Briefs

By Tom Noble
8080 N. Central Expressway
Suite 930
Dallas, Texas 75206
214-692-1888
fax: 692-8577
tnoble28@hotmail.com
www.tnoble.com

Friday, January 05, 2007

An Opportunity to Improve Dallas Family Law

Let’s face it. The Texas family law system costs too much, takes too long, is often inefficient, and can be traumatic.  The family bar has tried to mitigate these problems through mediation and collaborative law. But, we can do better. We have five new family law judges in Dallas County who are viewing our local system with fresh eyes.  Many of the policies and decisions they make in the next few weeks will determine whether they improve the system or make it worse.  Here’s my two cents:

I am not going to attempt a treatise on courthouse administration.  But, I would like to see us address a couple of problems, which I experience on a regular basis: (1) courthouse inefficiencies, and (2) the CASE RUN AMOK.

Courthouse inefficiencies : Let’s discuss two types of courthouse inefficiencies: (1) the “cattle call” and (2) passive judges.¹

Cattle Calls

The cattle call comes in various forms and is relatively unique to the legal system.  What am I talking about? When a judge tells 50 lawyers with 25 cases to show up for an afternoon docket call, it’s a cattle call. Prove-up dockets are cattle calls.  General dockets for associate judges are cattle calls.  You can almost always count on a cattle call to waste lawyer-time.  Litigants should not have to pay lawyers for three hours of billable time just so that they have a five minute discussion with a judge about when a case is going to be tried and how long it will take.  It may be one thing if an insurance company or big corporation is paying for a lawyer’s time ² . But, in family law cases, real people are paying lawyers out of their savings or borrowing to pay. We owe it to them to be more efficient.

I did an uncontested divorce recently, and the most expensive part of the process was the prove-up ³ .  In the rest of our society, people make appointments, everyone shows up when scheduled, and stuff gets done.  We need to eliminate cattle calls in our legal system and evolve into a system where almost everything is “specially set”, including prove-ups.  What about cancellations? Back-ups are the most obvious answer. But, regardless, some small movement on this issue would be a big improvement for litigants.

It might help if we expanded the role of court coordinators.  They need to keep everyone’s docket, Judge and Associate Judge. They can call litigants to confirm hearings and deal with back-ups when parties cancel ⁴ .

Passive Judges

Trial judges can be active or passive.  Passive judges do nothing until you come to them with a problem and, even then, they are often reluctant to rule.  At the other end of the spectrum are judges who reach out and find out what is going on with their cases, who care about whether experienced lawyers are abusing their clients or inexperienced lawyers are muddling through their cases on the verge of malpractice, both at the expense of husband and wife and, too often, the kids.

Pro-active pre-trials and status conferences :  For my money, the best judges cut through it.  They get to the facts by talking with the lawyers instead of hearing testimony.  They then tell the lawyers what they will probably do if they hear the evidence.  Based upon that information, many cases will settle.  People do not need to spend days in court while lawyers argue over arcane exceptions to the hearsay rule.  True, there will always be a few cases that require us to act out the courtroom drama. But, many cases can be resolved by judges being more pro-active about their pre-trials and status conferences.

Policies : For that matter, judges can save themselves the trouble of a lot of pre-trials, if they will formulate policies and tell us what their policies are.  Instead of waiting for us to come to you, COMMUNICATE WITH US!

Cases Run Amok : Family lawyers know that some cases are high conflict.  Some of us try to defuse them and, unfortunately, the worst of us exploit them. When a judge, especially as associate judge, senses that a case before him is high conflict, one thing he should consider is “early intervention mediation”.

Early intervention mediation : One of the biggest mistakes we make is conceiving of mediation as a tool that is only good for the final resolution of ultimate issues after “discovery has been completed”. Courts should order mediation as soon as they sense there is conflict, which means pretty much anytime someone shows up for a hearing.  On the other hand, mediators should provide more flexible formats and deal with problems on an hourly fee basis.  Let’s face it, good mediators don’t come cheap, nor should they.  But, we err in waiting to talk peace until two LITIGATORS have spent significant sums of money on needless discovery and various displays of banty-rooster like behavior. A good mediator can get hold of a case and, even if the parties are not ready to get down to brass tacks on everything because the business needs evaluating or a rent house needs to appraised, s/he can bring order to the chaos and get the parties on track towards an efficient negotiated settlement, and they can come back later to complete their negotiated settlement.

If not us, who?

¹ To be distinguished from “lazy”.
² But, is it, really?
³ For the uninitiated and those few of you have not had the “divorce experience”, a prove-up is when you appear in court and swear that you don’t get along and you’re not pregnant and didn’t just stop over for a shopping spree in Dallas and file on your unsuspecting spouse; or, something like that.
⁴ And, be just as miserable as the poor staff who coordinates the schedules for us mediators.