Pay now or pay later

New York State Bar Association President-Elect Vincent E. Doyle; the Hon. Henry J. Scudder presiding justice, Appellate Division, Fourth Department; New York State Chief Judge Jonathan Lippman; and the Hon. Ann Pfau, chief administrative judge, listen to testimony presented during the chief judge’s hearing on Civil Legal Services on Wednesday at the Appellate Division courthouse. Vasiliy Baziuk

If people go without legal representation at basic civil proceedings, it will cost society down the road.

That was the recurring theme Wednesday at a public hearing addressing the unmet civil legal services needs of low-income New Yorkers, conducted in Rochester by state Chief Judge Jonathan Lippman.

The purpose of the hearing, the second of four being conducted throughout the state, is for the Unified Court System to gauge the extent of the problem and make recommendations to the state Legislature on how to meet those needs. Civil legal service providers say their clients are facing a variety of issues such as eviction, child custody, foreclosure and the denial of education, medical or social services benefits.

Chief Judge Lippman asked a panel of four judges whether the lack of attorneys representing the litigants who come before them challenges their ability to be neutral arbiters.

Monroe County Family Court Judge Joseph G. Nesser said one has a tendency to represent the underdog.

“I try to be fair,” he said.

“To say that you bend over backward … I think you do flips for them,” said the Hon. Henry J. Scudder, presiding judge of the Appellate Division, Fourth Department, where the hearing was conducted.

Judge Nesser, who practiced in Family Court for 21 years before becoming a judge three years ago, said many who come before him are indigent and uneducated. He said the best interests of children will not be represented if a litigant, such as a parent or grandparent, appears pro se.

Judge Nesser said such litigants are at a disadvantage from start to finish, and that proceedings take much longer without attorney representation.

Monroe County Supreme Court Justice Joanne M. Winslow said a lot of litigants, both men and women, are scared — worried about the possibility of losing their housing, health care or custody of their children.

Added to those fears and the lack of representation, they don’t know where to sit, what it is important to say, how to say it, what is relevant, how to present the relief they are seeking or how to defend the relief being sought by their opponent.

“In many ways, it’s like speaking a foreign language without the benefit of an interpreter,” Judge Winslow said, also noting it not only lengthens the process, but leaves it fraught with potential for errors.

Buffalo City Housing Court Judge Henry J. Nowak said he’s heard 7,700 eviction cases annually since 2007. In such proceedings, the litigants often hate each other, and 95 percent of the stories they tell are irrelevant to the matter at hand, he said. Sometimes he must rule against one party or the other, generally tenants, due to some of the irrelevant information that comes out.

When a tenant loses an eviction matter, he said, he or she also may lose other services if they don’t receive their mail and fail to fill out required forms for continued benefits.

Syracuse City Court Judge Langston C. McKinney said there is a world of difference between landlords represented by attorneys and tenants representing themselves, or both parties representing themselves. Landlords often own other properties and are well versed in the process.

“The playing field is not equal,” Judge McKinney said, noting judges try to ensure the letter of the law is followed without advocating for either side.

Many agreed that, given the nature of the proceedings, they also can be fraught with emotion. That was illustrated by a client of the Empire Justice Center, identified as Jane X, who choked back tears as she told the story of her struggling daughter being denied special education benefits for a learning disability.

She said Justice Jonathan Feldman, working through the center, was able to negotiate a settlement, but that she and her husband didn’t know what would have happened had school staff not told her about the center.

Attorney Vincent E. Doyle III, president-elect of the New York State Bar Association, said he could relate. A similar situation happened with his own child. In such cases, a lawyer is not only needed but also an expert who knows how to navigate the system.

Doyle sat Wednesday as part of the hearing panel, which included Judges Lippman and Scudder, as well as Chief Administrative Judge Ann Pfau.

Presenting panels were broken into six groups — client, educators, healthcare, judges, business leaders and project directors, with each participant given about five minutes to speak. Many also submitted written testimony.

Chief Judge Lippman said one finding that keeps coming to light is just how much the lack of representation affects society at large. He cited educators who testified that representation of their students may mean the difference between being a productive member of society or a drain. Other service providers said issues such as homelessness, health care or domestic violence could get in the way of someone completing their education and future employment success.

“I think it’s fair to say no issue is more fundamental to the courts … than assuring equal justice for all,” Chief Judge Lippman said. “What is clear to us already is the economic collapse … has had a dramatic effect … on those most vulnerable.”

The problem is further exacerbated by a decrease in the Interest on Lawyer Account Fund and state and federal funding. Chief Judge Lippman said the “terrific outpouring of pro bono” is not enough to address the problem. About eight to 10 people are turned away for legal help for every one who is accepted.

“We need to build the plumbing so this kind of funding comes from a regular part of the legislative process,” Chief Judge Lippman said, noting lawmakers have appeared receptive to listening to the findings of the 28-member Task Force to Expand Access to Civil Legal Services, which he empaneled earlier this year.

“It’s important that we pay now, or we will pay later,” said Catherine Cerulli, an associate professor and director of the Laboratory of Interpersonal Violence and Victimization, Department of Psychiatry, University of Rochester.

The task force was appointed to help prepare for this current series of public hearings and draft a report on their findings. The first was held Tuesday in Manhattan. The remaining two are scheduled for next week in Albany and Brooklyn.