Judicial independence is threatened because self-satisfied courts & lawyers don't listen, don't explain, don't adapt to public's needs

So says Jesse Rutledge of the National Center for State Courts in Williamsburg, Virginia, based on the Center's annual surveys of public opinion about the courts, and decades of working on how the courts interact with the population:

"It’s really easy to blame efforts to erode the independence of our courts exclusively on shrill politicians or the fragmented news media. ... With all this outside pressure, is it any wonder that public trust in the courts—the stock and trade that underpins the ability of the courts to be independent—continues to erode?

"Unfortunately, those of us on the inside of the system may have myopia. ...  The data shows that Americans who have had direct interactions with courts trust the judiciary less than those who haven’t. Put differently, those who come to our courthouses aren’t as impressed with what they see as we are with ourselves.

"... Courts must take swift action to improve customer service, simplify forms and processes, and move as much of their routine business online as is practicable for their community. Americans perceive judges and the lawyers who appear in their courtroom as sharing an interest in delay, and at the same time an increasing number feel they are being shut out of the legal system entirely. Simplifying byzantine forms and procedures could go a long way to allowing more people to help themselves. ...

"Americans are sending a clear message about their courts. They don’t need another lecture on the virtues of jury service. Instead, they want courts that are accountable, connected to their communities in meaningful ways, and where they are able to take care of routine business expeditiously. Court users—whether they are litigants, jurors, or those seeking to pay for a traffic infraction or to file a simple form at a clerk’s window—should be placed in the middle of every equation, not treated as an afterthought."

Supporting independent courts—from the inside out


Where did we get those old law books? It's quite a story. It starts when Washington was president ...

These law books have been handed down from lawyer to lawyer, including:

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Richard Henry Lee,
1732-1794. Justice of the Peace, Delegate to the Virginia House of Burgesses and the Continental Congress, signer and leading proponent of the Declaration of Independence, President of the Continental Congress 1784-85. But most importantly, he did more than anyone to ensure that a Bill of Rights was added to the Constitution. He bought and inscribed some of these books for his son, Francis Lightfoot Lee II, 1782-1850.

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John Janney,
1798-1872, was a Quaker, Unionist lawyer in Leesburg, Virginia. Among his many great works was the successful defense of free-born Underground Railroad conductor Leonard Grimes of Leesburg. He was almost President: in a pivotal Virginia Whig caucus, he tied with John Tyler on the first ballot for the 1840 vice-presidential nomination. Henry Clay said, “He is the first man in Virginia and has no superior in the United States.” He was a delegate to the 1851 Virginia Constitutional Convention, which tried to heal the breach between eastern and western Virginia, and President of the 1861 convention that he hoped would preserve the Union. It swung in favor of secession when Lincoln called for troops to march against the South. He then had the bitter honor of formally giving Robert E. Lee charge of Virginia’s forces.

“Squire” Lawrence Bowers, 1810-1901, was called that because he was a local magistrate in Boone’s Creek, Washington County, Tennessee. He helped found the Boone’s Creek Academy. Ralph Waldo Crouch, Sr. was his grandson.

 Matthew Harrison, 1822-1875, was a Leesburg lawyer, known in the legislature as “The Loudoun Lion”.

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The Rev. Alexander Broadnax Carrington,
1834-1912, from Charlotte Court House, Va., studied at Washington College and practiced law, but then chose the Presbyterian ministry. He was chaplain of the 37th Virginia Infantry under Stonewall Jackson. His final pastorate was at Greenwich Presbyterian Church in Nokesville, Va.

Landon C. Berkeley and James P. Harrison of Berkeley & Harrison were prominent Danville, Va. lawyers in the late 19th Century.

E.S. Oliver, owner of our French Code Napoleon, was a New Orleans lawyer and businessman in the mid-19th Century. He won Lavillebeuvre v. Cosgrove, about the right to reopen a boarded-up window through a common wall between two properties, under the French version of easement law, called “destination du père de famille.” He lost a case against his agent for letting a debtor pay him in Confederate money and investing it in Confederate bonds, because he didn’t complain when he heard about it, thinking he could “sit on his rights.”

Samuel Ferguson Beach, a Connecticut-born Alexandria lawyer, city councilman, and banker, lost a Northern Virginia congressional race in early 1861, then filed a challenge to election practices at Ball’s Crossroads, now Ballston. He was a leading member of the Constitutional Convention for the "Restored Government of Virginia," and unionist Northern Virginians elected him to Congress, which refused to seat him. He represented the Lee family of Arlington House, and other former Confederates, in Virginia and U.S. Supreme Court cases overturning the wartime seizure of their land. He won Colston v. Quander, upholding a Fairfax marriage that was illegal when made because it was between a slave and a free Negro. In other cases he argued for upholding a law preventing free blacks from testifying against whites, and that Congress’s return of Alexandria and present-day Arlington to Virginia was unconstitutional. He helped lead efforts to give black Virginians voting rights, and was appointed United States Attorney for Virginia. He was once co-counsel with future President James A. Garfield.

Samuel McCormick, 1849-1937, son of Justice Francis McCormick of Weehaw, briefly served in the Confederate Army, then studied law at the University of Virginia, where he owned these books, and then at Washington College, now Washington & Lee University. He was an honorary pallbearer for Robert E. Lee. He was a lawyer, farmer and businessman in Clarke County, Virginia, and was Court Clerk there from 1904 to 1912. 

Joseph J. Darlington, 1849-1920, was a leading Washington lawyer, citizen, prize pig breeder, and president of the City Orphan Asylum. He taught law at Georgetown University, and gave Ralph Waldo Crouch, Sr. a copy of his treatise on The Law of Personal Property. They were neighbors in Herndon and commuted together on the W&O.D. Railroad. A memorial to him at Judiciary Square has been criticized for its utter lack of resemblance to him. 20130705_150437

Ralph Waldo Crouch, Sr., 1881-1968, was youngest of ten children of a Baptist preacher, and his inheritance was one horse, which he sold to buy a ticket to Washington to seek his fortune. He did a variety of jobs, including streetcar conductor, and went to school at night while raising a growing family. He graduated from Georgetown Law in 1912, and was a tax lawyer and estate-tax auditor for the U.S. Government, commuting by train from his in-laws’ farm in Herndon. He later joined Crouch & Crouch, practicing in Arlington and Richmond. In retirement he moved back to the farm his great-grandparents had settled in the late 1700s in Boone’s Creek, Tennessee.

George Edelin, 1891-1938, Georgetown Law 1918, joined Julius Peyser’s general and administrative-law practice in Washington, D.C., where his early work included U.S. Supreme Court cases. He was a law professor at the University of Maryland.

George J. Schultz, 1885-1961, earned doctorates in law, medicine and divinity, and was a law professor at the University of Maryland. He married George Edelin’s brother’s widow. After his death his law books were entrusted to her goats, in his barn in Hyattstown, Maryland, until Richard Edelin Crouch retrieved a few of them.

John Walter Edelin, Jr., 1905-1980. His naval career started on President Coolidge’s yacht, where he assisted the President in an unannounced amphibious landing at George Washington’s birthplace, to fierce combat in the Battle of Peleliu, to the military governorship of the Palau Islands.

John W. Jackson, 1905-2006, was a legendary Arlington prosecutor and lawyer. He taught trial skills at the George Washington University Law School. In semi-retirement he was still an eminence and mentor to everyone in the office suite of John Perkins, where Richard Crouch had his first full-time law office after leaving Family Law Reporter.

Howard Wade Vesey, 1906-1969, was a Washington lawyer who later moved to Santa Barbara, California where he was also a real estate developer. He died in a plane crash and his wrongful death case ascended as high as the federal Ninth Circuit Court of Appeals.

Thomas Gordon Crouch, 1910-2004. His practice with Crouch & Crouch in Arlington and Richmond emphasized tax, business, probate and estate planning law. A dedicated hunter, fisherman, sailor and Shriner. He led the funding and organization of the restoration of his great-great grandfather Jesse Crouch’s log house.

Leroy E. Batchelor, 1926-2012, served in World War II, including the Battle of Iwo Jima, and the Korean War. He was a criminal defense and general practitioner in Arlington. He represented Arlington County in a school desegregation case. He once argued before the U.S. Supreme Court. An accomplished seaman and boating instructor, he retired at 62. He and his wife spent much of the next two decades at sea.

Jack L. Melnick, 1935-2013, was an Arlington/Falls Church legislator, prosecutor, civic leader and lawyer. In the legislature, he led the effort for a crime victims’ compensation fund. He taught at George Washington University Law School. He restored and drove a Model A Ford. His probate and elder law practice continues with his son, Paul Melnick.

The Hon. W. Richard Walton, Sr., b. 1938, is a civic leader, former prosecutor and retired Common Pleas Court Judge in Ironton, Ohio.

Thomas W. Murtaugh had a general, criminal, juvenile and family-law practice in Leesburg, Virginia. He represented people from all walks of life and excelled at presenting the human reality of his cases in everyday terms. He was gentlemanly and kindly to a fault. Richard and John Crouch learned much from him. He gave us John Janney’s books when he moved to West Virginia, where he practiced occasionally but is now fully retired.

Bill Findler 1948-2007 was widely admired as an Arlington lawyer, but even more as a Washington-Lee high school track coach, pillar of the church, and father of five. When he died suddenly after a morning run, his obituary on the sports page of the Northern Virginia Sun quoted John Crouch: “He was a leader for all of us. He was strong and honest. He told it like it is. He dealt with every situation with humor and integrity.”

Bryan Garner is a leading authority on legal writing and drafting. He redrafted the Federal Rules of Civil Procedure and several similar sets of rules, edits Black’s Law Dictionary, and wrote several books on legal writing, including two coauthored with Justice Scalia. It’s a stretch to include him here, because I don’t have a book from his personal collection; he gave me a copy of his Black’s as a sort of party-favor for answering a question right in a seminar. As I look up to him as a life-changing guru and kindred spirit, I cling to it like Dobby the House Elf clung to his employer’s discarded glove.

Richard Edelin Crouch, b. 1940, is a prolific lawyer, author, and activist.  He had a military, criminal, civil liberties, public interest and general practice before limiting his practice to family law and legal ethics and malpractice, and especially international and interstate family law. At the same time he edited BNA’s Family Law Reporter and other publications, then the Virginia State Bar’s Family Law News, and several family law books and practice guides. He is now retired.


Think family court is a big racket? You're not alone ... until you get to court. Then you truly are.

One of those crank lawsuits of a kind that gets filed and discarded every day has, for once, gotten big coverage in a mainstream newspaper. "Lawsuit claims divorce court is a racket: Dismissed at district level, case is being appealed to 9th Circuit". San Diego Union-Tribune

If you polled people on the street, you'd find that to be a pretty common view, perhaps not a majority but a plurality of the same kind that makes the presidential primaries so interesting. But in the family court system, people who have cases there, and start saying things like that, are treated like the lunatic fringe. To the judges and everyone else involved, the issue is no longer whatever substantive question was originally in dispute. The issue is now the disgruntled litigants' extremism and behavior.  They are sometimes put under special orders keeping them from filing anything unless and until a single, permanently-designated judge has reviewed it and allowed it.

These litigants too often put their "last stands" on principle ahead of their actual parenting of their children. They are unwilling to bow and bend to a system they see as illegitimate and corrupt, even if they understand that that is the way to be treated better and get more time with their children.

Is the system a racket? No. Not where I work, anyway. But it doesn't have to be. It still works in a way that looks irrational to most people. It still takes people, some already cranky, and some fairly normal, perhaps even too nice, processes them, and cranks out a huge number of cranks.

When our state legislators and all those of us who help mold our culture, all the "second-hand dealers in ideas," as Hayek called us, decided decades ago to encourage widespread divorce, this was a major part of what we created. 

Americans are not brought up and educated in how a family court system works. In the courts which we learn about on TV and in civics class, a jury of 12 average local people makes the big decisions, and the judge is just a referee. And those decisions are about who did something wrong and who gets punished.

Parents who have chosen divorce or unwed parenthood, or had it thrust upon them, have no idea that instead of that system, they are going into a system where regardless of fault or faultlessness, a judge will tell them in great detail how to live and move and raise their children, now and forever until they all are grown. Nor that instead of one big trial to establish guilt or innocence and resolve everything, they may be back in court every few weeks, months or years, for enforcement, monitoring, and revision of those orders.

In that way, the family law courts work like the ecclesiastical and chancery courts that used to handle family issues, the ones that Dickens savaged in novels like Bleak House. And for good reasons, because a family is not like a business contract or a car accident.

But they also feature the most delaying, expensive, and inflammatory features of the American legal system, because this is America -- you always have the right to your day in court, to litigate about everything, to insist on strict compliance with the rules of evidence -- even when dealing with areas of life where people don't generally keep the relevant evidence, or where no witnesses are there when the really important stuff happens, or where evidence and testimony are easily faked. You can always appeal, and appeal. You have to go through all the expensive, exhausting procedures that were designed for big business litigation. Your lawyers have the ethical duty to do what you say you want, after doing their ethical duty to advise you about a bewildering array of awful things that you could do to your ex and your ex might even now be doing to you. And each of these individual things is necessary and proper, as part of the greatest legal system in the world. Even if you hate to comply with them and hate it when the other side does those things, you want the other side to comply and you want to be able to do those things to them.

That's the system we put far more families into when we tried to make divorce easier and more humane by enacting quick, unilateral, no-fault divorce, letting far more people jump straight into court without first working things out in an agreement.


Pros and cons of one-year vs. two-year separation period for contested divorce litigation -- a divorce lawyer reflects

At the end of 2017, couples began to be affected by Pennsylvania's the new divorce law, which cut the living-apart period before filing contested no-fault divorce litigation, without mutual consent and without all the financial and child-related issues worked out, from two years to one year. Carolyn R. Mirabile, a partner and family law group head at Weber Gallagher Simpson Stapleton Fires & Newby in Norristown, Pa., looks back at what seemed to have worked better under the old law, and what improvements she hopes for from the new law. 

One Year Later On the One-Year Separation

By Carolyn R. Mirabile in The Intelligencer - Mar 15, 2018


My comments on proposed limited-scope representation rules; your comments due March 1

The Virginia Supreme Court and the Judicial Council are considering a new rule to deal with limited-scope representation, especially assistance to people who are already in litigation. My comments on it are below. The proposal, and where you can send comments by March 1, 2018, are at:

Advisory Committee on Rules of Court, Judicial Council of Virginia, "LIMITED-SCOPE REPRESENTATION ISSUES".

Overall comments — 
 
This is a very important reform. Full-scale representation in family law litigation is often unaffordable even by people who would be considered upper middle class. And it takes both divorcing spouses to prevent any particular divorce from becoming unaffordable, long-running litigation.
 
The proposed rule has many extra cautionary requirements for the attorney, or the attorney’s name and contact information, to be present in court, and on documents, even for issues where the lawyer is not involved. Please bear in mind that each of these requirements comes at a cost, not only of the attorney’s time, attention, and availability for other cases, but also by sowing predictable confusion among clients and especially their opposing parties, who aren’t involved in the limited-scope agreement. When lawyers’ names are on papers or a lawyer is present, lay people are going to assume that the lawyer is a prime mover in whatever is going on. Lay people, and even the lawyers themselves, will often feel that the lawyer has some responsibility to intervene or advise about whatever comes to the lawyer’s attention. Lawyers' instinct to be helpful will inevitably cause “mission creep” in many cases. So all such requirements should be kept to the minimum necessary.
 
As lawyers comply with these additional requirements, clients and other members of the public may feel that the lawyer is hanging around like a vulture waiting to insert herself into the proceedings and expand her involvement so that it is no longer limited. Or interfering, intruding and violating the client’s desire to limit the scope of the lawyer’s work, by writing to the client with repeated notifications of well-known facts about hearing dates, etc., whenever the lawyer is cced on something the other side sends out. Many clients already respond this way to communications that court rules and ethics rules require us to send.
 
Line comments
 
9-10 
 
 I agree that a lawyer should not be present but generally uninvolved, only popping up now and then with objections. That would be chaotic and unfair.
 
But I can also see the value in having an attorney handle only a particular motion in limine or motion to suppress. It seems fairly clear that the intent is to allow that, but it would help to make that explicit.
 
11-13
 
" A notice of limited scope representation is not required for  … (ii) services performed by an attorney before any litigation is pending”
 
Does that dispensation also apply to the requirements to “indicate” or “identify" in (1) (F), Alternative versions 2 through 5?
 
I believe it should apply. Either way, that question should be answered explicitly.
 
26 et seq. — Alternative versions of (F)
 
In all versions, the term “papers for submission to a court” is intended to be clear, but what about marital separation agreements? They are not court filings. They are binding contracts when the parties sign them, regardless of whether they are submitted to a court. But whenever one gets signed by both spouses, perhaps 95% of the time there is going to be divorce, and the agreement i8s going to be submitted to the court as part of the divorce process.
 
I think limited-scope assistance is crucial, so I oppose Alternative # 5, which essentially bans limited-scope, and Alternative # 4, which creates a presumption against it; imposes a needless requirement to essentially file a notice of appearance, and then to file a notice of disappearance.
 
86
 
“Papers” sounds vague. I think you mean litigation documents such as pleadings or discovery requests, but we need a more precise, comprehensive, understandable, and distinctive term for that.
If it’s intended to mean everything, including settlement correspondence, that’s reasonable, too, but that too would need to be clearer. Because the word “papers”, to a lot of people, vaguely indicates papers that are somehow official, binding, and/or threatening.
 
88
 
The requirement should be to notify the “sender”, not “the adversaries”. They might not be the same people.
 
 
notify the adversaries in writing of that fact
should be changed to  
notify the adversaries, in writing, of that fact
or
notify the adversaries of that in writing
 
But really, “that” or “that fact” might not make clear to everyone which of the facts mentioned earlier in the sentence it refers to, so it would be better to say, 
 
“the attorney must notify the sender that the documents received deal wholly or partly with matters outside the scope of the limited representation,"
 
107-108
 
"(D) Contacts by adversaries or co-parties on matters within the limited scope of 108 representation shall be with counsel …"
 
What about family law cases, where many couples legitimately continue some kinds of negotiation between themselves, even when they both have counsel who are negotiating at the same time? 
 
110-111
 
“copy served upon the attorney making a limited scope appearance” — 
 
Would serving the attorney require that attorney to respond and notify as required in (3)(C)? If that happens once, it makes sense or is at least harmless. But in litigation where filings go back and forth almost every week, it’s going to drag the limited-scope attorney into a lot of busy work, and confuse litigants — the client and/or the opposing party — about the attorney’s role.
 
115-116
 
(A) — attendance at all court proceedings, outside the scope,  should not be required if the rule is truly allowing limited representation. I would expect attorneys to charge for this time, and it would be a major burden on the clients and the attorneys.
 
John Crouch
VSB Council Member for 17th Circuit
Fellow, International Academy of Family Lawyers (Formerly IAML)
and International Academy of Collaborative Professionals
 

State Bar's changes to interstate disbarment/suspension rules, and professionalism course mandate, made official

The Virginia Supreme Court has approved rule changes passed by the Virginia State Bar Council to allow more flexibility and discretion in applying the rules that (1) require new lawyers to take a professionalism course and (2) duplicate other states' and courts' punishments for ethics violations. Both revised rules take effect March 1.


Is family-court duty cruel & unusual punishment for judges who cuss out criminals?

<<According to the Tribune, Sacks “has long had a reputation for delivering strongly worded rebukes from the bench.” He was reassigned for four months to domestic relations court in 2004 for what the Tribune describes as his “profanity-punctuated lecture” during a sentencing hearing.>>

Judge's sarcasm was 'unwarranted and wholly inappropriate,' appeals court says