Domestic relations attorneys live, perhaps more than any other lawyers, in an environment closely controlled by the judge on the case. As the court almost always has the power to be the final decision-maker, attorneys have to be mindful of the judge’s procedural demands in an effort to not prejudice their client’s substantive positions. That environment makes dealing with court-imposed roadblocks a more difficult calculation, one requiring subtlety and thought. The following are some common roadblocks and potential solutions.
Roadblock: The Court Fails to Allot Sufficient Time for a Full Hearing
"Counsel, do you know how many cases this division is handling? You can do this in three hours."
Docket overcrowding is a cliché because it is true in many cases. It is also not unfair for a court to suggest that some attorneys will expand their cases to fill any allotted time. Many judges use these two truths to limit the time for hearings, often to unreasonable degrees. When a court prevents a full airing of the facts, litigants are rightly frustrated and often resent that they did not get to have their say. This often leads to subsequent litigation as the parties continue to seek a full airing of their points. Alternatively, cases that likely would benefit from an impartial hearing are forced to consider settlement on terms that satisfy neither side. While courts often seem to believe that any settlement is better than a hearing, experienced practitioners know that some parties need to “hear it from the court” before they are satisfied. Cases that do go to abbreviated hearings can result in the court making poor decisions because of limited facts. The faith of some judges that they can reach the “heart of the case” without all the facts is not always supportable.
Of necessity, good family attorneys have to develop techniques to address these issues. This starts with openness with clients about the problem from the first meeting. Telling clients that a particular court or judge is not generally allowing lengthy hearings is an inherent part of providing the guidance clients seek from us. It also allows discussion of alternative ways to resolve the case. This might well require a different choice of mediator. If a party, knowing the judge will be unlikely to give the case the time it might need, can at least be heard by a mediator who does express empathy and understanding, then the need to have his or her say is at least partially satisfied.
If a case is going to be complex and require more court time than is regularly granted, it is vital to identify that from the beginning. If the court knows from early on that a case has legitimate complexity, a request for more time is often considered with more sympathy. The attorney seeking more court time should avoid summary statements about the need for a longer hearing. Giving specific reasons for the need is always preferable. For example, a considered discussion of the mental health issues and the experts needed to describe them is much better than a generic “this is a highly disputed custody case.” Similarly, a demonstrative spreadsheet of a complicated financial picture can help a court visualize the need for detailed testimony.
Courts are also likely to be open to granting more time if the attorneys have demonstrated that they are working to present the case in an efficient manner. A lawyer contemplating a request for a longer hearing should already have approached opposing counsel to discuss appropriate stipulations as to evidence and exhibits. Attorneys should also be ready to convince the judge that additional time will be well-used, as the attorneys have focused the issues to their key points.
When the roadblock of insufficient hearing time cannot be avoided, it is imperative for the lawyer to be prepared for streamlined presentations that identify and focus on the key factors. Summary exhibits and offers of proof represent two possible ways to streamline what would otherwise be a lengthy presentation. For example, if the claim is that a father travels for business too often to have significant time with the children, there may not be time to offer the thousands of pages of airline records that reflect the flights he has booked. However, a summary exhibit, if properly prepared, could present the dates and times of his departures and returns in a very efficient way. Similarly, offers of proof provide a means of submitting summaries of the proposed testimony of one or more witnesses in a much faster way than live testimony.
With both measures, familiarity and compliance with the local rules regarding these time-saving measures will be imperative. If an attorney is forced into a limited- time hearing, he or she must keep track of time or have someone present to do so. Being told, as you call your client, “You have eleven minutes left, counsel” is something that should never happen.
Roadblock: When the Judge Inserts Her Opinions about the Case at an Early Stage
"It seems to me that this case is really about..."
While experienced attorneys try from the first meeting with a client to begin to narrow the issues, that endeavor must be counterbalanced with an openness to learning new facts that may well change the parameters of the litigation. A judge who forms conclusions before hearing all the facts can bend the case from its very beginning, preventing the parties from addressing what may be key issues or offering what may be relevant information. No person is immune from the influence of his or her own preconceptions, and judges remain human. Clients also become frustrated when their needs are ignored by the court. It is important for counsel to listen carefully to judicial statements in order to identify those preconceptions. Experience with the particular judge can also be used to predict court priorities.
Rational attorneys will take the lead from the court and present their case in the order of importance expressed by the judge. If the court repeatedly discusses children’s issues, good counsel will lead with those. The issue arises with a judge who imposes her priorities on a case where counsel and clients strongly disagree.
Gently directing the court to issues the judge may be ignoring requires tact and often cooperation with opposing counsel. If opposing counsel agrees about priorities, joint motions or disclosures attempting to describe the “real” issues and supported by stipulations can instruct the judge. If, however, the opposing side does not agree, contested motions may be necessary. These need to be supported by facts from discovery and affidavits. Simply stating one’s client’s priorities is insufficient, and clients need to be advised as such.
Settlement discussions are also valuable opportunities to address issues ignored or minimized by the court. Hopefully, if the issue the court sees as important is fully or partially resolved, the court can be convinced to look elsewhere.
One instance when the court’s insertion of opinions and priorities can be beneficial and not a roadblock is in cases where one or both of the parties remain focused on an issue that may have emotional significance but not legal significance. For example, a spouse who was angered and shocked upon learning of the other party’s multiple extramarital affairs is not likely to feel vindicated in a state where claims of fault are not only irrelevant but inadmissible. In that kind of instance, an early reminder from the judge about what will or will not be useful to making decisions may assist counsel in keeping the client focused on the issues the court will be addressing.
Roadblock: Obsessive Compliance with Arbitrary Rules
"Counsel, didn't you read my case management order regarding the numbering of exhibits? Case continued."
Compliance with the rules of the court is the duty of an attorney. Reading and understanding the rules and following them even when they appear petty and irrelevant is also part of the job. However, some courts use such rules to avoid or block the hearing of the merits of a case. Draconian application of rules also enables court staff to use the rules to avoid even getting to court. Rules can also result in a one-size-fits-all attitude inappropriate for certain nonroutine cases. Finally, they can allow judges to blame attorneys for delay.
As always, the best way to avoid such measures is to assess them early. In areas where judges are allowed to issue their own case management orders, read them carefully when they are issued. Try to discern if the rules adversely affect the preparation or investigation of the case. Early deadlines for witness or exhibit disclosure will affect the timing of discovery of facts. Be aware that immediate discovery might be needed even if the case appears straightforward. Explain to your client that additional expenditures may be necessary in order to be ready for deadlines. Be sure your staff is aware of the rules so that you are not renumbering exhibits on the morning of court. If your case needs exceptions to court rules, addressing them early, preferably with stipulations by opposing counsel, gives the best results. Even inflexible judges can be persuaded in circumstances that can be shown to be unusual.
Rules that appear to be conflicting or inconsistent also represent a stumbling block. The best strategy may be to draw such apparent conflicts or inconsistencies to the judge’s attention early in the case, and to seek direction or clarification. As well, if the case goes to trial, be sure to have copies of the various rules and procedural orders handy. Nothing is worse than trying to argue that there has been compliance with a procedural directive when counsel does not have a copy or only vaguely recalls what it may have said.
Attacks on the efficacy of the rules themselves should be left to discussions with your partners or to bench-bar conferences, not made to the judge.
Roadblock: Judicial Delay
"I know the judge was working on that order. We will let you know."
Judicial delay is epidemic, and the effects are amazing clear. Delayed rulings undermine faith in the court system, frustrate clients, and increase conflict. Refusal of the court to rule on preliminary matters hinders negotiation and resolution, and prevents adequate trial preparation as well.
Dealing with delays from a court is one of the hardest roadblocks for an attorney to address. Obvious actions like “nagging” the court often yield counterproductive results, including a difficult relationship with court staff. Complaints to presiding judges must be reserved for only the most extreme cases, and even then, they must be made with full knowledge that later interactions with the judge will be at best unpleasant.
If a judge has a history of delayed orders, politely asking the court to set a hearing for a later event, even one unrelated to the issues at hand, can act as a deadline for the court. If it truly appears that a matter has been forgotten, filing a related motion or disclosure might jog the court’s memory.
Cases where the court simply refuses to rule are the most difficult. If your court security is such that a “drop in” is possible, some face time without mentioning the case can be helpful. At times, having another attorney in the firm (this is the time for the senior partner to step in) can at least give another voice to the frustration. Alternating these efforts with opposing counsel can at least prevent the court from holding it against either side.
Having empathy for the court can be a major step toward making a system that works better for everyone.
A Last Word: Empathy
Most domestic court judges are dedicated professionals toiling in a docket that is often treated with disdain by those in other areas. Consideration of the reasons for their actions can often lead to new routes around roadblocks. As advocates, we ask judges to empathize with our clients and their needs. Returning that empathy to the court is a major step toward making a system that works better for everyone. Bench- and bar-type meetings or roundtable discussions sometimes produce better results than uncoordinated efforts by individual lawyers. Moreover, an approach formulated as an effort at mutual problem-solving may be better received than criticisms of the court system or individual judicial officers. Some recognition that the judges may have complaints or “pet peeves” about lawyers often makes a two-way dialog more productive. fa