Back to Basics
For a broken family law system, the answer may be found in successfully settled cases, not 'Best Practices'
By Robert Durst
No section of our courts has a higher duty to the persons it serves than the Family Part. Virtually every Family Part matter directly impacts not only the litigants themselves, but the lives of third parties indirectly involved in the litigation. Children's rights to spend time with their respective parents are determined, extended family members' rights are often affected and even business partners are sometimes impacted by a pending Family Part matter.
No other section of our court system receives more multiple page motions, decides more pendente lite issues and exercises more discretion in interpreting and applying such nebulous concepts as "equitable" distribution and the "best interest" of a child.
Both the bench and bar have consistently sought -- through the Family Part Practice Committee, commissioned studies and CLE programs -- to improve the Family Part's ability to deliver the highest quality of service to those litigant's who place their trust and confidence in our system.
The question, however, is, despite our best intentions, have we lost our way, and, if so, how can we recover?
Best Practices Not the Best?
In the late 1990's, a study committee, chaired by The Honorable Linda R. Feinberg and Lee Hymerling, assessed the then status of the Family Part. After months of focus groups, public hearings and input from both the Bench and Bar, the message delivered to the Feinberg-Hymerling Committee was unequivocal - "It costs too much and takes too long."
Litigants, lawyers and judges were virtually unanimous in their conclusion that the processing of matrimonial actions had become far too lengthy and expensive. The study revealed that the back logs in some counties were as long as five to eight years. In part, the Feinberg-Hymerling Committee's work resulted in "Best Practices" being implemented in the Family Part.
It was the well-meaning intention of Best Practices to move cases in an efficient fashion reducing both cost and time. Has it succeeded? Probably not.
The application of Best Practice standards varies so widely from county to county that it is virtually ineffective. Some counties apply Best Practice standards rigidly, while others do little more than pay it lip service. Practitioners tend to not take it seriously because most courts do not. Litigant's complain that Best Practices either pressure them to act too quickly, or, alternatively, Best Practices are not enforced and their cases languish.
Our efforts to expedite the system produce as many inequities as benefits. Any experienced matrimonial attorney or jurist knows that there is a synergy to a case, a period of adjustment and emotional reaction that must occur, and that timing is the essence of virtually every settlement. Unfortunately, rigid time standards do not take into account any of these human variables.
Becoming Cost Prohibitive
Not only have hourly rates for average matrimonial lawyers now risen to a $250 to $350 range, but experienced counsel rates are now approaching $500 per hour. Even as little as forty hours (the equivalent of one work week) results in minimum fees of $10,000 to as much as $20,000.
To make matters worse, the hours counsel expends are often not the result of reasoned judgment, but an attempt to avoid future allegations of malpractice. Numerous hours are spent on extensive discovery (whether such discovery is necessary is another issue), multiple appearances for repetitive case management conferences and, in those cases which do proceed to litigation, direct and cross examination on virtually every facet of the litigant's personal and financial life.
The system has also spawned a variety of new experts, including: forensic psychologists, forensic accountants, real estate appraisers, lifestyle analysts and vocational and earning potential analysts. In routine cases, it is not unusual to see expert witness fees of $5,000 to $10,000 and, in a complex matter, expert fees often equal or exceed counsel fees.
The decision to use an expert is often not a reasoned judgment, but the result of counsel's perceived need to avoid the future criticism of not having produced such experts. On this basis, counsel will hire experts to recapitulate the parties' marital lifestyle, offer psychological testimony on virtually any issue which impacts the parenting time or custody, or impute income to persons who have not actively worked outside the home sometimes for as long as 25 or 30 years.
Dissatisfied Clients
An equal number of clients complain that the system is moving "too fast" or "too slow." They also believe that it is too costly. As early as 1979, interim report of the first "Pashman Committee" stated that: "a clients often feel that they have not received adequate return for money paid...."
Twenty-two years later, the Feinberg-Hymerling Committee received the same message. Thus, for over 25 years, and through multiple studies, we have yet to develop a system which satisfactorily serves the public.
The inescapable conclusion is that we are creating a "have and have not" legal system for matrimonial litigants. Those with unlimited resources can engage competent counsel and experts, those without such resources cannot. An average working-class family with a combined income of low six figures and two or three children literally cannot afford to access our system. To expend legal and attorneys' fees in a combined total of $40,000 to $50,000 is unaffordable, and in many instances, virtually bankrupts such families.
Even middle aged professional couples with combined income in the mid-six figures, very often, with the expenses of private secondary schooling or college, second homes and upper middle income lifestyle, cannot afford to spend a combined total of $100,000 to $150,000 on legal fees and experts. It is only the families with virtually unlimited discretionary income that can fully access and utilize the cadre of experts which can be employed in a matrimonial case and to afford high-quality legal services. Statistically such families are in the top 1 percent to 2 percent of the general population.
Thus, we have created a system which effectively serves only an extremely small percentage of the public. Any system of justice which serves such a small minority is not only intrinsically immoral, but destined to fail. How do we right this runaway train of escalating legal fees, expert fees and the timely delivery of justice?
Thinking Outside the Box
One would think that our now 30-plus years of commissions, study groups and committees would have created a more effective means of disposing of these matters. But, perhaps the ineffectiveness is in part because we continue to evaluate and work from existing models.
Certainly, there are those cases which will continue through the litigation process and can only ultimately be resolved by trial and judicial decision. Statistically, however, we know that that accounts for only about 1 percent of all Family Part cases. How do we service the other 99 percent? A system founded on litigation is not the answer.
Mediation has been tried on both a voluntary and involuntary basis. The mediation pilot program has been in effect in several pilot counties for years. Mediation has unquestionably resulted in the resolution of many cases, but, has not universally solved the problems. Arbitration is growing in popularity, but many practitioners and litigants remain opposed to arbitration based on their own perceptions.
Hearing officers have been used in discrete areas of the practice. Suggestions have been made to attempt a Master's system similar to the Pennsylvania system, but there is no data which would suggest that the use of Masters is any more effective than other existing systems. Good argument is often made that it simply adds another layer to the process.
In short, there is no readily apparent answer. However, a solution must be developed before for the cost and sheer numbers of matrimonial litigation further frustrates litigants and breaks down our system.
We constantly struggle for an alternative, but the answer was identified and articulated over a quarter of a century ago when the second Pashman Committee's report stated the following:
The personal attributes of Family Part Judges are critical. The Judges must be learned both in the law and behavioral science and able to apply them to complex factual situations... A Family Part Judge needs physical and mental energy, confidence, patience and an accepting, sympathetic and open mind... Most importantly, Family Part Judges must have a personal gyroscope which enables them to stay level and adhere to Kipling's admonition to 'keep your head when all about you are losing theirs'...
Even with training, some Judges will never have (the necessary) attributes. It is incumbent upon the Assignment Judges and the Chief Justice to carefully evaluate persons whom they are considering for recommendation and assignment to the Family Part.
As to counsel, the committee said:
Attorneys must educate their clients about the need to disclose financial information and to compromise... the attorney's responsibility is that clients must recognize that the Courts are not tools for spousal revenge.
It requires greater courage, more patience and many times a higher level of professional skill to negotiate a fair settlement than it does to litigate Family Law issues.
These concepts are as sound today as they were in 1989. The answer is not to impose a rigid Best Practice system to track the progress of a matrimonial case through the litigation process, evaluate our Family Part Judges "by the numbers," or equate good matrimonial lawyering with trials. The answer is found in successfully settled cases.
Indeed, as we struggle to develop new methodology for servicing matrimonial litigants, we should, perhaps, simply return to basics. Perhaps, as concisely articulated by Justice Pashman over 25 years ago, the answers are simply lodged in the minds, skills and attitudes of the bench and bar. A system of judges with the right traits and lawyers with the courage to settle, may indeed, be how we find our way again.
This article originally appeared in the August 15, 2005 New Jersey Law Journal's Family Law Supplement.
