I have actually heard there are a few folks following this blog, for which I am grateful. But the summer months are too precious here in Maine to spend time typing away on this and that, so this is my first new entry in several months.
Reference has been popular in divorce cases for going on ten years, and some of the bigger more complex divorces are now being decided by referees. Reference has its costs, i.e., the fees for the referee. However, there are savings also, such as being able to plan exactly when a trial will take place (rather than being bounced around on trailing dockets), and presentation to a referee is generally not as complicated as a bench trial in the District Court, as it is more informal than a trial. There are savings in time and costs there also.
In Gorman v. Gorman, 2010 ME 123, decided November 30, 2010, the parties obtained an order from the District Court judge that appointed the referee, but then said they waived any objection to the referee’s report and could proceed directly to the Law Court with any appeal. There is of course no such provision in M. R. Civ. P. 53. Objections to the referee’s report must be filed, and those objections are then considered by the District Court, after which the parties may appeal to the Law Court.
And, that is what the Law Court ruled. “The process allows the court to identify and address any issues that may need correction, clarification, or further legal analysis. By addressing the objections, the court may correct errors or misunderstandings quickly and without the expense of an appeal.” 2010 ME 123, at para. 5.
In this case since the parties had obtained a judge’s order “explicitly” approving this procedure, the Law Court did not summarily dismiss the appeal, but remanded the case with directions for the parties to file their objections as they should have below.
I guess the lesson here is that while reference allows the parties to obtain a judgment more expeditiously than they probably would by waiting for the District Court to get to the case (Why else would you want a referee?), the parties can only go so far in shaping the process they are going to follow. Conferring direct appeal jurisdiction on the Law Court is not one of the options. Frankly, it was a creative solution to the problem of waiting for the District Court to rule all the while knowing that whoever did not prevail in the objection determination would go the Law Court anyway.
Sunday, December 5, 2010
Tuesday, July 20, 2010
Toward A More Rational System
From a recent article in the Kansas City Star entitled “Custody battles at home can scuttle performance at work”:
Even as the national divorce rate declines, couples who do wind up filing most often participate in a protracted and adversarial process that disrupts their home lives and interferes with their work performance. Social networking has added to the mix, becoming the latest legal tool in divorce and child-support battles and taking the drama up a notch. Add in forensic accountants and electronic paper trails, and you have the makings of long and costly divorce battles.
These contentious disputes are clogging court systems across the country. University of Baltimore School of Law professor Barbara A. Babb, who directs the school's Center for Families, Children and the Courts, says as many of half of trial court cases are family law, typically taking up to two years from start to finish. With participants fueled by a newfound hatred of their former spouse, these cases often destroy families, affect children's behavior, and cost employers money in lost time and productivity.
Babb believes there's a universal interest in moving away from the win-lose mentality that turns these cases into disruptive battles. "Many judges don't like to hear family-law cases. Court should be a last resort only for those issues can't be resolved through negotiation or mediation."
Perhaps this has nothing to do with the fault and has much more to do with it is simply the way things are. Our training as lawyers teaches us to be advocates and to argue all points on behalf of our client that are to the client's advantage. And since we never know exactly what point of evidence will be the winning point, we are of course tempted to seek out as much evidence as possible and present it to the court. Meanwhile, in family cases, we are representing clients who feel compelled to “win”. This mixture of system, training and motives frequently produces a litigation cataclysm that impoverishes everyone involved in it, and that is sometimes the lawyer too.
I think of this as the American Model of Divorce. People divorcing seem to think that they must engage in a long, corrosive and expensive battle in proving all of the little points that in hindsight sometimes seem so irrelevant to their ultimate happiness as human beings.
Perhaps if the court system were more aimed at forcing people to negotiate rather than gear up for contested hearings, more productive work could be accomplished by the parties during their divorce case. Here in Maine, it might be a great deal better if the court set up a system where at several points along the way the parties were forced to sit down and negotiate rather than at only one point along the way. In a Maine divorce case, with children, if the parties indicate during the first meeting with the court that they are not in agreement, the court will automatically send them to mediation. This will be the last time the court will ask them to go to mediation, yet the court is sending them to mediation at a time in the case when they possibly the least likely to want or be able to settle it. There are many reasons for this. For instance, they have not have gotten used to the idea that they are going to get divorced and one or both of the parties are not ready to negotiate, one or both of the parties has insufficient information about financial and other issues to be confident enough to negotiate, or the small block of time the court sets aside for them is simply not enough time to negotiate all of the issues involved in the case. Yet, once the mediation ticket is punched, the parties are done with that as far as the court is concerned.
Of course, the parties may be afforded an opportunity for a judicial settlement conference later in their case, but that is not a given. They might get it, and they might not get it. And, surprising number of the judges express the feeling that judicial settlement conferences are not productive.
Is it any wonder so many cases wind up going to unnecessary hearings?
Maybe a system that was that is designed to send the parties to a series of negotiations rather than force them into a series of testimonial hearings would be a system that would avoid much of the angst and anguish displayed in the article above.
Even as the national divorce rate declines, couples who do wind up filing most often participate in a protracted and adversarial process that disrupts their home lives and interferes with their work performance. Social networking has added to the mix, becoming the latest legal tool in divorce and child-support battles and taking the drama up a notch. Add in forensic accountants and electronic paper trails, and you have the makings of long and costly divorce battles.
These contentious disputes are clogging court systems across the country. University of Baltimore School of Law professor Barbara A. Babb, who directs the school's Center for Families, Children and the Courts, says as many of half of trial court cases are family law, typically taking up to two years from start to finish. With participants fueled by a newfound hatred of their former spouse, these cases often destroy families, affect children's behavior, and cost employers money in lost time and productivity.
Babb believes there's a universal interest in moving away from the win-lose mentality that turns these cases into disruptive battles. "Many judges don't like to hear family-law cases. Court should be a last resort only for those issues can't be resolved through negotiation or mediation."
******************************
The first question that someone will ask is who was at “fault” for all of this? We Americans spend much of our time these days attempting to fix fault for everything that has gone wrong in our society or in our lives.Perhaps this has nothing to do with the fault and has much more to do with it is simply the way things are. Our training as lawyers teaches us to be advocates and to argue all points on behalf of our client that are to the client's advantage. And since we never know exactly what point of evidence will be the winning point, we are of course tempted to seek out as much evidence as possible and present it to the court. Meanwhile, in family cases, we are representing clients who feel compelled to “win”. This mixture of system, training and motives frequently produces a litigation cataclysm that impoverishes everyone involved in it, and that is sometimes the lawyer too.
I think of this as the American Model of Divorce. People divorcing seem to think that they must engage in a long, corrosive and expensive battle in proving all of the little points that in hindsight sometimes seem so irrelevant to their ultimate happiness as human beings.
Perhaps if the court system were more aimed at forcing people to negotiate rather than gear up for contested hearings, more productive work could be accomplished by the parties during their divorce case. Here in Maine, it might be a great deal better if the court set up a system where at several points along the way the parties were forced to sit down and negotiate rather than at only one point along the way. In a Maine divorce case, with children, if the parties indicate during the first meeting with the court that they are not in agreement, the court will automatically send them to mediation. This will be the last time the court will ask them to go to mediation, yet the court is sending them to mediation at a time in the case when they possibly the least likely to want or be able to settle it. There are many reasons for this. For instance, they have not have gotten used to the idea that they are going to get divorced and one or both of the parties are not ready to negotiate, one or both of the parties has insufficient information about financial and other issues to be confident enough to negotiate, or the small block of time the court sets aside for them is simply not enough time to negotiate all of the issues involved in the case. Yet, once the mediation ticket is punched, the parties are done with that as far as the court is concerned.
Of course, the parties may be afforded an opportunity for a judicial settlement conference later in their case, but that is not a given. They might get it, and they might not get it. And, surprising number of the judges express the feeling that judicial settlement conferences are not productive.
Is it any wonder so many cases wind up going to unnecessary hearings?
Maybe a system that was that is designed to send the parties to a series of negotiations rather than force them into a series of testimonial hearings would be a system that would avoid much of the angst and anguish displayed in the article above.
Sunday, June 6, 2010
Where Have All The Lawyers Gone?
Recently, I have spoken to a Justice and two experienced attorneys about their observations that there seem to be few new attorneys engaged in the court work in several of Maine’s more rural counties.
The Justice noted that after many years of absence from the bench in the Somerset County, he went up there to handle a trial docket. He was quite surprised to see that the same attorneys were practicing in the court who were practicing there ten or more years ago. There were new attorneys representing the state, but the same attorneys were there who would been there for many years representing the private litigants. He was really quite surprised.
Also, I recently spoke to two experienced practitioners, one in Lincoln County and one in Waldo County. Both were saying the same thing. That is the experienced litigators were becoming fewer and fewer, and new attorneys were not coming into the county to take their place.
I asked them why they thought they were seeing that. There were a number of reasons, and to none of them could they assign a particular percentage.
One reason is that court appointments pay so little money that more experienced attorneys simply cannot afford to take those cases on as they do not offer enough to cover one’s overhead, and there is little money in them to attract new attorneys who might seek them as a way of building up their practice, as many of us did in the past. I know from my own experience that in terms of real dollars, court appointments were paying better in the 1980's than they are in 2010. The same cannot be said for judicial and clerk salaries over the same period.
Another reason is simply the complexity of cases today and the difficulty attorneys experience when they are subject to endless trailing trial calendars, docket calls, case management conferences and so forth. And also there are now more forms, and new ones popping up all the time. We all understand that. Twenty years ago, many simple divorce files were perhaps a half-inch thick. Today, by the time one gets done with even a fairly simple case is going to be three or four times that size in terms of the amount of paper, and therefore the cost of pursuing the case..
Maybe it is that the amount of time that one has to put in on a case and the costs of that time to a client have simply made dealing with many small matters untenable. I remember discussing this issue with an experienced practitioner here in Kennebec County a few years ago. We both agreed that it probably was not cost-effective to bring a lawsuit in the District Court for an amount less than $15,000 in a case we knew would be hotly contested. $15,000!
So where are the disputes going? Well, I think they are still going into the courthouse, but they are going into the courthouse without attorneys. Years ago it was somewhat unusual to see a pro se litigant in the Superior Court, and today it is very common. In family matters, I think the Family Law Magistrates spend 80% of their day dealing with cases where neither party is represented by an attorney.
Of course, this makes things all the more difficult for the courts. People come in with little or no idea of what they are doing or how to go about it. This leads to wasting time on a grand scale.
So, where have all the lawyers gone? Here in the State of Maine where the largest employer is the State of Maine, a lot of them are in state government. Lawyers are also now working in other enterprises in increasing numbers. But it seems, unless and until things change dramatically (an event I am not holding my breath for), there will be a diminishing of the number of lawyers in our local courts representing private clients.
I would like to hear from anyone who agrees or disagrees with me on any of the above.
The Justice noted that after many years of absence from the bench in the Somerset County, he went up there to handle a trial docket. He was quite surprised to see that the same attorneys were practicing in the court who were practicing there ten or more years ago. There were new attorneys representing the state, but the same attorneys were there who would been there for many years representing the private litigants. He was really quite surprised.
Also, I recently spoke to two experienced practitioners, one in Lincoln County and one in Waldo County. Both were saying the same thing. That is the experienced litigators were becoming fewer and fewer, and new attorneys were not coming into the county to take their place.
I asked them why they thought they were seeing that. There were a number of reasons, and to none of them could they assign a particular percentage.
One reason is that court appointments pay so little money that more experienced attorneys simply cannot afford to take those cases on as they do not offer enough to cover one’s overhead, and there is little money in them to attract new attorneys who might seek them as a way of building up their practice, as many of us did in the past. I know from my own experience that in terms of real dollars, court appointments were paying better in the 1980's than they are in 2010. The same cannot be said for judicial and clerk salaries over the same period.
Another reason is simply the complexity of cases today and the difficulty attorneys experience when they are subject to endless trailing trial calendars, docket calls, case management conferences and so forth. And also there are now more forms, and new ones popping up all the time. We all understand that. Twenty years ago, many simple divorce files were perhaps a half-inch thick. Today, by the time one gets done with even a fairly simple case is going to be three or four times that size in terms of the amount of paper, and therefore the cost of pursuing the case..
Maybe it is that the amount of time that one has to put in on a case and the costs of that time to a client have simply made dealing with many small matters untenable. I remember discussing this issue with an experienced practitioner here in Kennebec County a few years ago. We both agreed that it probably was not cost-effective to bring a lawsuit in the District Court for an amount less than $15,000 in a case we knew would be hotly contested. $15,000!
So where are the disputes going? Well, I think they are still going into the courthouse, but they are going into the courthouse without attorneys. Years ago it was somewhat unusual to see a pro se litigant in the Superior Court, and today it is very common. In family matters, I think the Family Law Magistrates spend 80% of their day dealing with cases where neither party is represented by an attorney.
Of course, this makes things all the more difficult for the courts. People come in with little or no idea of what they are doing or how to go about it. This leads to wasting time on a grand scale.
So, where have all the lawyers gone? Here in the State of Maine where the largest employer is the State of Maine, a lot of them are in state government. Lawyers are also now working in other enterprises in increasing numbers. But it seems, unless and until things change dramatically (an event I am not holding my breath for), there will be a diminishing of the number of lawyers in our local courts representing private clients.
I would like to hear from anyone who agrees or disagrees with me on any of the above.
Tuesday, May 4, 2010
Some People Are Not Ready to Mediate
From Florida Today, April 27, 2010 - PALM BAY, Fla. - "A 33-year-old woman faces felony charges after police said she kicked in the front door of her estranged husband's home and caused at least $18,000 in damage.
Palm Bay police said that because Jamie Foreman was upset about her husband's new relationship, she went through the residence spray painting messages on the walls, pouring orange paint on the floor and in the refrigerator.
She also ripped out appliances and flipped over furniture, police reported.
Later the woman text messaged the estranged husband to let him know that she was coming over to clean up, records show.
Foreman was charged with residential burglary, vehicle burglary, and criminal mischief after patrol officers were called Sunday to the home to investigate the damages.
"She broke seven windows, tore pictures from the walls, flipped over furniture and spray painted the word, "scumbag," on the wall," said Yvonne Martinez, spokeswoman for the Palm Bay Police Department.
"She told us that she didn't recall a lot of what happened." Martinez said the woman was with two other people who were attempting to talk her out of the rampage.
Foreman is being held at the Brevard County Detention Center in Sharpes."
Palm Bay police said that because Jamie Foreman was upset about her husband's new relationship, she went through the residence spray painting messages on the walls, pouring orange paint on the floor and in the refrigerator.
She also ripped out appliances and flipped over furniture, police reported.
Later the woman text messaged the estranged husband to let him know that she was coming over to clean up, records show.
Foreman was charged with residential burglary, vehicle burglary, and criminal mischief after patrol officers were called Sunday to the home to investigate the damages.
"She broke seven windows, tore pictures from the walls, flipped over furniture and spray painted the word, "scumbag," on the wall," said Yvonne Martinez, spokeswoman for the Palm Bay Police Department.
"She told us that she didn't recall a lot of what happened." Martinez said the woman was with two other people who were attempting to talk her out of the rampage.
Foreman is being held at the Brevard County Detention Center in Sharpes."
* * * * *
She did say she wanted to come over and clean up, so maybe she is ready to mediate. Then again, maybe after the trial...
She did say she wanted to come over and clean up, so maybe she is ready to mediate. Then again, maybe after the trial...
Reading this story I wondered if that small indication of contrition would help in a negotiation, particularly if she were ready to be very generous as a result of her bad conduct. And, if her husband was ready to take advantage of that attitude on her part, the dispute could actually settle.
The point is, the parties settle when they are ready to settle and not before. If one or both parties are still embedded in the struggle, settlement cannot be achieved. Once engaged in litigation, people will be forced to the mediation table when the court says they should go and not necessarily when the mediation would do the most good. It is good to preliminarily ask yourself if the other side is ready to settle the case or not.
Tuesday, April 27, 2010
Mediator's Extrinsic Evidence Inadmissible
In the 2008 Indiana case of Fackler v. Powell, the parties took part in a mediation which resulted in an agreement that was approved by the court. When the husband did not pay a promissory note (to a third party), litigation was commenced. (This case went to the Indiana Supreme Court at least one other time, and there were numerous post-divorce motions filed and litigated.)
At one of the hearings, the mediator was called to testify about the terms of the agreement. Ultimately, the court found that the testimony should not have been admitted, partially because the agreement in the eyes of the court was not really ambiguous, but also due to the fact that the mediation was confidential and that confidentiality could not be breached in this case.
Indiana ADR Rule 2.11 provides that "[m]ediators shall not be subject to process requiring the disclosure of any matter discussed during the mediation, but rather, such matter shall be considered confidential and privileged in nature. The confidentiality requirement may not be waived by the parties, and an objection to the obtaining of testimony or physical evidence from mediation may be made by any party or by the mediators."
This is similar to the new Rule 514, Maine Rules of Evidence, (eff. 1/1/10) that created a mediator privilege which states that "(a)ll memoranda and other work product, including files, reports, interviews, case summaries, and notes, prepared by a mediator shall be confidential and not subject to disclosure in any subsequent judicial or administrative proceeding involving any of the parties to any mediation in which the materials are generated; nor shall a mediator be compelled to testify in any subsequent judicial or administrative proceeding concerning a mediation or to any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation."
Also on January 1, 2010, the Maine Supreme Court extended the Rule 408 bar on admission of conduct or statements in mediation to all mediation "undertaken to comply with any statute, court rule, or administrative agency rule or in which the parties have been referred to mediation by a court, administrative agency, or arbitrator or in which the parties and mediator have agreed in writing or electronically to mediate with an expectation of confidentiality, is not admissible for any purpose other than to prove fraud, duress, or other cause to invalidate the mediation result in the proceeding with respect to which the mediation was held or in any other proceeding between the parties to the mediation that involves the subject matter of the mediation." Previously, Rule 408 only prohibited such evidence in court sponsored domestic mediation sessions.
There are also exceptions in Rule 514 mediator privilege that allow the testimony of the mediator, such as a plan to inflict harm or the furtherance of a crime or fraud. But I think that the Maine courts with our rules would have reached the same result as the Indiana court, i.e., the mediator's testimony would have been excluded.
So far, in Maine we have had very few cases involving parties seeking to pierce the veil of confidentiality surrounding mediation, but as mediation continues to be a hugely important part of our practice, we will surely see more. However, our Supreme Court has adopted rules, with appropriate safeguards, which essentially say "What happens in mediation, stays in mediation."
At one of the hearings, the mediator was called to testify about the terms of the agreement. Ultimately, the court found that the testimony should not have been admitted, partially because the agreement in the eyes of the court was not really ambiguous, but also due to the fact that the mediation was confidential and that confidentiality could not be breached in this case.
Indiana ADR Rule 2.11 provides that "[m]ediators shall not be subject to process requiring the disclosure of any matter discussed during the mediation, but rather, such matter shall be considered confidential and privileged in nature. The confidentiality requirement may not be waived by the parties, and an objection to the obtaining of testimony or physical evidence from mediation may be made by any party or by the mediators."
This is similar to the new Rule 514, Maine Rules of Evidence, (eff. 1/1/10) that created a mediator privilege which states that "(a)ll memoranda and other work product, including files, reports, interviews, case summaries, and notes, prepared by a mediator shall be confidential and not subject to disclosure in any subsequent judicial or administrative proceeding involving any of the parties to any mediation in which the materials are generated; nor shall a mediator be compelled to testify in any subsequent judicial or administrative proceeding concerning a mediation or to any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation."
Also on January 1, 2010, the Maine Supreme Court extended the Rule 408 bar on admission of conduct or statements in mediation to all mediation "undertaken to comply with any statute, court rule, or administrative agency rule or in which the parties have been referred to mediation by a court, administrative agency, or arbitrator or in which the parties and mediator have agreed in writing or electronically to mediate with an expectation of confidentiality, is not admissible for any purpose other than to prove fraud, duress, or other cause to invalidate the mediation result in the proceeding with respect to which the mediation was held or in any other proceeding between the parties to the mediation that involves the subject matter of the mediation." Previously, Rule 408 only prohibited such evidence in court sponsored domestic mediation sessions.
There are also exceptions in Rule 514 mediator privilege that allow the testimony of the mediator, such as a plan to inflict harm or the furtherance of a crime or fraud. But I think that the Maine courts with our rules would have reached the same result as the Indiana court, i.e., the mediator's testimony would have been excluded.
So far, in Maine we have had very few cases involving parties seeking to pierce the veil of confidentiality surrounding mediation, but as mediation continues to be a hugely important part of our practice, we will surely see more. However, our Supreme Court has adopted rules, with appropriate safeguards, which essentially say "What happens in mediation, stays in mediation."
Saturday, April 10, 2010
Maine Courts Limit Family Mediation
Well, until the end of the current fiscal year anyway.
The court says it has had trouble collecting mediation fees, so it has to limit the number of mediation sessions until the next fiscal year. How the problem of not getting paid is being addressed, the announcement did not say. That can has been kicked into the next fiscal year.
The issue is probably the huge number of pro se litigants who fail to pay. There was a time when the court would not schedule the mediation until they were paid the mediation fee. Now, they schedule them without getting paid up front. It is administratively convenient to do so, as they have all the parties present after the various Family Division case conferences, and the clerk is able to assign a time when the parties say they can make it.
Hopefully the issue will be resolved soon.
The court says it has had trouble collecting mediation fees, so it has to limit the number of mediation sessions until the next fiscal year. How the problem of not getting paid is being addressed, the announcement did not say. That can has been kicked into the next fiscal year.
The issue is probably the huge number of pro se litigants who fail to pay. There was a time when the court would not schedule the mediation until they were paid the mediation fee. Now, they schedule them without getting paid up front. It is administratively convenient to do so, as they have all the parties present after the various Family Division case conferences, and the clerk is able to assign a time when the parties say they can make it.
Hopefully the issue will be resolved soon.
Thursday, April 8, 2010
Divorce: It's All About Control
"Jockeying for control is at the heart of most contentious divorces, whether it is the stars of Hollywood or the average fan who watches them on T.V." So says Stacy D. Phillips, Los Angeles celebrity divorce lawyer. Stacy's book, "Divorce, It's All About Control: How to Win the Emotional, Psychological And Legal Wars" gets you ready to engage in this endless combat.
To "win" the wars, one often needs the bankroll of a Hollywood star. And, then there are no winners, except counsel, maybe. I am sure Stacy is a really good lawyer, but here in Maine where incomes are not, shall I say, the highest, too few people can afford the endless billing accompanying a knockdown, dragged out divorce battle.
How anyone can possibly believe that these divorce wars do not severely damage children, I do not know. They are the real losers in all this.
Mediation allows you to negotiate for what you need, and maybe what you want also. You know what the outcome is, and you don't have to wait for the judge-of-the-day to decide your fate, maybe in a way that neither party wanted. After thirty years of being in court, I have rarely seen anyone get everything they wanted form a family matter. After it is over, the parents are so polarized and hateful that the kids are a mess and have lost a huge chunk of their childhood. In all but the most well-off families, their college plans are probably in the dumpster too.
At least trying mediation with an experienced mediator with a lawyer's knowledge of family matters will do no harm, and may just resolve the case.
But, as I like to say to my clients, money spent on legal fees is never wasted. Few of them agree with me.
To "win" the wars, one often needs the bankroll of a Hollywood star. And, then there are no winners, except counsel, maybe. I am sure Stacy is a really good lawyer, but here in Maine where incomes are not, shall I say, the highest, too few people can afford the endless billing accompanying a knockdown, dragged out divorce battle.
How anyone can possibly believe that these divorce wars do not severely damage children, I do not know. They are the real losers in all this.
Mediation allows you to negotiate for what you need, and maybe what you want also. You know what the outcome is, and you don't have to wait for the judge-of-the-day to decide your fate, maybe in a way that neither party wanted. After thirty years of being in court, I have rarely seen anyone get everything they wanted form a family matter. After it is over, the parents are so polarized and hateful that the kids are a mess and have lost a huge chunk of their childhood. In all but the most well-off families, their college plans are probably in the dumpster too.
At least trying mediation with an experienced mediator with a lawyer's knowledge of family matters will do no harm, and may just resolve the case.
But, as I like to say to my clients, money spent on legal fees is never wasted. Few of them agree with me.
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