have seen from the bar. As mentioned, the court system and the Foundation of the State Bar share responsibility for the multi-million dollar Equal Access Fund. In addition, in 1996, a task force created by the State Bar of California released a report concerning the relationship between poverty and justice in our state. The report detailed disturbing findings about the difficulties many Californians face in solving a host of civil legal problems - and the inadequacies in our state's response. In 2002, a follow-up report by the California Commission on Access to Justice, sponsored by the State Bar and Foundation of the State Bar, reported on progress to date. It reflected many accomplishments, but did not hesitate to highlight the many areas in which further effort is needed. The State Bar's continuing attention to the important issue of access to justice, and the Bar's many initiatives in this regard, have greatly benefitted the people of our state.

At the local level, bars in California such as the Bar Association of San Francisco, are noted nationwide for their pioneering work in providing legal assistance. Courts can go only so far in guaranteeing meaningful access - the assistance of members of the bar and the contributions of state and local bar associations and their leaders, such as yourselves, give substance to this goal for many members of the public.

We realize that in order for our courts to perform their core judicial function in our democratic system, it is incumbent on us to ensure that we deserve the trust and confidence of the public whom we serve. We are working hard to do that. And never has this effort been more important than at the present, when recent events have both challenged and reinforced our obligation to adhere to the crucial role of the rule of law in our democratic society. The fundamental precepts of professionalism and service remain strong and in the forefront of any description of the role of an attorney in our society. With the assistance of a committed bar, we all can make a difference at every level of our society.

Here in California, as I have suggested, we are fully invested in continuing to improve access and ensure fairness. Every day, I feel fortunate to work with so many individuals on the bench, in the bar, and in the court system as a whole, who are dedicated to providing the best administration of justice possible. And I very much appreciate the work you and your associations do to promote these efforts across our nation.

Thank you again for the opportunity to speak with you today. It has truly been a pleasure.

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