Inconsistency on the Bench

Apparently, people seem to erroneously believe that because someone happens to be a judge, they are an expert in the field. I can understand why people would have such a false belief, but it leads to mistakes that should be avoided at all costs.

If I, God forbid, were diagnosed with cancer, I would seek out the specialist who I believed would give me the greatest possibility of survival. Although I live in Los Angeles County, California, I can promise that if concluded that going to a particular specialist in New York would improve my chances of survival, I would travel to New York for my treatment, if at all possible and I could afford it.

Unfortunately, the same is not true with regard to judges. Furthermore, unless you hire a private judge, if that is even an option in your jurisdiction, you do not have the right to select the judge who will hear your case.

Let me share with you part of an email I received from a judicial officer a couple of years ago. “We don’t provide enough training for family law judges, and we certainly don’t require that training before undertaking a family law judicial assignment. Most judges still don’t want to do family law. Most judges have no family law experience, for openers. And a family law assignment is a lot more work than most judicial assignments. A lot more. And many judges aren’t comfortable with the different way that emotions play out in family law cases than in, say, civil cases…. So many judges get the hell out of family law as quickly as they can, and usually about the time that they’ve finally learned enough and acquired enough experience to become competent.”

On December 4, 2013, an attorney posted a topic on the Los Angeles County Bar Association’s Family Law Listserv titled “Inconsistency on the Bench.” The attorney stated in pertinent part as follows: “Never in my 18 years of doing family law have I been left speechless, upset and confused by a ruling from a branch court judge that totally contradicted a ruling he made just 2 months ago wherein me and opposing counsel were on opposite sides of the same issue…. I have no problem with a judge whose strike zone is high, or low, or wide or inside as long as he is consistent…. A judge who is this clueless offends me. I feel like I have been wasting my time and money learning about this business. I feel like it doesn’t matter. How can we advise our clients on what to expect when it seems a coin was flipped? When will we stop putting people on the bench who seem to have no idea about the dynamics of family law and the psychological impact their decisions on the lives of our clients and their children? This is serious business. This a gross injustice on the people our judicial system is supposed to SERVE.”

Let me share with you the responses to this post from fellow attorneys.

“I feel your frustration! Just FYI — I never tell my clients what to expect from any judge. I have been surprised too many times. I tell my clients that I will advocate on their behalf as best as I can with the facts provided, but the decision depends on the judge. I do warn them sometimes as to what could happen and perhaps encourage a settlement, if possible, or other alternatives. I always encourage parents to settle their disputes because neither parent may like the judge’s decision. That’s a risk they take! THERE ARE NO GUARANTEES in this business. Don’t beat yourself for this happening.”

“A good lawyer knows the law, a great lawyer knows the judge-in this case an idiot.”

“You can never tell what a Judicial Officer will do.”

“Sorry to sound dismissive, but isn’t that the nature of family law? Isn’t the unexpected expected? I have spoken to attorneys who practice civil law who have tried family law and refuse to do it because the rulings are so inconsistent.”

The attorney who started the discussion then commented as follows: “It should never be acceptable to simply dismiss incompetence and general lack of understanding of the dynamics of family law as “it’s the nature of family law” that is a defeatist approach. Our bench officers should be better trained and better qualified before given a family law assignment to learn on the fly. Some see family law for the first time in their careers when they first sit on the bench. I remember one of our colleagues sharing the following on this Listserv: “I don’t think the problem is confined to the LA branch courts, or to our county. It is a statewide and nationwide failure to recognize that family court is a universe that requires an extraordinary amount of advanced training, expertise, experience and wisdom.”

The following comment was made in response:

“Alas, not news. From IRMO Brantner (1977!):
‘[I]n its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-the-totem-pole treatment, quite often being fobbed off on a commissioner. One of the paradoxes of our present legal system is that it is accepted practice to tie up a court for days while a gaggle of professional medical witnesses expound to a jury on just how devastating or just how trivial a personal injury may be, all to the personal enrichment of the trial lawyers involved, yet at the same time we begrudge the judicial resources necessary for careful and reasoned judgments in this most delicate field — the breakup of a marriage with its resulting trauma and troublesome fiscal aftermath. The courts should not begrudge the time necessary to carefully go over the wreckage of a marriage in order to effect substantial justice to all parties involved. The handling of this case, which involved the breakup of a 25-year marriage, the custody of 2 teenage girls, the disposition of all of the property accumulated during that marriage, and the plotting of the fiscal future of the entire family, is illustrative. Judged by the brevity of the record, not more than 15 minutes of the court’s time on a busy Friday afternoon short-cause calendar were involved.’

…and getting worse, since calendars are double what they were in those days . Expect, as the dust from the budget cuts continues to settle, that the level of judicial officer inconsistency, irascibility, crankiness, and general burn-out will climb further. Seems to be as true downtown LA as anywhere else.

So, what to say? In an uncharacteristically un-cynical, un-cranky mood, let me urge*: if we want this fixed, we’ve got to fix it, or get others to work fixing it. Lobby. Be active in your bar association, and their lobbying (I know you are.) Whenever a client is unhappy with what a judge has done, or more usually, what a judge hasn’t done or won’t do (as in ‘Why are we getting only 15 minutes of hearing time, at 3:30 pm, when we got here at 8:30 am?’) I now say: ‘I understand your frustration and anger; this system is a mess. You need to talk to your legislator and write to your legislators, to get your tax dollars applied to getting this fixed. This is YOUR court.'”

Don’t you and your family deserve better than what you stand to get in family law court? If so, I seriously suggest that you consider using mediation or collaborative divorce to resolve your issues.

5 comments

  1. In Canada, we have specialized family courts in many urban centres. This reduces but does not eliminate the possibility of an unwarranted outcome but the prospects of that happening are significantly reduced. We also have the National Judicial Institute which provides training for newly appointed judges. In the fields of Criminal Law and Family Law, the NJI publishes a newsletter every three weeks for all judges who wish to receive them. The areas where we are well behind some U.S. jurisdictions is in access to alternative dispute resolution processes although here again major strides have occurred during the past 10 years. However, much more needs to be done.

  2. December 21, 2013 at 4:17 pm

    In Canada, we have specialized family courts in many urban centres. This reduces but does not eliminate the possibility of an unwarranted outcome but the prospects of that happening are significantly reduced. We also have the National Judicial Institute which provides training for newly appointed judges. In the fields of Criminal Law and Family Law, the NJI publishes a newsletter every three weeks for all judges who wish to receive them. The areas where we are well behind some U.S. jurisdictions is in access to alternative dispute resolution processes although here again major strides have occurred during the past 10 years. However, much more needs to be done.

  3. Karen Covy says:

    I agree that the family court system needs serious help, but I disagree that the best way to fix it is for people to lobby their legislators for change. Sure, requiring a more stringent education program for family court judges might help. Creating specialized family courts might help. Adding more resources to the family court system to reduce the backlog of cases might help. But all of that takes a long time and a lot of money. And, in the end, because family law has to be flexible enough to address many different situations, judges will still always have a lot of discretion to make whatever decision they choose. So, there will always be room for inconsistency in their decisions.

    That’s not to say that improving the family court system is impossible, or that we shouldn’t try. Of course we should try to improve the system. But, I believe that the real solution lies in alternative dispute resolution.

    The only way that people involved in a divorce can really keep some measure of control over the outcome of their case is to actively participate in it themselves. Mediation and collaborative law provide alternatives which typically give litigants a more satisfying result because the litigants themselves craft their own agreement. In cases in which the parties simply can’t agree, private arbitration may also provide a more efficient and effective solution than traditional litigation. What’s more, every case that is resolved through alternative dispute resolution is one less case for the court system to resolve. If the court system was truly used only as a last resort, judges would have more time to resolve the difficult cases which need their attention. That still won’t eliminate judicial inconsistency, but it would limit its effect.

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