The Family Law News Blog

Judges' Bad "Intuitive Decision-Making" only partly mitigated by procedural requirements, adversary system

Link: Judges Flunk Story Problem Test, Showing Intuitive Decision-Making | ABA Journal - Law News Now.

A study of 295 Florida trial judges, reported in the ABA Journal online and forthcoming in the Cornell Law Review, showed they consistently used "intuitive", superficial, unreflective thought processes in (wrongly) answering three basic logic-testing questions, in the form of word problems typical of a high school algebra test or "brain teaser". None of the problems was long or difficult; each required just a moment's thought to realize that the easiest-sounding, off-the cuff answer was wrong and to then figure out the right answer.

The study recommends some antidotes to the problem:

• more time to deliberate
• written opinions explaining their decisions
• training
• peer review
• checklists

Some commenters likewise noted that the best remedy was the legal "adversary system"-- "If these were presented in an adversarial context, with an advocate for the right answer and an advocate for the wrong answer, I think they would get these simple questions right, pretty much every time."
Another said, "illustrates the importance of written opinions:  element-by-element analysis highlights errors before they become holdings."

Very true. But it's important to realize that we do not have a perfectly Adversary legal system. And many trial court judges never write opinions.

Many of the worst judicial decisions I have seen in my family law career are "sua sponte" afterthoughts by judges, which neither side ever asked for, and which thus did not get to be vetted by the adversary process of legal argument. These include rulings that cost people hundreds of thousands and cause years of extra litigation. How do they happen? Usually the judge gets an idea about something he thinks would be good for the family, and whips it out from under his robe at the end of the hearing. Other times it comes up when he is making a decision "on the papers" where no lawyers are around to argue with him.  Once a judge went through a whole trial applying the wrong statute of limitations to my evidence, and I never heard about it until her final ruling, because no opposing counsel had argued it. Also, the adversary system is muted in modern, therapeutic-minded, "problem-solving courts" such as family courts, juvenile courts, and drug courts, where judges, and various experts not identified with any party, take a lot of initiative (and make a lot of intuitive decisions, according to a critique of such courts in the latest Family Court Review (Jane M. Spinak, "Romancing the Court", 46 Fam. Ct. Rev. 258 (April 2008)).

Some commenters, who evidently have ethereally pure law practices that have nothing to do with money, said that judges don't need to know math anyway. Tell that to my client whose fee award was cut from 150K to 22K by a judge's post-trial "on the papers" math error. Or to the lawyer who would've gotten those fees.

Utah enacts divorce prevention / trial separation package

A Utah divorce lawyer and legislator has sponsored legislation requiring divorcing couples with children, and allowing those without children, to attend "a divorce orientation class ... to help them understand the impacts of divorce, provide resources for strengthening their marriage, and resources to go through the divorce and deal with post-divorce issues with less pain, if they proceed." It also  lets couples file for temporary separation instead of divorce. More information is on the Smart Marriages site.

Text of the legislation, as enacted

Judge candidates critique divorce law & process

Candidates stress ways to speed divorce.

By ADRIAN ANGELETTE
The Baton Rouge Advocate
Sep 11, 2006

[This article presents the experience and views of four candidates for a Baton Rouge family court judgeship. All four candidates seem to have a lot of family law experience, wisdom, compassion, and a commitment to reform. At least two are involved in collaborative divorce and mediation, and two vowed to stop having off-the-record conferences with lawyers without the clients, which they said gives clients the impression of secrecy and corruption. The excerpts below are about reforms in the availability of divorce.]
…
Pam Baker
An attorney since 1984, Baker said she wishes the state would return to a system in which people first filed for legal separations before filing for divorces. The current system, which requires a spouse to file for divorce right off the bat, creates an immediate barrier to reconciliation.

Baker also said a new Louisiana law that forces couples with minor children to wait a year before getting their divorce finalized will create more litigation. Baker said more people will choose to have “fault trials” — or highly contentious hearings where one spouse accuses the other of horrible acts — in an attempt to shorten the lengthened process.
…
Tom Gibbs
…
Like Baker, Gibbs said he thinks the new state law requiring a one-year waiting period before divorces can become final will create more litigation in Family Court and end up not serving the Legislature’s intended purposes.

“Anything that prolongs the process isn’t good for anyone except for the lawyers,” Gibbs said.

The Legislature’s intention was to give people more time to reconcile, he said.

“It’s just a matter of passage of time. Once the parties get to a lawyer, they’ve already decided the marriage is over.”
…
Melanie Newkome Jones
…  And although her parents have “the perfect divorce” and there is no animosity, Jones said, there still are strains, especially for children.

“It’s like the death of the family for a child,” she said.

Family law judge shot

Reno, Nevada family law judge Chuck Weller was shot in his office on June 12, 2006, allegedly  by a man angered by a ruling in his divorce action.    The shooting of Judge Weller points to an alarming phenomenon in which those involved in emotional and acrimonious cases are taking their frustrations out on the judges. Similar shootings of judges and parties to divorce actions, as well as divorce lawyers, have taken place in California courts.

The suspect, Darren Mack, is a multmillionaire father of three whose relatives say he was deeply upset over Weller's rulings in his divorce case.  He is accused of murdering his wife, on the same day.  He is presently a fugitive.

This event gives new weight and meaning to the oft-quoted remark of retired family law judge and appellate justice Donald King, that "family law court is where they shoot the survivors." 

Collaborative lawyers emphasize that it is the nature of court proceedings to have winners and losers, and the nature of trial advocacy to pit litigants against one another using extreme arguments and extreme requests for relief.  Few couples begin a divorce wanting the kind of irreversible collateral damage that typically results from contested court proceedings.

Read more about the shooting of Judge Weller at:

http://abcnews.go.com/WNT/story?id=2086555.

Find out more about collaborative divorce, a peaceful and respectful way to reach resolution in divorce entirely outside the court system, at  www.lawtsf.com and www.collaborativedivorcebook.com.

Custody cases sent to new "problem-solving court"

Kansas City Star | 02/17/2006 | Divorce, Johnson County style

New York Matrimonial Commission calls for court reform, easier divorce

The Matrimonial Commission, an arm of the state's court system, recently issued a report calling for fundamental family court reform, some form of faster no-fault divorce, and many other changes. It is the product of years of study and public hearings about problems with the state's current system for dealing with family law cases.