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Stephen Zack, president of the American Bar Assn., compares the effect of recent state budget cuts on the U.S. courts to injustices perpetrated by the secret service in Cuba, the country he fled as a teenager after revolutionaries seized his family's factories. "I am not speaking in hyperbole," he says. "You can't get equal justice if the courts are closed."
Liberals have long bemoaned the problem of strapped courts, arguing that limited resources disproportionately affect the poor. Now, with states facing record budget deficits and trying to pare spending, courts around the country are trimming hours, laying off staff, and delaying trials. Businesses are watching with increasing concern. "It's beginning to bite widely," says David Boies, a trial lawyer at Boies, Schiller & Flexner who is best known for representing Al Gore in the 2000 Florida vote recount case that went before the Supreme Court.
Boies is teaming up with his former legal adversary Theodore Olson, an attorney at Gibson Dunn and former Solicitor General under President George W. Bush, who argued opposite Boies in Bush v. Gore. Together with Zack, they're enlisting lawyers to urge states to provide more resources for the courts and building a bipartisan task force that includes litigators, former judges, and the general counsels at corporations such as Oracle (ORCL), Sony (SNE), and Clorox (CLX). Efficient, quality courts are essential, says DuPont's (DD) general counsel Thomas Sager. "The longer it drags out, the cost of representing the company increases."
The uncertainty causes litigants to settle out of court and makes them hesitant to pursue cases in the first place, says Boies. Some economists argue there's a broader impact as well. The Los Angeles Superior Court, the largest trial court system in the country, planned budget cuts of between $79 million and $140 million from 2009 through 2013. A 2009 study by the research firm Macronomics found that those proposed cuts could result in almost $30 billion in economic losses. The damage stems in part from layoffs at the courts but primarily from an estimated $6.3 billion in reduced legal fees and over $7 billion in losses at businesses, which have to hold reserves that can't be invested elsewhere while their cases are still under way.
Last year, 32 state court systems saw reductions to their funding, according to the National Center for State Courts. This year more than half of those face further cuts, some by as much as 14 percent. The recession hit courts with a double whammy: They're "flooded with cases from the bad economy, yet denied the resources needed to deliver justice," explains David Udell, who runs the National Center for Access to Justice at Cardozo Law School. In downturns, courts see increases in cases ranging from foreclosures to petty crimes. Filings in Georgia, for example, doubled from 2005 to 2008. The next year legislators cut 11 percent from the court's budget.
In mid-April, Alabama's chief justice ordered the state's courts to close on Fridays to keep costs down. She also cut in half the amount of time allotted to civil jury trials and shaved a quarter off the time spent on criminal jury trials. In New Hampshire, the chief justice essentially suspended civil jury trials altogether for a year. The courts in Georgia rely on unpaid student interns to staff the clerk's office, and workers use free pens from legal vendors such as Westlaw and Lexis to avoid buying supplies, says Chief Justice Carol Hunstein. "That is as tight a budget, I think, as you can get," she says.
The task force plans to explore new funding sources and gather data on court funding. More than anything, it hopes to influence the state legislators who control court budgets. The group plans "to make sure this info is presented to people who can do something about this," Boies says. He points to an example from Missouri where, thanks in part to a coordinated lobbying effort by the general counsels of local corporations, the legislature in January passed the first pay raise for judges since 2008. While corporations carry political clout, so do lawyers and lobbyists, who gave over $200 million to state-level races in 2010, according to data from the National Institute on Money in State Politics.
Boies says his partnership with Olson is a sign of the issue's cross-party support. The duo teamed up once before, in 2009, to oppose California's ban on gay marriage. "They don't work on many things together," says Zack. "But when they do, it has real power."
The bottom line: A new task force, which includes prominent lawyers, is lobbying state legislators to increase budgets for poorly funded courts.