Divorces are one of the most traumatic, gut-wrenching experiences that anyone can go through in a lifetime. Articles here at the Huffington Post are filled with celebrity breakups, the agony that people endure, and the fact that too often there is violence and even murder/suicide in the breakup of a marriage. I have thought about this a lot over the years and would like to make some suggestions on how we can do a better job as lawyers and judges, especially in high conflict cases. In no particular order, here are some of my thoughts.
1. Let's take Plaintiff and Defendant out of the legal system in divorce and other family law matters. Some states' filings read: "In the matter of John Doe and Mary Doe." This is better than John vs Mary. Too many people are always wondering if it important to file first, and a lot of attorneys feed into that. If we make it, "In the matter of husband and wife," rather than, "In the matter of husband vs. wife," we can take some of the acrimony out from the start.
2. I think there should be two different tracks in the legal system. Track one will be for cases where there is not a lot of need for court intervention, and the attorneys can basically handle things on their own.
3. Track two will be for the high conflict cases. These need early intervention by the courts. There should be a method where there can be an early date scheduled, perhaps a status conference or even a meeting with a referee or judicial assistant, in order to start talking about issues. This should be set 30 to 60 days from the date of filing. If there are immediate issues, these should be dealt with at once. In high conflict cases, I believe the courts should intervene more and require counseling, especially if custody is an issue.
4. In high conflict cases where discovery is an issue, the courts should appoint a discovery master to work with the parties so that they are not going into court with motion after motion. This way, discovery can be handled by an expert who is working with the parties to make sure that everything is fully and fairly disclosed with regard to assets and liabilities.
5. In high conflict cases, a mediator should be appointed early on, perhaps 60 to 90 days into the case, with the idea being that there should be early-stage mediation. If necessary, there should not only be the appointment of a counselor, but perhaps, in some high conflict cases, a parenting coordinator or some other specialist to work with the parties in order to cool down disputes over custody and parenting time.
6. Judges should keep a firm hand on the docket, but they should allow people to appear by phone if necessary for matters such as pre-trials or scheduling conferences. This way, costs can be minimized to the litigants.
7. Courts should have experts available to work with them on hand, such as real estate appraisers for commercial or residential issues and experts named by the court where business evaluations become an issue. There also could be court appointed experts where there are high conflict custody battles.
8. When the parties need to schedule an emergency hearing or talk to a judge, they should be able to do so by phone so that there can be conference calls set up between the litigants, attorneys and the judge to discuss issues without the need for court appearances if everyone agrees.
9. If the judge sees problems, the court should be able to contact the attorneys and bring everyone in for either status conferences or settlement conferences to keep a hand on those cases, especially where there are high conflict situations.
10. Trials should be friendlier. In family court, perhaps there should be a relaxation of the rules of evidence. In some cases, it helps if the litigants are given time to speak without being questioned as a way to get his or her story out. I have found some judges will allow the litigants to speak for a half hour or an hour without interruption as a way to get to the point in a summary type of trial. I believe these should be encouraged, especially where there are not a lot of complicated assets or issues, and the litigants want their day in court. This is a way to get to the nitty-gritty rapidly, and without a lot of cost that you have in a more formal trial atmosphere.
11. There should be an understanding by the courts and the legal system that some cases can be wrapped up quickly, perhaps in 60 to 90 days, and that these should be done in that manner. Other cases need time for several reasons. Sometimes the parties are in a divorce, but are not psychologically ready to proceed. They should be given time. Most cases should be done in less than a year, but there are some cases where there are psychological problems or there are complicated assets and liabilities, and a year is not enough time. In these cases, there should be additional time provided by the legal system. This could be done with the court's monitoring issues carefully, but time should be given.
12. People who cannot afford attorneys should be dealt with in a courteous manner. In some areas where there are a lot of indigent cases, often the people without attorneys take up a lot of the time. These people should be dealt with with respect and care. One suggestion to handle it is to set aside one morning each week to handle strictly those cases where there are no attorneys so that litigants with attorneys are not forced to wait for extended periods of time in court.
The problem is that our legal system is often cumbersome, slow, and in these tough economic times, underfunded. We also need to remember that lawyers and judges are here to serve the public. In family law, the public consists of people of every racial, ethnic, and economic strata, who are going some of the most painful and traumatic times in their lives. We shouldn't forget that.
What are your thoughts? Please share them with us.
By: HENRY S. GORNBEIN
Family Law Attorney & Legal Correspondent
40900 Woodward Avenue, Ste. 111
Bloomfield Hills, MI 48304-5116
248/594-3444; Fax 248/594-3222