Jonathan Lippman has spent more than four decades working in New York’s state courts. For much of that time, he has been a sort of inside agitator, not only hearing cases and managing workloads but also pressing to change the way the whole court system functions. Now, as the state’s chief judge, Lippman is as much a crusader as ever.
These days, the 69-year-old is crusading to get legal representation for those who can’t afford it. The federal Constitution guarantees criminal defendants access to a lawyer, but not for litigants in civil cases. Each year thousands of New Yorkers suffer the experience of showing up in court for a civil case and having no counsel to turn to. Most of these people are poor. They typically face threats such as eviction, the denial of parental custody or the loss of government benefits such as disability pay. Many times, they are being sued by a collection agency over a debt they didn’t know they had. New York City’s Legal Aid Society turns away three out of four people who come seeking help in civil matters because the nonprofit doesn’t have the money or staffing to represent them.
It’s not just a New York problem. The nation’s courts are loaded with civil litigants who can’t afford lawyers. New York differs from most other states only in the sheer number of its unrepresented -- and in the steps it has taken to deal with the situation.
During his five years as chief judge, Lippman has argued that legal services for the poor are actually a money saver for the state because they cut down on the delays that uninformed participants force into the system. A task force he established has asserted that for every $1 invested in legal services for the poor, $5 is returned to the state. But Lippman has taken more forceful action than that. Most recently, he has induced the New York court system to require that starting next year, law students must log 50 hours of supervised pro bono work before being admitted to the state bar.
The move has caught the attention of other states. Since Lippman proposed the rule in 2012, courts in California, Montana and New Jersey have recommended the same requirement. This past March, the American Bar Association took a step toward recommending that Lippman’s rule be an aspirational standard for the nation’s law schools.
Other states have come up with their own strategies to close the access-to-justice gap. Texas’ chief justice has negotiated higher payments into the fund that pays for that state’s legal service providers. Washington state has approved a new category of “low-bono” legal technicians to help needy civil litigants. “Without that really kind of bold leadership from Lippman,” says Nebraska Chief Justice Michael Heavican, who heads the Conference of Chief Justices, “the rest of us would not have the courage to try the things we’re thinking about trying.”
Several years ago, the Conference of Chief Justices issued a resolution calling on every state to have an “access to justice commission.” In 2012, the conference recommended that in-house counsels at businesses and corporations be allowed to work pro bono, even if they are not licensed as lawyers in the state where they are employed. Eight states (including New York) have enacted a mandatory reporting requirement for pro bono service, which has resulted in an increase of donated hours.
These are exactly the things Lippman wants to see. In his view, “being a little bit of a provocateur is a good thing for the judiciary.” His approach to an institution bound by precedent is that the judiciary should go beyond simply deciding cases fairly. It should be an incubator for ideas that make the system function better for everyone using it. And it should work to make courts open and navigable for citizens of every income level.
In the mid-1990s, under the direction of then-Chief Judge Judith Kaye, some New York City courts began a pilot program that created specialized courts to address the growing drug problem. This was at the height of the war on drugs, and the city’s courts and prisons were being overrun with offenders. Kaye directed Lippman, who was then deputy chief administrative judge, to develop a program that offered treatment rather than jail for many drug offenders. It was the beginning of what today are commonly known as drug courts, the first of New York’s so-called problem-solving courts.
At the same time, Lippman helped establish the Center for Court Innovation, a research and development arm for the state’s courts. The center’s first push was for additional problem-solving courts to address other issues besides drugs. These courts, which are typically one or two dedicated courtrooms in a courthouse, are now commonplace throughout the country. They handle cases that deal with mental illness, domestic violence and veterans’ welfare, among other issues. The focus is on outcomes -- reducing incarceration and increasing the use of job training, counseling and rehabilitation.
Problem-solving courts have their detractors. Candace McCoy, a criminal justice professor at City University of New York, argues that judges are not trained therapists. Yet problem-solving courts cast them as social workers, doling out addiction treatment, mental health counseling or community service hours. Additionally, she says, the option of treatment or jail doesn’t leave most offenders with much of a choice. “The person is invited to plead guilty and go to treatment, and if you don’t plead guilty [and are convicted] you go to jail,” she says. “It’s coercive.”
But New York’s success in crime fighting is hard to ignore -- and the supporters of problem-solving courts say these courts have played a key role. The state’s overall crime rate and prison population have both dropped over the last decade, each by an impressive 15 percent. Although the nation’s crime rate has also dropped during the same period, that has not been true of its prison count.
The experience with problem-solving courts laid the foundation for what has become Lippman’s hallmark as chief judge: a determination to use creativity and experimentation as welcome tools in the judicial system. “That changed everything for me,” Lippman says. “I got the passion -- this whole idea of doing justice and pursuing justice on such a broad scale. It fascinated me.”
In Lippman’s view, “being a little bit of a provocateur is a good thing for the judiciary.” (Todd Pitt)
Lippman was a court administrator for nearly two decades before he became a senior judge, and his early experience has given him a reputation as a master negotiator. By the time he was appointed chief judge in 2009, the phrase “you’ve been Lippmanized” had become commonplace at the Court of Appeals in Albany. “He just had this ability to persuade you to the rightness of a particular idea,” says Cameron Moxley, one of his former law clerks. “When you were going into a conversation on the other side, you’d leave the conversation thinking, ‘How could I have ever thought otherwise?’”
As chief judge, Lippman has found his administrative experience helpful in furthering his judicial reform agenda. The mandatory pro bono rule for new lawyers overcame initial skepticism after a committee worked with law schools to explain how the rule would be implemented. Other initiatives have been put in place with surprisingly little opposition. Those include a plan Lippman came up with early in his chief judge tenure, to create a task force on wrongful convictions that would examine cases decided incorrectly in the state and look at what the implications might be for criminal justice policy. Unlike in other states, the Wrongful Conviction Task Force is a permanent feature of New York’s judicial system. It collects, processes and shares data on wrongful convictions.
In civil matters, Lippman has pushed through or advocated a number of changes aimed at benefiting consumers. New foreclosure rules, passed after the housing collapse of 2008, require banks in their initial filing to include a certificate declaring a reasonable basis for the foreclosure. They also shorten the number of days banks have to prove they notified the homeowner from 120 days to 20. This year Lippman changed the rules in consumer debt cases as well. It is harder for debt collectors to win default judgments because, for example, collectors must now submit documents detailing the chain of debt ownership. And to solve the common problem of consumers who are unaware they are being sued, collectors have to give the court a stamped envelope with the consumer’s address. The court then sends out notice of the suit.
Borrowing from other courts is also a Lippman tactic. This year, in a further effort to deal with the problem of legal representation for the poor, New York City launched a pilot program for indigent litigants modeled after the United Kingdom’s Citizens Advice Bureau. So-called “court navigators,” trained non-lawyer volunteers, are helping unrepresented residents in Brooklyn Housing Court and in certain consumer debt courts with filling out paperwork and accessing services they need. They may not address the court for the litigant but they can answer questions if asked by a judge.
Lippman has not reached the end of his list of reforms, but he is acutely aware of the fact that he will reach the state’s mandatory retirement age next year. He says the deadline is merely a reason to work harder. “My job is not to sit around and talk about things, my job is to take an idea and make it a reality,” he says. “You’ve got to be a leader -- you have to grab the pulpit and use it.”