Tuesday, November 25, 2014

Should I Be Part of a Class Action Suit Against My Guardian ad litem?


Recently there was talk about doing a class action suit against a particular Guardian ad litem. Three years ago I would have been in favor of something like that. Today not so in light of all of the actions brought against Guardians ad litem in the state. In 10 years there have been numerous complaints filed against Guardians ad litem with the Head Judge (this does not even take into consideration the complaints filed at the lower court). Out of about 150 complaints initiated by consumers do you know how many were successful in correcting/ removing the Guardian ad litem


ZERO/ NONE

Well there were two removed by the courts because of mental health issues but those were not initiated by consumers (I stand corrected). As a consumer interested in filing a complaint at the highest level you would be better off investing in the lottery. You stand a far better chance of getting a result (any result) from the purchase of a lottery ticket than you would in court.

In three years little has been accomplished in courts - rolling the dice and playing by their rules. They (the courts and divorce industry) hold the cards. On the other hand there is no reason holding us back from playing with a different set of rules a different deck of cards. Think Different.......

 Find us on Facebook of email us at MeGALalert@gmail.com

Wednesday, November 12, 2014

Family Court , 'Quo Vadis? "improvement, reform or implosion"?


As we observe the big picture of Maine’s Family Courts, we sense that  our family courts appear to be slowly imploding. It is not a visibly dramatic happening that grabs public attention. It is largely unnoticed and unrecognized symptoms of decay from within. This process of decline is unnoticed, except, perhaps, by those who pass through the family court experience , and many of these victims are so wounded by the experience that it is hard for them to view the experience in a larger perspective. It is frequently hard for all of the active players - judges, lawyers and users - to "see the woods for the trees"! Let us consider a few of the amazing "systems changes" that are progressing, unnoticed, and that are, like termites, silently eating the structure of family courts from within.

“THE "TERMITES":  From our perspective, serious structural damage to family courts is being caused by the seemingly inexorable growth of 'pro se'  (self) representation in family courts. This phenomenon is occurring, not just in Maine, but in every state in America. In Maine, the figure for 'pro se' representation in family courts is reported to be a startling 74% and growing. There is also the eye-popping figure of 86% of family court cases, which have only ONE lawyer. The figures for 'pro se' representation, we might add, are even higher in Connecticut and NY. One has to ask, what is the impact of this amazing growth of self-representation on the family court system, on normal, professionally guided and determined family court proceedings? What happens to a professional legal system, with long traditions and well-established protocols for inter-professional relations, with a focus on complex, human problem solving, When one of the two "players" in these contests is underrepresented and completely  ignorant of how to function in the well-structured, traditional setting? General systems theory would suggest chaos and profound, unprogrammed, unintended changes in the way the system functions. Well-intended attempts to patch the traditional 'status quo' models, further change the original system and bring with them further unintended consequences. The working system is not as it was - try as it may. Some call it broken. The ‘pro se’ “trend is not its friend”!

WHAT HAPPENS IN THE SYSTEM?: With the invasion of 'pro se' litigants in family courts, desperate, frightened people with no knowledge or skill in the law and its traditions, turn the courtroom into a scene of confusion, stress, emotional pain and misunderstanding. Judges struggle mightily with "judicial impartiality" in dealing with the 'pro se' litigant. To help, or not to help - and how to do so without unbalancing fairness and throwing impartiality to the winds. How can a judge - without guidelines or traditions for handling this invasion of amateurs - try to maintain a degree of balance and proportion in a situation in which the combatants/ competitors are so unevenly matched? The 'pro se' litigant is always anxious, frequently frightened (or terrified) by the utterly unfamiliar environment, by the task of hoping to rescue a beloved child and by the daunting tensions of the contest. It is a forced visit to a very "foreign country" with unfamiliar rules, language and procedures. How to cross examine, what are rules of evidence and, then, there are all too frequently the "objections" raised at every turn by an opposing lawyer. What do they mean to a 'pro se' litigant? How should they be handled by the litigant and/or by the judge? Can an "impartial" judge help a baffled 'pro se' litigant deal with “objections”? Some judges do try to offer help and to be kind without violating impartiality, but it poses serious challenges to all of the "players". There are also a number of very troubling reports that some judges are rude and vent frustration with the ineptitude of 'pro se' litigants. "Don't come back to this court unless you have a lawyer!" has been the dictum of several judges. We’d say, there is a crying need for data to measure the scope of the problems? Then, one can address the second issue: how does one correct this total systems problem?

We'd answer those judges, who resist dealing with the legally unrepresented, by saying that no one in their right mind would undertake the personal stress and misery of 'pro se', unless motivated by great love for their children and financial hardship! The 'pro se' situation is never a happy choice for anyone, and no one decides to go 'pro se' unless they are utterly desperate! There is also the important question of "outcome"? Who wins  in these uneven combat situations? No one has answers to this question, but we are inclined to say, "Three guesses and the first two don't count!”  However ... there is a crying need for actual data to move the conversation beyond anecdotes.

PRESERVING FAMILY COURTS FOR THE SHRINKING 26% WHO HAVE (MONEY) LAWYERS: Apart from the 74% 'pro se' litigants without lawyers, one should also consider the remaining 26% who have lawyers. One might in all honesty say that the expensive Maine family courts are being maintained for this affluent  minority and (more importantly) their lawyers. As an arena for a few lawyers (and the associated apparatus of consultants and GALs), the whole operation has become known by the public (countrywide), as the divorce industry. Should family courts and their whole expensive apparatus be maintained at public expense for a 26% minority of litigants and the juicy financial interests of  "the divorce bar"?

AS NEWS ABOUT THE 'PRO SE' DISASTER ESCAPES THE SYSTEM: In this age of the Internet, the public learns quickly about the unhappy state of affairs of 'pro se' litigants in family court. Paradoxically, in many cases, the public may well know more than members of the Judicial Branch who are tightly isolated from news of serious malfunctioning, cruelty. Bad management and unintended harm to children by omnipresent, "due process" concerns.  The public, in all likelihood, knows more about specific courts and specific judges and lawyers than does the Chief Justice. But... the bad stories, once out, cannot be controlled or suppressed. It causes severe damage to the credibility of the courts. The mechanisms of channeling public complaints about the distressing dysfunctions within the system are not user-friendly, are very expensive and in terms of corrective outcome ineffective. But the complaints and the "scandals" cannot be stopped by a protective system and an ineffective complaint protocol. They spread out like an Internet miasma from Ft Kent to Kittery, from Maine to California. They give the family courts and their entire operation a very black eye. It is very reminiscent of the recent scandals in another very closed system, the Catholic Church. Old methods and techniques of suppressing bad news, bad results and bad people don't work. The old system is badly broken and out of control, and the target symptom of this malaise can be seen most clearly in the 'pro se' situation.

HOW TO ADDRESS THE PROBLEM - FROM WITHIN OR FROM WITHOUT? It is our strong impression that without some thoughtfully programmed intervention, a growing 'pro se' situation in family courts will lead to a massive major breakdown of these courts in concert with widespread, public, bad feeling spiraling out of control. It will be impossible to control this tsunami of bad handling of 'pro se' cases. As social media become increasingly aware, the courts will face increasing disrespect and a lack of public support. It is truly a simple question of "fix it, or it will fix you!" In our opinion, the usual Judicial Branch problem solvers, the "stake holders" are the wrong group to fix the problem. They are the 26% who benefit financially from the current  'status quo' of family courts. There is also the serious hard data problem. Nobody knows the full extent of the 'pro se' problem. It is impossible to formulate a fully rational, systemic, corrective intervention without data. Clearly, the definition of systemic data needs (and subsequent data collection and analysis) is not a task within the capability of a "stake holder's" committee.

We'd recommend a legislative audit of the 'pro se' problem, executed by a respected government agency with the capability of doing this. OPEGA comes to mind. The aim is not to embarrass or cause pain to anyone. It is to obtain an objective analysis of the 'pro se' system and to suggest  comprehensive systemic corrections. With sponsorship from all three branches of government, it would be to the credit of all to face a terrible problem with courage and intelligence.

For more information about what we are doing to change the Family Court system find us on Facebook or email us at MeGALalert@gmail.com

Thursday, November 6, 2014

New Rules for Guardians ad litem versus or ... Judicial Discretion.

We are sure that the 78 page document spelling out a set of new Rules for Maine Guardians ad litem represents many hours of work on the part of some Judicial Branch Committee. However, to this reader, they are a very perplexing document. Exactly what are they supposed to be? Are they a job description? Are they some sort of regulations aimed at governing and bounding the work related actions of Guardians ad litem in divorce and custody (and protective) cases? Are they a set of voluntary guidelines to be followed if the GAL wishes? Are they well intentioned (but empty) ideals? What are they? It is far from clear.

Any set of Rules on paper may look fine, but their value and meaning  come from whether they are enforced or not- and how. For these new Rules there  appears to be no enforcement. There appears to be no consequences of any kind for not following them. There is no designated entity responsible for oversight to see if the Rules are being followed. There is nothing we can see, except for the reporting of complaints by the ‘pro se’ public. This complaint process itself is a confusing procedure guaranteed to fail. To this reader the message in the new rules seems to be: "it would be nice if Guardians ad litem learned these Rules and tried to follow them. But if they don't, not to worry. There are no consequences.

The complaint procedure speaks loud and clear to these issues. For family courts in which 74% of litigants are 'pro se', the complaint protocol spelled out in the new Rules is frankly unusable. It's complexity, its lack of instruction about "how to", its legalistic posture, its insistence on "innocent until proven guilty" even in cases needing only minor corrective action, its extreme concern about due process, makes it bullet proof against any public complaint. It also has no use as a management tool, a heads up from a member of the public that is simply aiming to improve GAL quality in cases of less serious malfunctioning. We guess that the court feels that GALs don’t need management? GALs all over Maine can heave a sigh of relief. Courts can breath easier. The complaint procedure won't be used, or, if it is used by an unaware 'pro se' litigant they won’t succeed in penetrating its airtight defenses.

For the time being, Guardians ad litem will be able to escape any consequences of  ‘pro se’ public complaints, but please don’t think that this will make the  GAL problems go away. They will just fester, suppurate, expand and grow larger.  Sooner or later the GAL malfunctioning problems will be uncontainable and a public scandal will burst through!

The "Catch 22" about the proposed new Rules (or the current ones) is that their courtroom enforcement appears to be totally a matter of judicial discretion. They can be discarded, amended or altered if a judge- quite independently of any rules - decides to order GAL actions not covered by the Rules for Maine GALs, or ... to ignore flagrant violations.  a piece of this problem- in our experience- is that many judges and many GALs lack specific, detailed knowledge of the GAL Rules and have only a "general idea" about Rules for GALs.  "Judicial discretion" seems to allow for creative use of the Rules in any which way.

To many of us, the recent Maine Supreme Court appeal, the Dalton vs Dalton case, appears to tell litigants that even a well-documented carefully reasoned exposition of what looks like a gross abuse of current GAL Rules by the GAL and documentation of a similar situation by the  judge  risks a "contempt of court" complaint.  It also risks "hand signals'  to the Overseers of the Bar to open a 'sua sponte' complaint against the lawyer who dared to document the problems.  The implications of this series of actions seem clear to us: any lawyer who robustly defends a client faced with dysfunctional judicial or GAL behavior is in extreme professional danger. DON'T DO IT!

The answer to correcting the dysfunctions in GALs and judges seems to be to bury the problem, until the weight of scandal and and corruption from within cannot be suppressed. A massive public cry of outrage and a demand  for action ensue.  The fairly recent scandals in the Catholic Church come to mind as an example. Suppression only works for a shorter and shorter period in the age of the Internet.

In our interest for reform, we are tempted to say to the Judicial Branch, "Do nothing.  Let your unenforced Rules and your unusable complaint procedures stand exactly as they are.  In the long run, they have within their carefully crafted attempts to control and suppress the truth (at a time when the Internet dictates that “you can run, but can’t hide”), the inevitable roots of a huge scandal, forced change and reform.  We're just not there yet!

There should be an easier way for all.

We shall overcome.  ... someday!

Please contact us at MeGALalert@gmail.com for more information.

Saturday, October 18, 2014

Lawyers, Divorce Industry Like Mike - Should You?

We try to stay clear of partisan politics. After all, children's welfare in divorce and custody shouldn't be a partisan issue. So we try to remain "non-partisan",

BUT ...

Quite frankly, from the perspective of our Family Court, and Guardian ad litem (GAL) reform concerns, we "Don't like Mike" - that is Mike Michaud, one of ( 3 ) candidates running for Governor of Maine. In fact we would say to our GAL and Family Court reform friends, "Vote for anyone else for Governor, but not Mike!"

It's nothing personal, Mike, its your "special interest" lawyer friends, supporters and the fundraisers who we don't like! It is Maine's divorce industry that is "hell bent for election," divorce bar lawyers raising money for "Mike" like it is going out of style and the other, so - called "impartial" divorce industry people silently cheering for "Mike". They are hoping that he wins and that his gratitude for their support will preserve the very lucrative 'status quo' in our creaky, old, dysfunctional, Family Courts.

ASK YOURSELF - WHY DOES THE DIVORCE INDUSTRY SO AVIDLY SUPPORT MIKE MICHAUD? Why are lawyers, law firms and the judicial branch supporting Mike? The financial investment they are making in Mike Michaud is an investment in keeping the family court as we know it. It is an investment in their retirements, their children's education and their way of life.

Take a look at some of Mikes supporters:

Michael Asen Esq (MittelAsen) - has helped fund raise for Mike on several occasions - 07/25/2014; 08/11/2014; 08/14/2014;

Michael Asen Esq has also been quoted by the Portland Press Herald as saying “My highest priority is making sure we don’t have another four years of this governor.” in an August 12, 2014 posting and referring to Gov. Paul LePage. Remember Gov. Paul LePage signed the Dutremble bill LD 872 "An Act To Improve the Quality of Guardian ad Litem Services for the Children and Families of Maine" which the Judicial Branch hated as did lawyers and Guardians ad litem. Michael Asen Esq is also the chair of fund raising for Maine lawyers who like "Mike".

Diane Dusini Esq (MittelAsen) - has helped raise money for Mike on at least one occasion - 08/11/2014. It should be noted that is also the President of the Maine Bar.

Stephanie Cotsirilos - former Wall Street Lawyer - has helped raise money for Mike Michaud - 08/11/2014.

Robert Gips Esq (DrummondWoodsun) has helped raise money for Mike Michaud - 08/11/2014.

Neil Jamieson Esq (Prescott Jamieson Nelson & Murphy) has helped to raise money for Mike Michaud - 07/21/2014; 08/11/2014.

Brett D. Baber Esq (Lanham Blackwell & Baber) has helped to raise money for Mike Michaud - 08/11/2014.

Janis B. Cohen Esq. has helped to raise money for Mike Michaud - 08/11/2014.

Elizabeth Scheffee Esq. (Givertz Scheffee & Lavoie, PA) has helped raised money for Mike Michaud - 08/11/2014.

Richard S. Berne Esq. (Law Office of Richard Berne) - is helping Mike Michaud with campaign contributions - 08/11/2014.

WHY DO THEY LIKE "MIKE"?  You can bet that it isn't just out of the goodness of their hearts, and it isn't because the divorce bar wants our kind of Family Court or Guardian ad litem reform.  They expect that "Mike's" "pay back" for their financial bucks will be strong support for the "divorce bar".  Keep lawyer privilege!  Keep our family courts as they are - a gold mine for lawyers and the Divorce Industry. Keep consumers out of this unregulated "industry".  "Mike" has a political  reputation for being an obedient,  good, ol boy. The divorce bar and their good friend, Senate President Justin Alfond ( 07/21/2014; 08/11/2014; 09/23/2014 ), are banking on a tight relationship with "Mike". Alfond is reported to have already told Senators in his caucus, enough already with GAL reform; the lawyers don't like it!

WE'D BET THAT MANY WITHIN THE JUDICIAL BRANCH ARE ALSO SILENTLY SUPPORTING  "MIKE" TOO (and not just their "prayers and good wishes"!). He is their kind of guy; supporting the interests of the "divorce industry" and will not supporting Family Court or GAL reform - just exactly as they are.

DO YOU SUPPORT THE "DIVORCE INDUSTRY"? A vote for "Mike" supports the divorce industry and perpetuates our victim-hood in Family Courts. Use you precious vote thoughtfully, carefully and in the best interest of our children. Your vote can make a difference. Please, friends, anyone but "Mike" for Governor of Maine, please!

We'd also say, check out where our candidates for the Maine Senate and House of Representatives stand on our reform issues. We're splitting our vote on these candidates depending on whether they support our family court and GAL reform positions. For us, it's not about Republican or Democrat; we call ourselves "Childocrats"!

JOIN THE CHILDOCRAT PARTY TOO!

MeGALert is a grassroots organization and like minded people who have a vested interest in the states Family Court process and reform. Please feel free to contact us at MeGALalert@gmail.com or find us on Facebook.

Monday, October 13, 2014

Judicial Branch - How Do Pro se Litigants Feel About Their Court Experience?

With the non-response response from the Judicial Branch we reach back out asking whether or not the Judicial Branch has interest in the Pro se problem in Maine.


From: J M Coll <jacol1@xxxxxxxxxx.net
Sent: Sep 30, 2014 11:46 AM
To: Mary Ann Lynch <mary.ann.lynch@xxxxx.xxxxx.gov
Cc: "ddusini@xxxxxxxxxx.com" <ddusini@xxxxxxxxxxx.com, "Villa98staterep@xxxxx.com" <Villa98staterep@xxxxx.com, "ddutrem1@xxxxx.com" <ddutrem1@xxxxx.com, Beth.Ashcroft@xxxxxxxxxxx.Xxxxx.gov, Governor@xxxxx.gov
Subject: Re: Our 'Pro Se' conversation on Wednesday

Mary Ann Lynch, Esq
Media Counsel
Maine Judicial Branch

Dear Mary Ann,

Thanks for your very prompt reply to my e-mail (on a Saturday morning, no less!). It is useful to get an official Judicial Branch position so quickly.

About the content of your reply, what can I say?

Your response to my e-mail is masterful. You “defend the J.B. fort valiantly”, but in all fairness, I wasn’t intending to attack the “fort” in any way - either in our very brief phone conversation, or in my subsequent e-mail to you. The email was intended as a simple clarification (expansion) of points in our conversation that you asked for. You suggested “a proposal”, if I recall. Despite disclaimers by me that my remarks are not a "proposal", you seem to have over determined them as such.  In my opinion, a position statement or an actual proposal about ‘pro se’ reform issues would need many inputs from many people - not just you or me.

The tone and focus of your reply, however, deflects attention from the serious ‘pro se’ epidemiological questions that I actually raised in the email, and that need answers to be used as “tools” for any serious problem solving. So ...  let me repeat the questions:

  • WHAT SHOULD THE GOALS FOR  ANY ‘PRO SE’ CORRECTIVE INTERVENTION BE? 
  • WHAT IS THE NATURE OF MAINE’S FAMILY COURT ‘PRO SE’ PROBLEM?  
  • DOES HAVING A LAWYER MAKE A DIFFERENCE IN OUTCOME OF DIVORCE AND CUSTODY?  
  • HOW DO ‘PRO SE’ LITIGANTS FEEL ABOUT THEIR COURT EXPERIENCE?  
  • HOW DO FAMILY COURT JUDGES FEEL ABOUT THEIR EXPERIENCE WITH ‘PRO SE’ LITIGANTS? 
  • HOW DOES THE DIVORCE BAR SEE THE ‘PRO SE’ PROBLEM?

I am reasonably certain that neither you nor anyone in the Maine Judicial Branch currently has answers to the above vital problem-solving questions. I am sure there are opinions and anecdotes, but no actual hard, working data.

I also suspect that these questions, and their use in data collection and subsequent use of such data in targeted problem-solving, may appear to be an unfamiliar problem-solving model to the Judiciary, its “stake holders” and to the usual problem solving ‘modus operandi’. They are a classic population-oriented, conceptual approach used since the 19th century in assessing and planning for issues in question for large, under served, at risk populations. With all due respect, I would contend that a “stake holders” committee is not a tool for solving an ever expanding epidemic of ‘pro se’ representation. Perhaps a legislative audit might be able to seek data and suggest remedies. Please, note in the previous sentence, the key word,” perhaps”! “Perhaps” you and your colleagues might wish to propose another approach to the same problems at hand.

As for your worry about “violation of the separation of powers”,  I hope I don’t appear to be someone, who - in a public conversation - would (God forbid!) ask the Judicial Branch Media Counsel to violate either the US or Maine Constitution! Legislative audits of Judiciary functions have been done by other states who revere the constitution every bit as much as we Mainers do. In Maine, we have the brilliant precedent of the 2006 legislatively approved audit by OPEGA of the Judiciary’s Guardians ad litem program. As I understand it, any of the 3 branches of government may propose a bill. You/your branch of government submitted a bill in 2013 dealing with GALs, using Senator Valentino as sponsor. It was hardly a unique event! As a firm believer in our constitutions - state and federal - I think we could study the epidemiology of ‘pro se’ and how to correct it without creating a constitutional crisis! “Where there's a will, there's a way”!

The "child's best interest" question that you raise, is another item that needs serious study and correction. In my opinion and that of many others, this one concept is the root of much that is wrong about family courts. It is the heart and soul of a lawyer-directed, inter-party competition, generating all of the most malignant contention in a divorce. It is the powerful driver of “billable hours” and thereby out-of-control lawyer’s bills! It serves “No one’s best interest”, least of all the child! If it requires legislation, what’s wrong with proposing it? What’s wrong, one suspects, is that if a corrective law were passed, the family court bar would metaphorically speaking  “go on food stamps”. That’s why the ‘status quo’ is so hard to change. But let it not stop us from trying!

Calling the divorce bar the “divorce industry” may offend you but is not far off the mark or disrespectful when one  does a detailed, “connect the dots” study (as we have done) of how members of this powerful group operate to preserve a very lucrative, privileged  ‘status quo’.

It would be helpful to get an expression of interest from you about a legislative audit of ‘pro se’. Any interest at the Judicial Branch? Or should we pursue this along other avenues?

Sincerely,

Jerry Collins

If you have had an issue with the court system we encourage you to contact us at MeGALalert@gmail.com. Or find us on Facebook.

Sunday, October 5, 2014

The Pro se Problem in Family Courts - The Judicial Branch Response

September 26 a follow up email was sent to Mary Ann Lynch with the Judicial Branch regarding a conversation which took place on September 24, 2014 regarding Pro se problems. We published that email on Sunday September 28, 2014 so the public could read about the very real concerns of Pro se representation in the Family Court system. That letter/posting may be found here. There were several points that were emphasized in that letter to the Judicial Branch:

1. What should the goals for any Pro se intervention be?
2. What is the nature of Maine's Pro se problem?
3. Does having a lawyer make a difference in outcome of divorce and custody?
4. How do Pro se litigants feel about their court experience?
5. How do Family Court judges feel about their experience with Pro se litigants?
6. How does the Divorce Bar see the Pro se problem?

The points were made as some possible questions that could be asked in trying to solve the Pro se problem. They were not intended as a proposal but as a means to start a conversation about planning.

In response to that email and as a follow up to the conversation - we have the following email from the Judicial Branch.

From: Mary Ann Lynch <mary.ann.lynch@xxxxxx.maine.gov>
Sent: Sep 27, 2014 7:25 AM
To: J & M Coll <jacol1@xxxxxxxx.net>
Cc: "ddusini@xxxxxxxxxx.com", "Villa98staterep@xxxxx.com", "ddutrem1@xxxxx.com"

Subject: Re: Our 'pro Se' conversation on Wednesday

Thank you for your follow up. Your letter raises issues you did not raise in our conversation on Wednesday. For instance "defining custody-50/50" fundamentally changes the current law, that is,   "the best interest of the child standard."  I suggest this type of question is a question of what the state law should be, and the resolution lies fundamentally with the Legislature. It would a violation of the separation of powers for the court to become involved in efforts to change amend the substantive law. If your goal is to change the substantive law on family issues, you should bring these issues before the Legislature.

You also did not mention in our conversation Wednesday an audit or study to be done specifically by OPEGA. As you may know, the Court currently is reviewing the report of the Family Division Task Force. These recommendations are before the Court after a year of study and 8 public hearings conducted all around the state.  This report contains proposals and recommended changes to the court procedures governing family law matters. The Task Force report focus is on improving public service by, among other things, eliminating court events that cause unnecessary delay, and improving procedures to promote prompt and more effective resolution of family disputes. The comment period just closed, and the Court is now considering the report and the comments. It is premature to undertake another study, before the court has acted on the recommendations now before it. More fundamentally, an audit by OPEGA raises substantial separation of powers issues.

Your discussion of the significant challenges presented by people proceeding without lawyers, most likely because they cannot afford lawyers, is a subject that the Court has worked mightily over the years to address, (with proposals to the Legislature to provide civil legal services to low income Mainers and to encourage lawyers to provide free legal services. Indeed, in the next few weeks lawyers across the state will be recognized for providing free legal services to their fellow Mainers.). But the problem is not just one experienced in family matters.  It is a problem that cuts across every civil docket in our courts. Any study of the issue needs to address all civil dockets, not just family matters.  We welcome a renewed interest in this problem.

Finally, I do not think the continuing disparaging and pejorative characterization "of the divorce industry," is particularly helpful or productive.  I suspect I will be accused of stifling discussion. That is not my intent. My intent is to accord all involved with respect.

Mary Ann Lynch


If you have had issues in Family Court as a Pro se litigant we ask that you contact us at MeGALert - MeGALalert@gmail.com

Sunday, September 28, 2014

The Pro se Problem in Family Courts

Mary Ann Lynch
Government and Media Counsel
Maine Judicial Branch

Dear Mary Ann,

It was a pleasure to talk with you by phone on Wednesday afternoon and to share a few thoughts about the very troubling 74% ‘pro se’ problem in Maine’s family courts. 74% is a powerful number that speaks to a socially unacceptable differential status of citizens/voters in the face of  justice. My purpose in calling you was  to be a “catalyst” for broad based problem-solving concerning the ‘pro se’ phenomenon. It seems to be growing numerically by leaps and bounds, despite valiant, well-documented efforts by your associates to contain it.

To me, as a former public health planner, there appears to be a lack of data about the nature of this problem that would be a vital necessity in designing a strategic intervention to reduce this unacceptable 74% number. The problem of ‘pro se’ numbers also appears to suffer (paradoxically) from well-intended attempts to try to solve the ‘pro’ se’ problem with inadequate problem definition. It puts “answers to the problem” before adequate “problem definition”, and thereby places the cart in front of the horse. Without wishing to disparage the ongoing work being attempted by those associated with the Maine Judicial Branch and the Maine Bar, I would suggest that there are some serious planning questions that need research and study before seeking answers.

Here, in brief, are a few of my thoughts, a recap and elaboration on our earlier phone discussion:

WHAT SHOULD THE GOALS FOR  ANY ‘PRO SE’ INTERVENTION BE? In any thoughtful, large scale, organized government plan, one needs clearly stated goals to aim for - and to keep the movement towards goals on target. I would suggest- tentatively- that the aim for the ‘pro se’ problem should be to reduce the incidence and prevalence of ‘pro se’ as a phenomenon in Maine family courts - “to move the “numbers needle” backwards”. To use a public health conceptualization, one might say ‘pro se’ is a growing epidemiological problem. What is the “epidemic” about, how is it spread over Maine’s “at risk” populations, who is vulnerable, what factors are causing it, what exacerbates its growth, what diminishes its growth and what “interventions” might well organized data suggest would be most effective? To that end, I suggest a sample of some very generic questions that an epidemiologist might ask before intervening in any epidemic.

WHAT IS THE NATURE OF MAINE’S FAMILY COURT ‘PRO SE’ PROBLEM? Beyond anecdote, who are the 74% of people who do ‘pro se’’ in Maine’s family courts? What sort of demographics do they represent? What ages, occupations, education levels, financial status, duration of marriage, number of children, geographic locations, previous marriages/relationships, health/mental health status?  What are the reasons that they are  doing ‘pro se’?  Financial reasons (examples)? Or other reasons?  All of these data would be useful tools in shaping rational problem-solving. Without such data, solving problems can only be based on anecdote, guess work, personal impressions, prejudice and bias. Bad information, as everyone knows, leads to bad answers!

DOES HAVING A LAWYER MAKE A DIFFERENCE IN OUTCOME OF DIVORCE AND CUSTODY? What is the statistical record for various types of outcomes for ‘pro se’ litigants? How do things go when one party has a lawyer and the other doesn’t? What factors favor what outcome when both parties have a lawyer? Are there statistics for law firms and lawyers showing records of wins and losses? How do ‘pro se’’, lawyers, and judges view the contest?

HOW DO ‘PRO SE’ LITIGANTS FEEL ABOUT THEIR COURT EXPERIENCE? Were they helped to do pre-court paperwork? Was the help that they received effective or was it confusing? Did they get help or coaching before going to court? From what kinds of helping sources? How do ‘pro se’ litigants feel about their courtroom experience?  Were they put at ease by the judge? Were they treated respectfully? Did they encounter judicial hostility or overt rejection? Were they listened to? How did they handle evidentiary challenges (“object, object, object!”) from opposing counsel? Were they included in all conferences and administrative issues? Did they feel that they received treatment in court equal to opposing counsel (if there was one)? Do they have ideas for simplifying the process for making it less time consuming, fairer and with happier resolution? How were they and their children impacted by the personal stress of the  ‘pro se’ experience and its  aftermath?

HOW DO FAMILY COURT JUDGES FEEL ABOUT THEIR EXPERIENCE WITH ‘PRO SE’ LITIGANTS? What kinds of problems do they experience? What impact does ‘pro se’ have on courtroom procedures and process? What are the biggest challenges in this situation for judges? What would they suggest to solve some of the problems associated with ‘pro se’? Do they have suggestions that might diminish the incidence of ‘pro se’ ?

HOW DOES THE DIVORCE BAR SEE THE ‘PRO SE’ PROBLEM? Does everyone in a divorce and custody situation need a lawyer? What type of cases may not need a lawyer?  What about pre-court legal “coaching”? What about paraprofessional lawyers? What about defining custody as 50-50 in all cases- except proven abuse? What other ideas? What about disincentives for lawyers? What about fee caps on all cases, or needing certification from a judge to bill beyond a certain $$ figure?

Please, do not take the preceding paragraphs as any sort of concrete proposal. The remarks above are offered only as possible examples of epidemiological data for use in a very classic, rational problem solving process. The questions are more to get a conversation about planning going- or to say, we don’t want to go there, because...

To my thinking, all three branches of government should be involved in any such a conversation leading to a plan for action. The core issue at the heart of the ‘pro se’ problem problem is about how we are to treat Maine families and children in the throes of divorce and custody. It is a question about the well being of a  sub-population of huge importance to the future of Maine. Interest in the topic goes way beyond the interest and practices of one branch of government and one profession. Ideally all three branches of government should work on the issue and should sponsor the supportive legislation to enable the work. As to the question of who might  best do such a study or variations thereof in the interest of the public, my vote would be for OPEGA; others might have other choices. My personal aim would be to eliminate the dominance of “special interests” of stake holders from the “divorce industry”, who have been the dominant players heretofore. They don’t represent the people.

I hope this gives a bit more flesh on the bare bones we discussed on Wednesday? It is still skeletal!  It is just a beginning of a much needed larger conversation.

Thanks for your time, your always valuable perspective and your in depth knowledge of the Judicial Branch - and Maine government.

Sincerely,

Jerry Collins

CC: MeGALert

If you have had a bad experience in the Family Court systems or with a Guardian ad litem. Please contact us at MeGALalert@gmail.com or find us on Facebook.

Tuesday, September 16, 2014

Public Comment: Report of the Family Division Task Force (FDTF), 2013

This is an interesting report in which the growing 74%pro se’ problem is acknowledged, but it seems to despair of a solution. Maybe in time. Maybe never. But - we’re thinking about it and working on it. It’s just that the thought and work hasn’t been successful in containing the growth of the problem, in designing an approach, much less, finding answers to the problem.

It is our impression that the  current status quo, financial incentives  to the Divorce Industry, are mammoth! Seriously analyzing the ‘pro se’ problem, a serious legislative audit or serious problem solving might, God forbid,  “kill the goose that laid the golden egg” for the Divorce Industry! After all, as quoted in the Family Division Task Force Report, 86% of family court cases have only ONE LAWYER (see page 20 - IX. Addressing the Increasing Unrepresented Population; A. Court Resources for Un-repsented Litigants: "The number of cases before family law magistrates in 2012 with one or fewer attorneys approached 86%")!

Imagine that one lawyer (in the 86 % of cases) opposing a ‘pro se’ party. As work, it is a ‘slam dunk’ as if ”like taking candy from a baby”. Very easy money. Two “champions” in the legal arena; one with a full armamentarium of legal weapons, knowledge of legal protocol and procedure - the other virtually naked and unarmed. Care to put a little money on the probability odds of the Pro se winning? We are not saying that ALL ‘pro se’ parties lose, but the “odds” are not in their favor in these situations. The playing field is tilted in favor of the represented party.

The ‘pro se’ party in cases we know of is totally frightened of the court, intimidated by the age old etiquette governing functioning in court.

Let’s consider a few generic issues: Unreliable help from the court in serving papers and in compiling other necessary paper work. No full understanding of the Rules of Evidence, Rules of procedure, no knowledge of how to frame the case for presentation, no courtroom experience in examining witnesses, no techniques for dealing with almost constant barrage of, “I oppose” actions from the attorney for the other side. These are just a few (of many) items to consider. Then there is the matter of self-esteem and feeling unbelievably stupid in the alien legal culture of a family court (and this is doubly a problem for foreign litigants). Add to the ‘pro se’ nightmare the minimization of the problem (with good $$$ reason) by the bar and judges who vary greatly concerning: impatience, anger, put-downs, scoldings and kindness, patience and the very limited “help” from the bench that can be offered without challenges of  impairing their  “judicial impartiality”, fairness, “due process”. It is about ‘pro se’ FEAR, EMOTIONAL PAIN AND FEELING VICTIMIZED  in our Maine Family Courts.

Sorry, but that’s our reality check for readers of this document, and, remember, you asked for “public” comments. You might say that this is a ‘pro se’ comment. We are not a lawyers and no lawyer shaped our expression of concerns.

The ‘pro se’ problem more than anything else demonstrates the extreme (and growing) breakdown of justice in Maine courts and the near shameless financial opportunity afforded any lawyer who opposes a ‘pro se’ litigant! It is no wonder the “divorce industry" isn’t rushing to correct this embarrassing problem!

WE SUGGEST: We would suggest that the Court, the Governor, the Legislature submit a bill in January 2015 for an OPEGA Audit of  ‘pro se’ in our Maine courts. Let OPEGA look at: the numbers of cases, the growth of the ‘pro se’ trends, the experiences and feelings of ‘pro se’ litigants, the outcomes of their cases, the public perception of attitudes of family court judges about ‘pro se’, judges recommendations for change.

We would also suggest that an audit consider the question of what value do family courts provide to those going through divorce and custody?  Are family courts adding anything to the welfare of our Maine children and families? Or are they taking away?

Idealistically, we would imagine that these questions and others should be of interest to all three branches of Maine Government and to those involved in divorce and custody actions.  It would answer the “problem vs no problem” debate with facts and evidence.



MeGALert is working to bring about change and reform to Guardians ad litem and the Family Court system. If you have been involved in the Family Court process that makes no sense we urge you to contact us at MeGALalert@gmail.com or find us on Facebook for support and help.