Their day in court

Dahlia Lithwick writes perceptively about how critical it is that litigants — especially in family court — feel they have been heard by the court:

Last week in Las Vegas, Reno, Nev., millionaire Darren Mack shocked the court by pleading guilty, midtrial, to killing his estranged wife, Charla, in June 2006. . . . In the weeks before he murdered Charla, Darren Mack was frustrated and then enraged by Judge Weller’s interim custody and support order, which resulted in shared physical custody and the requirement that Darren pay Charla $10,000 per month in interim spousal support. Darren didn’t pay, Weller found him in contempt, and Darren declared bankruptcy. Convinced that Weller “had made up his mind prior to coming to court, … didn’t like him and no matter what he did, Weller would rule against him,” as a friend explained, Darren launched a crusade. . . .

Mazoltuv Borukhova was outraged by the Oct. 3 decision of Sidney F. Strauss, a state Supreme Court judge in Queens, to transfer temporary primary custody to Malakov, evidently without a hearing. Even if a judicial move like this sounds familiar–courtesy of the Britney Spears 24-hour legal cable extravaganza–it’s almost never done. Judge Strauss, however, switched custody because Borukhova “was allegedly not cooperating with supervised visitation.” . . .

I’ve come to suspect . . . that Mack may have snapped because, after years of feeling listened-to in the family courts, even when he lost, he came across a judge who seemed to reach swift conclusions, without always hearing him out.

After he pleaded guilty last week, Mack went out of his way to thank Judge Herndon, saying he appreciated the “integrity” the judge had shown throughout the murder trial. There is much that needs fixing in the family law system. But, at least from the perspective of these two aggrieved parents, the quickest fix seems to be a family court judge who schedules one more conference, and presides over one more hearing, and truly listens, even when she thinks she’s heard it all before.

These complaints are in the air all day if you are involved, as I am, with litigation matters that implicate anyone but the largest corporations. They’re especially pernicious in family court, where the judges are required to get involved in situations full of raw emotion and to issue rulings that are almost certain to inflame more.

But in almost any case, Lithwick is right: Nothing — nothing — outrages litigants as much as the perception that the judge isn’t listening, has already made up his mind, and isn’t fair. Thus I have found that many settlements, objectively unreachable, have been achievable when a judge, or even a court-appointed referee or other neutral, spends “quality time” in his or her chambers at a judicial settlement conference. It is ideal if both sides will agree to a period where each litigant can have the judge to him- or herself.

All of a sudden it turns out that, quite often, it really isn’t “about the money,” when a person feels he has had his day, however brief, “in court.” It says something about our litigation system, and about the arrogation of power by the government through the courts, that this is so often impossible to achieve. A large part of the complication comes from the increasing criminalization of almost every aspect of the family law system in the states, as extensively written about by bloggers such as Trudy Schuett.

It would be awful to contemplate that judges might start listening to these stories because it’s dangerous for them not to.

Cross-posted at Likelihood of Success.

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