Pilot program aims to leverage paralegals provide extra assistance for certain cases

A new law going into effect on Jan. 1, 2023, establishes a pilot program that will allow qualified paralegals to assist clients in family court, landlord-tenant disputes, and domestic violence cases where the litigants may be unfamiliar with court procedures and are unable to bear the financial cost of legal representation.

The two-year pilot program will utilize paraprofessionals employed, retained by, and acting under the supervision of a member of the New Hampshire Bar Association to assist clients in three court jurisdictions: the 9th Circuit-District Division and Family Division—Manchester, 1st Circuit-District Division and Family Division—Berlin, and 6th Circuit-District Division and Family Division—Franklin.

The lead sponsor of House Bill 1343, Rep. Ned Gordon (R-Bristol), is a retired district court judge whose experience on the bench in Franklin demonstrated the need for such an innovative approach to provide representation in court proceedings to residents of the state.

Other sponsors of the legislation were Reps. Kimberly Rice (R-Hudson), Marjorie Smith (D-Durham), and Kurt Wuelper (R-Strafford), and Sens. Harold French (R-Franklin) and Rebecca Whitley (D-Hopkinton).

The bill had the unanimous support of the House Judiciary Committee and passed the House on the consent calendar. The only person objecting to the bill on the Senate Judiciary Committee was an attorney, and it passed the Senate on a voice vote. It also had the support of the court system.

Gordon compared his solution to that of the medical industry where nurse practitioners and physicians’ assistants were introduced to assist doctors in meeting large case loads.

The Sixth Amendment Center recently reported on the shortage of defense attorneys for indigent people, writing, “the judicial council has only three staff members to try to annually ensure effective representation of approximately 39,000 cases of indigent defendants heard in 42 trial court locations before 58 judges, while contemporaneously trying to find attorneys willing to take cases for inadequate compensation.”

The study found that “New Hampshire has many well-qualified, skilled, and passionate defense attorneys providing representation all across the state. However, those attorneys are placed in an untenable situation in which they are asked to carry excessive caseloads while being undercompensated. As more experienced attorneys leave the system, the remaining attorneys are forced to take on even more cases, causing a cycle of greater frustration and burnout, and indigent defendants wait longer and longer to have an attorney assigned to represent.”

In testifying on behalf of HB 1343, Gordon said, “[U]ntil the 1980s, virtually all New Hampshire litigants in divorce and custody matters were represented by counsel, but for a variety of reasons — perhaps most prominently the cost of hiring attorneys — the trend of self-representation developed. Now 80% to 90% of the people who appear in our Family Division are unrepresented.”

In his remarks to the Senate Judiciary Committee, Gordon said, “The financial cost of legal representation is often a bar for litigants to receive proper representation in family court matters. The hourly cost of an attorney may in itself be prohibitive, but the up-front cost of a retainer — often $2,500 or more — may make representation prohibitive. Even people with moderate incomes may find it difficult to raise that threshold amount at the time it is needed.”

Despite the fact that courts have worked hard to accommodate the trend — establishing mediation programs and trying to make the legal process as understandable and simple as possible — Gordon said, “there is no substitute for legal representation.”

Similarly, there is what Gordon calls “a crisis with evictions.”

“Tenants tend to be less affluent and are unable to afford to be represented in those proceedings,” Gordon said. “I have no doubt that many people are evicted in this state simply because they do not understand the process or their rights.”

As for domestic violence cases, alleged victims are represented by attorneys in only 13% of cases, while accused abusers are far more likely to represented.

“Having non-attorneys appear in our courts is not entirely new,” Gordon pointed out. “New Hampshire statute specifically provides that a person appearing in our courts may be represented by a person of their choice. We have, however, imposed limitations on the practice of law, including how many times a person may appear or whether they may be compensated.

“Currently, we allow police officers to prosecute cases in our courts without any requirement for legal training. We allow domestic violence advocates to assist litigants in court, even though they do not actually speak on their behalf. Non-attorneys are representing clients in hearings before Health and Human Services. Non-attorney guardians ad litem appear regularly in our circuit courts.”

The two-year pilot will provide an opportunity to determine whether having non-attorneys representing clients on a limited basis in the three jurisdictions has value, and whether it may cause problems. By using diverse communities for the pilot program — Manchester’s is a large court while Berlin’s and Franklin’s are small — Gordon said the results will be a large enough sample to adequately evaluate the program.

“I do not anticipate that this will eliminate unrepresented people,” Gordon said. “There are other reasons why people may choose to be unrepresented. But I do believe that this has the potential to benefit many and to begin to address the problem.”