PROPOSAL FOR AN AUDIT OF ‘PRO SE’ REPRESENTATION IN MAINE FAMILY COURTS

Wikipedia defines an audit as: "A planned and documented activity performed by qualified personnel to determine by investigation, examination or evaluation of objective evidence  the adequacy and compliance with established procedures or applicable documents and the effectiveness of implementation.

A performance audit is increasingly used in government agencies as an examination of success in satisfying mission objectives.

Auditing is defined as a systematic and independent examination of data, statements, records and operations and performances of an enterprise for a stated purpose.

The purpose is then to give an opinion on the adequacy of controls and to improve the effectiveness of risk management, control and governance processes."

This is the working definition we use when we consider asking for an audit of ‘pro se’ issues in family courts.  Is the growth of ‘pro se’ representation impacting the “normal” functioning of family courts?  If so, how, and what are the qualitative implications?

'PRO SE' IN MAINE COURTS WIDELY ACKNOWLEDGED:  'Pro se' representation in Maine courts is a problem of amateur, ”do-it-yourself “ players trying to navigate the arcane complexities and traditions of family law in family courts.  It is an incredible challenge to amateurs that is repeatedly and despairingly acknowledged by self representing users of family courts and by sympathetic members of the Judiciary.  It is also acknowledged, as a problem by the Maine Bar, which - in spite of its good faith efforts to find answers to the 'pro se' problem - sees the problem escape those efforts and grow numerically ever larger.

'PRO SE' NUMBERS:  Most people don't know the actual size, the statistics, of the 'pro se' problem in Maine Family Courts and are shocked when the hear the statistics.  74% is the number recently reported (personal communication) by Chief Justice Leigh Saufley.  Justice Andrew Mead in an "op ed" essay in the Portland Press Herald reported 3/4 'pro se' representation in family courts (or 75%).  But we won't quibble over 1%!!   It is a big problem.  ‘Pro se” users are the majority “parties” in family courts- a big majority!

And ... this 74% percentage isn't static.  It keeps on growing despite efforts by the Bar and the Judicial Branch to reduce the numbers - to reduce its prevalence.  From the absence of  successful “solutions” and the failure to reduce the numbers, one has to infer that there is a problem in diagnosing the "disease" - and its dynamics -  or that the corrective "medicine" isn't strong enough or isn't working fast enough.  Because the numbers keep growing there is an need for an opinion outside of the Judicial Branch about the nature and scope of the problems and for proposals to correct them.  We feel that OPEGA qualifies, given their experience in conducting audits and given their enviable reputation for fairness and objectivity. 

NATIONAL 'PRO SE' PERSPECTIVE: The 'pro se' problem is by no means just a Maine problem.  The National Center for State Courts (NCSC) reports that growing ‘pro se’ representation is a growing problem for every state.  Connecticut and New York are said to have 82 and 83% 'pro se', respectively.  Some of the problem seems related to national "macro economics" and the economic problems of the last several years.  Some of it is related to the escalating costs of private  legal services, which quickly become a financial deterrent to middle class family court users. But we have to ask, regardless of abstract economic speculation, do we really want to end up competing with Connecticut and New York for bigger ‘pro se’ numbers? What are we waiting for? 

Like it or not, the 74%  'pro se'  problem proclaims a 'de facto', two tier user (and social class) system in our courts - the wealthy 25% have lawyers, and the middle class 75% “do-it-yourself”.  The questions for the public are: (a) what are the root causes of  this social discrimination, can causes be addressed and (b) should we just let the problem continue (and grow) uncorrected?

THE HUMAN PROBLEMS behind the 'pro se' number: are public users, judges, lawyers and others. Any audit needs to consider who uses family courts 'pro se' and otherwise. What are the demographics? What are other differentiating features? How do 'pro se' users feel about their legal adequacy in court? What "tools" do they use in representing themselves? What is their experience of judges?  What outcomes differentiate those with lawyers form those with none. Is there a differential with regard to Guardian ad litem experiences?

Likewise there is a need to evaluate how judges perceive the 'pro se' issue.  What are the professional challenges for judges dealing with 'pro se'?  What solutions do they improvise to address the problems?  What suggestions or recommendations do they have for improvement?  What "tools" does the Judicial Branch already provide those doing self representation?  How useful/adequate are these?

We have heard many lawyers claim that they see no problem with the current operation of the family court system.  On a personal/professional level this is certainly understandable, because in cases where they oppose a 'pro se' "lawyer", they have an extreme professional advantage in their own favor. It must be like "taking candy from a baby"! There may be other advantages too in this sort of uneven "legal combat", but an audit would look at all of the dynamics and, one hopes, challenge complacency.

THE DEMOCRACY "PROBLEM":  Clearly a two class court system in which those with money for a lawyers are favored and those without a lawyer to represent them are disfavored poses a huge challenge to a democratic society. It is an enormous embarrassment to all of us to ignore the inequality. It is an important issue that needs thoughtful evaluation to diagnose the nature of the problem and to recommend intelligent proposals for correction that will be democratic and constitutional.

AN OPEGA PERFORMANCE AUDIT, we feel strongly,  is the way to go for Maine’s children and families, who are forced to represent themselves in family courts!  We ask the Legislature, the Judicial Branch and the Governor, along with the “grassroots” to support legislation to begin problem analysis and problem solving of the ‘pro se’ issue.

We are trying to bring about reform to the Guardian ad litem role and Family Court system. We encourage you to become involved and to contact us at MeGALalert@gmail.com or find us on Facebook.

Hate Mail - a Tactic that Violates our Beliefs and Ethics

We've all experienced it.  We recognize it by the tension in our stomach as we read it, by its extremist perspective, by the writer's views on whatever the "hate" topic - close to ours in some ways, yet somehow a million miles away from us in style, approach, ethics and feeling.

The question for us is always how - or whether - to respond to this raw, affect laden expression?  Do we try to keep an open mind about the writer and hope that we may perhaps find common ground that will eliminate the gut-wrenching "hate", or do we spot entrenched danger signals that can never, never be corrected - and "bail out" asap?  Since we can't read the future, it is a judgment call based on the data at hand at the start of the process.  And judgment calls-in either direction - as we know, can be wrong!

But "hate mail" is also a healthy test of our personal, ethical, humane, stylistic "boundaries".  Where do we stand?  How far will we go?  What approaches and tactics proposed by the "hate mail" for "problem-solving" are unacceptable to us?  Which tactics violate our beliefs and ethics?  Solving a problem at any cost, with "no holds barred", with no goals other than stirring up raw emotion and more "hate", massive "hate" are not who we are, not what we are about.

We are activist reformers, yes, but we believe in the personal, human dignity of our opposition.  We assume that they have a right to their beliefs, as we do.  We oppose all tactics of human demonization by anyone involved in "conversations about change" or reform.  If we can't persuade by "telling the truth" (Vaclav Havel) in a respectful, forceful, courageous, humane way, we pollute ourselves.  We become something we don't respect or want to be.  We lose our "moral compass".  And thereby we lose our way and fail  miserably on a personal level.

One of our teachers many years ago cautioned us about the dangers of a successful movement.  "Prepare for predators", he said.  Prepare for those - who are less successful in their own efforts - trying to pirate part of our barque, without understanding the "total package", without recognizing that our "ship" only floats on decency, respect of others humanity, honesty, courage, ethics - guided by (we hope) a strong moral compass.

"Hate", distortion of facts and public humiliation of anyone  are not on our list and never will be!

Please contact MeGAL at MeGALalert@gmail.com if you have had issues with Family Courts and Guardians ad litem or find us on Facebook.

An appeal to Maine's Supreme Court: Dalton Vs. Dalton CUM-13-521 - the Final Dance

The final installment in the appeal to Maine's Supreme Court of Dalton V Dalton - Maloney's response to Bixby.

III) BETH MALONEY’S REPLY TO SUSAN BIXBY

By our reading, the Maloney reply to Bixby’s response is a lot easier for a non-lawyer to follow and to understand. It is a coherent narrative. It tells a very sad story clearly. It is about how a mother has been strategically demonized by her opponents, and how the impact of this demonization has influenced the judge's custody decision. It presents Ms Dalton as the victim of a “railroad job” with several of the court players appearing far from “impartial”. The brief offers examples of flaws in the information gathering process and of the Guardian ad litem (GAL) in this case operating outside of the boundaries of “Rules for GALs”.  Maloney is knocking on the door of the court for equal parent time, which is a position that we, as family court reformers, endorse for every child custody case in a divorce, unless there is proven child abuse. They key word is “proven”.  There is no proof that we can see in this family court case - for good reason.  It would (or should) remove the case to criminal court.

We ask, “So why ever is a family court dealing with alleged child abuse?  Isn’t it outside of their mandate, their skills?” Child abuse is a crime. A claim of child abuse should have a criminal investigation and be tried in a criminal court with a jury, if there is evidence. “Strategic” claims of abuse should be tossed out of family courts; particularly, if the criminal investigation of such claims has already yielded a big, fat  “zero”! Without hard facts soft allegations of abuse constitute a cruel “witch hunt”. We also feel that various forms of court prescribed therapy and parental training, which are mostly without scientific grounding, ought to be tossed out too, as more beneficial to the service provider’s pocketbook that to the recipient of service’s psyche.

In Ms Dalton’s case, it is unclear whether anyone has actually diagnosed a problem for which - despite no diagnosis -  she is nonetheless being treated?  Nor does there seem to be a clear aim or endpoint which would say she has passed the test and can now be a “card-carrying” parent,  So the court and the opposing lawyer  keep the treatment for unspecified problems just rolling along - perhaps forever?  Treatment for the “bad” parent, parent counseling for the “bad” parent, supervised visits for the “bad” parent are part of the family court and family lawyer’s strategic games  that keep the process going on forever with no goals.  All done in the name of “the child’s best interest”, until the money runs out!  It is a cruel travesty that should stop.

Even Maloney in her response to Bixby bows to this hideous “game” when she says that Ms Dalton is “showing progress” with these junk therapy efforts.  “Progress” in what, compared to what, to what end?  As non-lawyers, who don’t have to play the courtroom game, we’d prefer to hit head-on  this bogus therapy for an unspecified  condition, with no visible end point.  Ms Dalton doesn’t need any of it to rein in her imaginary alleged intense child abuse impulses.  It is a disconnected prescription for therapy for no named condition “discovered” as an opportunity by an opposing  divorce lawyer.  And it is a stereotyped strategy used all over America.  A lawyer spots a lucrative opportunity to get a client on a treadmill from which there is no exit.  No end until the money runs out!

Reply brief of Appellant can be found here: Dalton v Dalton Final

If you have had problems in Family Court with a judge or Guardian ad litem please contact us at MeGALalert@gmail.com of find us on Facebook.

The first two briefs may be found here:
2014-02-22 Child Custody - An appeal to Maine's Supreme Court: Dalton Vs. Dalton CUM-13-521

2014-05-04 An appeal to Maine's Supreme Court: Dalton Vs. Dalton CUM-13-521 - the Lawyers Debate

An appeal to Maine's Supreme Court: Dalton Vs. Dalton CUM-13-521 - the Lawyers Debate

We welcome this chance to publish the final two steps in an appeal to Maine's Supreme Court, the Dalton vs Dalton case. Step II, which follows here, is attorney Susan Bixby's reply to Beth Maloney's original brief.  Maloney’s brief, published here earlier, got the appeal process started. Step III is Maloney’s rebuttal of Bixby.

Along with our presentation here of the final two steps, we offer our layman’s observations and reactions to the 'arcana' of legal strategy used by these lawyers for a family court appeal.  Our non-expert, "grass roots" response to both pieces of writing is philosophical and common sense - not legal.  The philosophical flaws we see in both documents are about the basic human assumptions, the investigative process and the judicial decisions behind the  classic lawyerly strategies for how the "contentious divorce” (and its appeal) gets played.  For what it's worth, here is our personal take on the final two lawyerly exchanges in the Dalton v Dalton debate:

II.) SUSAN BIXBY'S APPROACH:

As we read it, Ms Bixby uses an all too common divorce strategy: to communicate by strong  inference that suburban housewife and mother of three children, Sarah Dalton, is a dangerous woman around children.  You may note that Bixby carefully comes close to the line of actually charging child abuse, but doesn't ever  cross it.  In her well designed response to the Maloney brief, Bixby strongly hints that, if Ms Dalton were left alone with her kids, God alone knows what bad - but unspecified - things might happen.  In tone it is all very subjunctive, speculative and scary.  She never crosses the line dividing hints of possible abuse from actual charges of abuse - for good reason.  It would end the family court hearings and - after investigation, might place the charge in criminal court, where a trial by jury would probably clear Ms Dalton of the "hints" of abuse issue.

Clearly, Ms Bixby's client , Mr. Dalton, is indirectly represented as wanting an “exclusive” - all of his children all of the time. No sharing. No concern about the children's need for a maternal parent. It is a hardball, legalistic "abuse game" right out of the movie, "Divorce Corp". Take no prisoners! The Bixby presentation raises the question in this reader's mind: "What exactly makes Ms Dalton 'unfit' as a mother , and after all of these years as a mother is she suddenly ‘nouveau’ abusive?"  And, another puzzle, why is she presented as, so far, being  immune to corrective therapy?  It is so stereotyped a legal strategy of demonizing a custody opponent as almost to be out of the tabloids!

Bixby, by her numerous claims that Maloney has ignored the "Rules of Evidence" more than implies that her legal opponent is dim and ignorant of how to use the "Rules of Evidence".  Tut tut!  As non-lawyers, what can we say?  The always meticulous, compulsive, detail-oriented Maloney, it is implied, needs to go back to the "Rules" book and bone up!  There is also an unmistakable hint from Bixby that Maloney needs lessons in legal etiquette and propriety. "Aggressive lawyering" is the operant phrase but there is more innuendo of absent professional refinement.

But read Part II, the Bixby reply and see what you think: Dalton Vs. Dalton CUM-13-521 Bixby's response.

To read the initial brief that was filed in February 2014 please follow this link: An appeal to Maine's Supreme Court: Dalton Vs. Dalton CUM-13-521.

If you have had problems in Family Court with a judge or Guardian ad litem please contact us at MeGALalert@gmail.com of find us on Facebook.