Opinion
December 22, 2005
Pursuant to Part II, Article 73-a of the New Hampshire Constitution and Supreme Court Rule 51, the Supreme Court of New Hampshire approves technical amendments to Supreme Court Rule 36(1) and 36(2) as set forth in Appendix A; technical amendments to Supreme Court Rule 54(2) and 54(5)(c) as set forth in Appendix B; and adoption, on a temporary basis, of new Superior Court Rule 170-B as set forth in Appendix C.
These amendments shall take effect on February 1, 2006. The amendment in Appendix C shall be referred to the Advisory Committee on Rules for consideration of whether it should be adopted on a permanent basis.
APPENDIX A
Amend Supreme Court Rule 36(1) and (2) by deleting said subsections and replacing them with the following:
(1) Notwithstanding the provisions of any superior court rule concerning persons who are not lawyers, of any superior court rule and district court rule concerning lawyers who are not members of the bar of this State, and of any other such court rules, an eligible law student or law graduate acting under a supervising attorney may appear in any court in this State as herein provided, in behalf of any indigent person, the State of New Hampshire, a State agency, or a State subdivision.
(2) The supervising attorney shall be a member of the bar of this State and, with respect to the law student or graduate's proposed appearances in any court, shall file with the clerk of this court the attorney's written consent to:
(a) supervise the student or graduate;
(b) assume personal professional responsibility for the student's or graduate's work and consider purchasing professional liability insurance coverage to include such law student or graduate;
(c) assist the student or graduate to the extent necessary;
(d) appear with the student or graduate in courts in this State when, in the supervising attorney's judgment, the nature of the case requires the supervising attorney's presence; and
(e) participate with the student or graduate in all settlement or plea negotiations and remain available at all times for consultation with opposing counsel without the participation of the student or graduate.
The supervising attorney shall waive the right to the confidentiality of proceedings resulting from complaints to the Committee on Professional Conduct, for the limited purpose of permitting disclosure of such proceedings by said committee to this court in connection with the court's review of a filing under this rule.
The presence of the supervising attorney in the superior court shall be required in all contested civil cases and in all criminal cases, and in district and municipal courts at probable cause hearings. Practicing members in good standing of the bar of another State for at least two years may on application to this court be exempt from the provisions of this rule relating to appearances in superior court and at probable cause hearings in district and municipal courts, provided that they prepare to take and do take the next bar examination in this State for which they are eligible or, having taken that examination, they are awaiting publication of the results of, or admission to the bar after passing, that examination. The presence of the supervising attorney shall be required in all cases in this court provided, however, that a student or graduate may appear in this court only in cases heard under Rule 12-D and with prior approval of this court.
The attorney shall file his written consent immediately upon his consenting to supervise a law student or graduate. Following such initial written consent, in every instance in which an attorney consents to continue his supervision of the law students and graduates under this rule, the attorney shall annually refile his written consent with the clerk of the supreme court in the month of October. The attorney shall file a withdrawal of his written consent immediately upon the termination of his supervision of any such student or graduate.
APPENDIX B
Amend Supreme Court Rule 54(2) and (5)(c) by deleting the words "pilot program" from both subsections and by adopting them, as amended, on a permanent basis, so that said subsections shall state as follows:
[Rule 54(2)]
(2) Administrative judges for the superior court, the district court, the probate court, and the family division shall be appointed by the chief justice of the supreme court, with the concurrence of a majority of the supreme court. The appointment shall be for a term to be stated in the order of appointment, but subject to the pleasure of the appointing authority.[Rule 54(5)(c)]
(c) Issuing superior court, district court, probate court, or family division administrative orders as may be required from time to time to carry out the responsibilities of the office;
APPENDIX C
Adopt Superior Court Rule 170-B on a temporary basis as follows:
JUDGE-CONDUCTED INTENSIVE MEDIATION
170-B. Judge-Conducted Intensive Mediation of Certain Cases.
(A) For purposes of this rule only, the term "complex case" shall mean: (1) with respect to any case in which the relief sought is monetary damages, a case wherein there is a realistic possibility the damages awarded could exceed $250,000.00; and (2) with respect to any case in which relief other than monetary damage is sought, a case wherein the trial can reasonably be expected to last more than five trial days.
(B) Upon agreement of the parties, the presiding justice may assign a complex case for intensive mediation. Such assignment may be made at or at any time after the initial Rule 62 conference but shall not be made later than 90 days before the trial date except for good cause shown. Assignment of a case to intensive mediation shall not stay, alter, suspend, or delay pretrial discovery, motions, hearings, conferences or trial unless the presiding justice so orders.
(C) The mediator for intensive mediation conducted under this rule shall be an active, senior active or retired superior court justice other than the justice to whom the case has been assigned for trial or who has presided over any pretrial hearings or ruled upon any pretrial motions. The justice who serves as mediator and all persons who participate in the mediation shall have no communication with the justice to whom the case is assigned for trial concerning the mediation or any matter pertaining to the merits of the case. All justices who serve as mediators pursuant to this rule shall have completed an approved mediation training program. The provisions of Rule 170(D)(2), 170(E) and 170(J) shall apply to all superior court justices who serve as mediators under this rule.
(D) The parties shall be provided at least 30 days advance notice of the date, time and location of the mediation session and of the name of the justice who will be serving as the mediator. Any party claiming grounds to recuse the justice assigned as mediator, shall file a motion for such relief within 10 days after the date of the notice scheduling the mediation. Any such motion shall be referred for ruling to the justice assigned as the mediator and said justice's ruling on the motion shall be final and not subject to further review. In the event the justice assigned as mediator grants the motion to recuse, the case shall be reassigned to another justice for mediation. Mediation sessions shall be held at a court facility but, subject to the availability of facilities, normally shall be held in a location other than the court wherein the case will be tried.
(E) Mediation under this rule shall be conducted in accordance with the procedures specified in Rule 170(G)(1), 170(H) and 170(I), except that (1) the summaries submitted by the parties may be up to 10 pages in length and (2) in addition to the materials listed in Rule 170(G)(1)(a), the parties at the same time also shall provide the mediator with an estimate of the time needed to properly mediate the case. Normally cases assigned under this rule shall be allotted one full day for mediation, but the mediator has the discretion to reduce or increase the time as s/he deems appropriate. The mediator also may schedule a pre-mediation conference if, in his or her discretion, such a conference will facilitate the speedy and efficient conduct of the mediation or resolution of the case.