Family Court , ‘Quo Vadis? “improvement, reform or implosion”?

As we observe the big picture of Maine’s Family Courts, we sense that  our family courts appear to be slowly imploding. It is not a visibly dramatic happening that grabs public attention. It is largely unnoticed and unrecognized symptoms of decay from within. This process of decline is unnoticed, except, perhaps, by those who pass through the family court experience , and many of these victims are so wounded by the experience that it is hard for them to view the experience in a larger perspective. It is frequently hard for all of the active players – judges, lawyers and users – to “see the woods for the trees”! Let us consider a few of the amazing “systems changes” that are progressing, unnoticed, and that are, like termites, silently eating the structure of family courts from within.

“THE “TERMITES”:  From our perspective, serious structural damage to family courts is being caused by the seemingly inexorable growth of ‘pro se‘  (self) representation in family courts. This phenomenon is occurring, not just in Maine, but in every state in America. In Maine, the figure for ‘pro se’ representation in family courts is reported to be a startling 74% and growing. There is also the eye-popping figure of 86% of family court cases, which have only ONE lawyer. The figures for ‘pro se’ representation, we might add, are even higher in Connecticut and NY. One has to ask, what is the impact of this amazing growth of self-representation on the family court system, on normal, professionally guided and determined family court proceedings? What happens to a professional legal system, with long traditions and well-established protocols for inter-professional relations, with a focus on complex, human problem solving, When one of the two “players” in these contests is underrepresented and completely  ignorant of how to function in the well-structured, traditional setting? General systems theory would suggest chaos and profound, unprogrammed, unintended changes in the way the system functions. Well-intended attempts to patch the traditional ‘status quo’ models, further change the original system and bring with them further unintended consequences. The working system is not as it was – try as it may. Some call it broken. The ‘pro se’ “trend is not its friend”!

WHAT HAPPENS IN THE SYSTEM?: With the invasion of ‘pro se’ litigants in family courts, desperate, frightened people with no knowledge or skill in the law and its traditions, turn the courtroom into a scene of confusion, stress, emotional pain and misunderstanding. Judges struggle mightily with “judicial impartiality” in dealing with the ‘pro se’ litigant. To help, or not to help – and how to do so without unbalancing fairness and throwing impartiality to the winds. How can a judge – without guidelines or traditions for handling this invasion of amateurs – try to maintain a degree of balance and proportion in a situation in which the combatants/ competitors are so unevenly matched? The ‘pro se’ litigant is always anxious, frequently frightened (or terrified) by the utterly unfamiliar environment, by the task of hoping to rescue a beloved child and by the daunting tensions of the contest. It is a forced visit to a very “foreign country” with unfamiliar rules, language and procedures. How to cross examine, what are rules of evidence and, then, there are all too frequently the “objections” raised at every turn by an opposing lawyer. What do they mean to a ‘pro se’ litigant? How should they be handled by the litigant and/or by the judge? Can an “impartial” judge help a baffled ‘pro se’ litigant deal with “objections”? Some judges do try to offer help and to be kind without violating impartiality, but it poses serious challenges to all of the “players”. There are also a number of very troubling reports that some judges are rude and vent frustration with the ineptitude of ‘pro se’ litigants. “Don’t come back to this court unless you have a lawyer!” has been the dictum of several judges. We’d say, there is a crying need for data to measure the scope of the problems? Then, one can address the second issue: how does one correct this total systems problem?

We’d answer those judges, who resist dealing with the legally unrepresented, by saying that no one in their right mind would undertake the personal stress and misery of ‘pro se’, unless motivated by great love for their children and financial hardship! The ‘pro se’ situation is never a happy choice for anyone, and no one decides to go ‘pro se’ unless they are utterly desperate! There is also the important question of “outcome”? Who wins  in these uneven combat situations? No one has answers to this question, but we are inclined to say, “Three guesses and the first two don’t count!”  However … there is a crying need for actual data to move the conversation beyond anecdotes.

PRESERVING FAMILY COURTS FOR THE SHRINKING 26% WHO HAVE (MONEY) LAWYERS: Apart from the 74% ‘pro se’ litigants without lawyers, one should also consider the remaining 26% who have lawyers. One might in all honesty say that the expensive Maine family courts are being maintained for this affluent  minority and (more importantly) their lawyers. As an arena for a few lawyers (and the associated apparatus of consultants and GALs), the whole operation has become known by the public (countrywide), as the divorce industry. Should family courts and their whole expensive apparatus be maintained at public expense for a 26% minority of litigants and the juicy financial interests of  “the divorce bar”?

AS NEWS ABOUT THE ‘PRO SE’ DISASTER ESCAPES THE SYSTEM: In this age of the Internet, the public learns quickly about the unhappy state of affairs of ‘pro se’ litigants in family court. Paradoxically, in many cases, the public may well know more than members of the Judicial Branch who are tightly isolated from news of serious malfunctioning, cruelty. Bad management and unintended harm to children by omnipresent, “due process” concerns.  The public, in all likelihood, knows more about specific courts and specific judges and lawyers than does the Chief Justice. But… the bad stories, once out, cannot be controlled or suppressed. It causes severe damage to the credibility of the courts. The mechanisms of channeling public complaints about the distressing dysfunctions within the system are not user-friendly, are very expensive and in terms of corrective outcome ineffective. But the complaints and the “scandals” cannot be stopped by a protective system and an ineffective complaint protocol. They spread out like an Internet miasma from Ft Kent to Kittery, from Maine to California. They give the family courts and their entire operation a very black eye. It is very reminiscent of the recent scandals in another very closed system, the Catholic Church. Old methods and techniques of suppressing bad news, bad results and bad people don’t work. The old system is badly broken and out of control, and the target symptom of this malaise can be seen most clearly in the ‘pro se’ situation.

HOW TO ADDRESS THE PROBLEM – FROM WITHIN OR FROM WITHOUT? It is our strong impression that without some thoughtfully programmed intervention, a growing ‘pro se’ situation in family courts will lead to a massive major breakdown of these courts in concert with widespread, public, bad feeling spiraling out of control. It will be impossible to control this tsunami of bad handling of ‘pro se’ cases. As social media become increasingly aware, the courts will face increasing disrespect and a lack of public support. It is truly a simple question of “fix it, or it will fix you!” In our opinion, the usual Judicial Branch problem solvers, the “stake holders” are the wrong group to fix the problem. They are the 26% who benefit financially from the current  ‘status quo’ of family courts. There is also the serious hard data problem. Nobody knows the full extent of the ‘pro se’ problem. It is impossible to formulate a fully rational, systemic, corrective intervention without data. Clearly, the definition of systemic data needs (and subsequent data collection and analysis) is not a task within the capability of a “stake holder’s” committee.

We’d recommend a legislative audit of the ‘pro se’ problem, executed by a respected government agency with the capability of doing this. OPEGA comes to mind. The aim is not to embarrass or cause pain to anyone. It is to obtain an objective analysis of the ‘pro se’ system and to suggest  comprehensive systemic corrections. With sponsorship from all three branches of government, it would be to the credit of all to face a terrible problem with courage and intelligence.

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For related posts please read:

2014-11-06 New Rules for Guardians ad litem versus or … Judicial Discretion.
2014-10-12 The Pro se Problem in Family Courts
2014-09-17 Public Comment: Report of the Family Division Task Force (FDTF), 2013