Dear Honorable (Family Court) Judges

(Some Thoughts On Enhancing Justice in WV Family Courts)

Dear Honorable Judges;

Thank you for your insightful presentation at the National Business Institute seminar, “What Family Court Judges Want You to Know”, on April 1, 2011. I found myself comparing your approaches to those of the Family Court Judges in North Central WV, Upshur County and surrounding counties. I received interesting ideas that can benefit us all.

As you each know, when I got your seminar brochure, I had just posted an article to my blog, www.burtonhunteresq.blogspot.com, in which I grappled with what I perceive to be a lack of communication and rapport between lawyers and judges; (Or, at least between THIS lawyer and judges.).

I sent a copy to each of you and sincerely appreciate your reading it and addressing some of my concerns. I am sending this letter and that article to my local judges, and some of my colleagues who practice here. I wish we all could have attended your seminar.

As I listened to you, I discovered some commonalities. The family court judges I know are uniformly compassionate, committed to providing a just result, intelligent, and usually witty. I sense various levels of fatigue, somewhat related to years of service and workload. I don’t think I know a judge who has worked in family law longer than my 38 years. I am not tired yet, just frustrated.

All of us are dealing with the fragmentation of our society. You mentioned the disturbing trend of more young men/fathers who have never held down a steady job, and of young women/mothers who have become dependent on drugs.

And, the “remedy of choice” seems to be the domestic violence statute. “If the only tool you have is a hammer, every problem looks like a nail.”

On Friday, I hesitated to ask your percentage of self-represented parties, but I am guessing it is at least 70%.

I have criticized our WV Supreme Court of Appeals for what I perceive to be “caving in” to this trend of self-representation by helping create the appearance that “do it yourself forms” can allow self-represented parties to navigate the family court system on their own. That appearance is false.

Our profession can do a better job helping WV citizens protect their families. The “ghostwriting” memo is a perfect example of the prevailing attitude of “the powers that be”. Lawyers and potential clients need help, not artificial obstructions. Before lawyers link their name to an unrepresented party’s case, most will opt to do nothing for them! And, why should Legal Aid be permitted and encouraged to do so, but the private bar penalized?

I perceive that clerks and court representatives are not stressing to parties the dire need that they be represented by competent counsel.

I also perceive that no one provides these folks copies of the Family Court Rules, Overlap Rules, Spousal Support Statutes, Relocation Statute, Caretaking Functions Statute, or any of the enumerable rules and laws that govern their cases. We expect very little of self-represented parties and are seldom disappointed.

I realize that each family court judge relies on tools that work for him or her. These include:

a. Wise bailiffs who can do a lot more than keep order;

b. Providing lawyers copies of cd’s of hearings, “while you wait”;

c. A case coordinator who can provide “poor man’s mediation” of up to an hour per case;

d. Conferences between the Court and counsel (Not my favorite, since any client getting bad news smells a conspiracy);

e. Hefty assessment of fines, and judicious use of incarceration for chronic acts of contempt;

f. Robust awards of attorney fees in appropriate cases;

g. Strong focus on the eight exceptions to the Caretaking Functions Statute;

h. Frequent use of urine tests, with stronger responses to meth and other hard drugs than to positive tests for marijuana; this was tempered by what I considered a wise observation that smoking pot is not only illegal, but it requires the serious crime of transfer of marijuana, with the inherent risks of violence to the user and his children, and criminal prosecution.

i. Your use of mediation is MUCH less than what I am used to. Here, parties are hardly ever screened out of mediation, and represented parties are almost always accompanied by their attorneys. Most good family law lawyers have attended mediation training and know how to prepare for and participate in mediation.

j. In our part of the state, there is a strong corps/core of exceptional mediators. A combination of represented parties and any of these mediators almost always results in a negotiated settlement.

k. One of you suggested there be more professionalism by lawyers. I agree, but I was surprised to learn from a colleague that you generally do not mandate a strict litigation schedule, issue scheduling orders, penalize discovery violations, or require a timely exchange of exhibits and witnesses, with a summary of expected testimony and proposed equitable distribution spreadsheet;

l. I am used to family courts requiring all of these things. I cannot see how your attorneys can avoid “trial by ambush”. If they do not have this information well in advance of trial, how can they mediate successfully “in the dark? Sorry, I should have asked you on Friday.

m. I heard much more about “children’s issues” during your seminar than I am used to. Issues such as apportionment of debt, award of spousal support, and disposition of cars and houses, have direct impact on the children. I would never think of going to mediation without a plan to mediate and solve such issues. They are “children’s issues”.

n. I realize family courts are statutory, and I notice family court judges can have an inferiority complex or visible resentment about that fact, but I cannot agree with a judge who would not require counsel to take all issues to mediation and dare the attorney to take that issue up on appeal. What competent lawyer would appeal such a sound ruling?

o. I note that one or more of you actually trust the attorney to tell you if a case has a good chance of settlement through mediation. Many of my worst appearing cases have resulted in mediated settlements. I say send them, but leave it to the lawyers, parties, and the mediator as to what part will be “face to face”.

p. On the other hand, I dislike the policy of certain local judges to compel me and my client to a “face to face” settlement meeting without a mediator, even when I put up a big fuss and ASSURE the court it is a bad idea. Not sure how your attorneys got so smart and how my 38 years count for so little, but I detest those mandatory face to face meetings more than words can say.

q. I need the mediator to provide the leverage I need, with my opponent, and with my client, to achieve a settlement. Without the mediator, I have to play “the bad guy”. In one instance, I had to spend a great deal of time away from my client, who was afraid of the child’s father. We achieved a settlement, but I got fired for “selling me out”.

r. I note that at least one of you requires a psychological or psychiatric evaluation of a younger child before you will consider the presumption against their testimony to be rebutted. Since neither parent, at least at the temporary stage, should be able to take the child to a new doctor/counselor without consent of the other parent, I was not sure how this could be accomplished. If by written motion, it seems the child might be ready for college before the parties have their trial!

s. At last count, I have encountered a dozen fatalities in my practice, 8 suicides and 4 homicides. I am anxious to avoid repeating the experience.

t. I am convinced that there is a better way to process these cases. In spite of good intentions, there is not enough innovation, not enough originality, and not enough communication, among judges, among counsel, and between judges and attorneys.

u. Most areas of our fine state have not yet developed the tradition of “full mediation” and many too many lawyers do not prepare their clients properly for mediation or attend mediation. Some even seem to enjoy picking apart or blowing up the mediated agreement afterward.

v. Some lawyers are not even available to the mediator or their client by phone during mediation, and some mediators “…..don’t allow lawyers to come to my mediations!”

w. The author of that statement, at a recent annual conference, purported to be an attorney! What low regard she must have for her colleagues. Maybe she does not even know that some lawyers have worked hard to learn how to be a positive force in mediation.

x. A well prepared, well intentioned lawyer, in my opinion is “the mediator’s friend:” and one of the most valuable resources she can have.

My conclusion is that I should appreciate our local family court judges more. Recent contact with the States of New York and Va. tells me that their citizens would consider our system to be “almost heaven”.

Our local judges’ requirements that we file our pretrial memos, adhere to tight scheduling orders, and mediate all issues, are sound rules, and I commend these rules to judges in all parts of our state, even if it takes a few years to develop a cadre of terrific mediators, and mediating lawyers.

Still, I learned much from your presentations and am glad I came.

Rigid application of “caretaking functions”, while sometimes helpful and timesaving, has never seemed right to me. The best interests of the children should remain the “polar star” to guide us.

Using the talents most available to you, bailiffs, case coordinators, guardians ad litem (who can request drug screens), and conflict counselors, makes good sense.

Another tool, “The Overlap Rules” appears to me to be a dud. I have seen positive results from an overlap referral just once.

Punishment of parties who violate your orders, and of obstructive and incompetent counsel (which is normal for you) just is not done in our jurisdictions. My complaints against lawyers who don’t do their orders, or habitually show up late, fall on deaf ears. Excellence is not rewarded, and mediocrity is not penalized.

Contrary to your comments, I have been told by more than one of our local judges that they have no power to incarcerate for contempt. I have never seen a family court incarcerate or fine, but may regret that I presented these ideas as suggestions here.

Thank you again for your stimulating discussion. I will keep posting my thoughts to my blog and writing to colleagues, with the hope it will stimulate discussion, innovation, change, and communication.

I mean no disrespect in voicing these opinions, and I have renewed appreciation for the sincerity with which each of you is pursuing your quest that timely justice prevail in the State of WV.

Yours very truly,

J. Burton Hunter III

This post was written by Burton Hunter