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.
Sunday, September 28, 2014
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.
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.
Monday, September 1, 2014
A Response - to the Proposed Repeal and Replacement of Maine Guardian ad litem Rules
Hon. Leigh Saufley
Chief Justice
Maine Supreme Court
Dear Chief Justice Sauflley,
I am responding to the request from the Judicial Branch for comments from the public on the proposed “new” Rules for Guardians ad litem. In my opinion, they are badly off the mark, if their aim is to help the majority of those public consumers, who might use them to understand how GAL’s function and how to make a complaint about a GAL’s defective performance. Perhaps unintentionally, they seem to distort the aims of the Maine legislature and the Governor who created the law in 2013. The Dutremble law was aimed at clarifying Guardian ad litem functioning with appropriate boundaries and protecting consumers of Guardian ad litem services from abuse by GAL practitioners. The proposed “new” Rules, as I read them, shift aim and focus of the 2013 Dutremble law, and, by proposed regulation seem designed to defend and protect Guardians ad litem, as members of “the legal guild”. Self-represented consumers of service are out of the picture altogether.
The proposed “new” Rules are lengthy (77 pages), often ambiguous and subject to many escape clauses. There are many statements in the Rules that are followed by exceptions to the rule. This oppositional duality throughout the Rules neutralizes and confuses the intent, meaning and strength of the initial rule, and it probably reflects the anxiety of “stake holders” on the working committee, who created the document. They may not want to be hampered or hemmed in by any Rules.
The section dealing with consumer complaints (see page 35 RULE 9. Guardian ad litem Review Board Complaint System) about Guardian ad litem services is written in complex legal language, full of references to other laws, unfamiliar to the general public. It prescribes a labyrinthine, multi layered procedure for making a complaint. Even relatively trivial, minor complaints must follow this protocol. As I read it and imagined using it myself in a ‘pro se’ effort, I felt shut out and stymied. The complaint procedure is written by lawyers for lawyers. It also proposes that all consumer complaints be managed by the lawyers'’ “guild”, the Overseers of the Bar, considered a formidable entity by most of the public. The complaint procedure is an airtight, legalistic, time-consuming, intimidating piece of work that virtually no untrained, unrepresented “consumer” will be able to use to complain about service. Preventing complaints from self-represented members of the public appears to be its purpose. Kill all public complaints with legalistic complexity. "Pro se" be damned, is the message I read!
The most troubling problem is represented by the authorship of the proposal “new” Rules for GALs. It appears to be the work of a “Stakeholder’s committee”, almost exclusively members of the powerful “divorce industry”. The authors show no consideration for how a ‘pro se’ (self represented person) is supposed to use the arcane, complaint “tool”. As you reported to me earlier this year, a startling 74% of family court users are ‘pro se’. It is being proposed by “stockholders”, who authored it, that this 74% majority be given a complex, “legal tool” that they will be unable to use in making a complaint about GAL service. The Rules, as a tool, by their complexity, would exclude the majority of public users from making a complaint on their own. Shouldn’t ‘pro se’ persons also be considered significant “stakeholders”? Their stakes are their children, their time and their life savings; not professional financial advantage. Their kids are priceless to them (and to all of us) and represent future, valuable human resources for Maine. Why are ‘pro se’ stakeholders denied a seat at the table that would reflect their proportional, numerical dominance in courts? It might be viewed as an exclusionary problem of vast proportions that needs correction in the interest of public fairness, and in the interests of reality. It is an awkward commentary on family courts in a democratic society.
We need to understand the present reality that Family courts at this time are no longer the exclusively purview of an elite, professional group of the legal profession when 74% of users are self-represented non-lawyers! It is time for everyone to awaken to these startling facts and address the major, unstoppable systems change that is going on right now!
It also should be noted that the public complaint protocol is the only “quality assurance” mechanism for the public governing the actions of Guardians ad litem. Without supervision, with just 18 hours of “education”, with quasi judicial immunity, with no meaningful “oversight”, a complaint from a consumer is the only way to request major or minor “corrective action” for a malfunctioning Guardian ad litem. If this procedure is so complex as to be unusable by non-lawyers, Guardians ad litem are essentially in a position of being granted secular infallibility by the Judicial Branch. One has to ask rhetorically: “Don’t GALs ever need some form of correction; are they always “perfect?” Can’t one find a more responsible way to correct and improve their function?
My opinion is that the Judicial Branch needs to go back to the drawing board and begin again in writing new Rules for GALs. It needs to include proportionally the biggest group of players in family courts, the 74% ‘pro se’ users, on any planning committee addressing “officers of the court”. It needs to approach the whole issue of GAL management in a much less defensive, overprotective manner. It needs to listen to and care about the systemic changes catalyzed by amazing numbers of ‘pro se’ representatives. The present document is “tone deaf” to ‘pro se’. Is this its aim, or is it impossible for the Judicial Branch to escape the political influence and power of the divorce bar?
We sincerely hope this document can be rewritten in tune with current realities, and with participation of those who are major users of the GAL system. Would it help the Judicial Branch to overcome the powerful, internal, self-serving, lobbying politics of the “divorce industry Bar”, if there were to be grass roots legislation empowering ‘pro se’ representatives on JB committees and throughout the family court system?
Your 74% ‘pro se’ statistic is a powerful number that cries for legal fairness and appropriate democratic empowerment!
Sincerely,
Jerome A Collins, MD
Kennebunkport, Maine
For further information on the Family Court and divorce industry crisis please email at MeGALalert@gmail.com or find us on Facebook.
For further reading:
2014-05-28 PROPOSAL FOR AN AUDIT OF ‘PRO SE’ REPRESENTATION IN MAINE FAMILY COURTS
2014-03-18 Maine Voices: We must work together to ensure justice truly is for all in Maine - a response
Chief Justice
Maine Supreme Court
Dear Chief Justice Sauflley,
I am responding to the request from the Judicial Branch for comments from the public on the proposed “new” Rules for Guardians ad litem. In my opinion, they are badly off the mark, if their aim is to help the majority of those public consumers, who might use them to understand how GAL’s function and how to make a complaint about a GAL’s defective performance. Perhaps unintentionally, they seem to distort the aims of the Maine legislature and the Governor who created the law in 2013. The Dutremble law was aimed at clarifying Guardian ad litem functioning with appropriate boundaries and protecting consumers of Guardian ad litem services from abuse by GAL practitioners. The proposed “new” Rules, as I read them, shift aim and focus of the 2013 Dutremble law, and, by proposed regulation seem designed to defend and protect Guardians ad litem, as members of “the legal guild”. Self-represented consumers of service are out of the picture altogether.
The proposed “new” Rules are lengthy (77 pages), often ambiguous and subject to many escape clauses. There are many statements in the Rules that are followed by exceptions to the rule. This oppositional duality throughout the Rules neutralizes and confuses the intent, meaning and strength of the initial rule, and it probably reflects the anxiety of “stake holders” on the working committee, who created the document. They may not want to be hampered or hemmed in by any Rules.
The section dealing with consumer complaints (see page 35 RULE 9. Guardian ad litem Review Board Complaint System) about Guardian ad litem services is written in complex legal language, full of references to other laws, unfamiliar to the general public. It prescribes a labyrinthine, multi layered procedure for making a complaint. Even relatively trivial, minor complaints must follow this protocol. As I read it and imagined using it myself in a ‘pro se’ effort, I felt shut out and stymied. The complaint procedure is written by lawyers for lawyers. It also proposes that all consumer complaints be managed by the lawyers'’ “guild”, the Overseers of the Bar, considered a formidable entity by most of the public. The complaint procedure is an airtight, legalistic, time-consuming, intimidating piece of work that virtually no untrained, unrepresented “consumer” will be able to use to complain about service. Preventing complaints from self-represented members of the public appears to be its purpose. Kill all public complaints with legalistic complexity. "Pro se" be damned, is the message I read!
The most troubling problem is represented by the authorship of the proposal “new” Rules for GALs. It appears to be the work of a “Stakeholder’s committee”, almost exclusively members of the powerful “divorce industry”. The authors show no consideration for how a ‘pro se’ (self represented person) is supposed to use the arcane, complaint “tool”. As you reported to me earlier this year, a startling 74% of family court users are ‘pro se’. It is being proposed by “stockholders”, who authored it, that this 74% majority be given a complex, “legal tool” that they will be unable to use in making a complaint about GAL service. The Rules, as a tool, by their complexity, would exclude the majority of public users from making a complaint on their own. Shouldn’t ‘pro se’ persons also be considered significant “stakeholders”? Their stakes are their children, their time and their life savings; not professional financial advantage. Their kids are priceless to them (and to all of us) and represent future, valuable human resources for Maine. Why are ‘pro se’ stakeholders denied a seat at the table that would reflect their proportional, numerical dominance in courts? It might be viewed as an exclusionary problem of vast proportions that needs correction in the interest of public fairness, and in the interests of reality. It is an awkward commentary on family courts in a democratic society.
We need to understand the present reality that Family courts at this time are no longer the exclusively purview of an elite, professional group of the legal profession when 74% of users are self-represented non-lawyers! It is time for everyone to awaken to these startling facts and address the major, unstoppable systems change that is going on right now!
It also should be noted that the public complaint protocol is the only “quality assurance” mechanism for the public governing the actions of Guardians ad litem. Without supervision, with just 18 hours of “education”, with quasi judicial immunity, with no meaningful “oversight”, a complaint from a consumer is the only way to request major or minor “corrective action” for a malfunctioning Guardian ad litem. If this procedure is so complex as to be unusable by non-lawyers, Guardians ad litem are essentially in a position of being granted secular infallibility by the Judicial Branch. One has to ask rhetorically: “Don’t GALs ever need some form of correction; are they always “perfect?” Can’t one find a more responsible way to correct and improve their function?
My opinion is that the Judicial Branch needs to go back to the drawing board and begin again in writing new Rules for GALs. It needs to include proportionally the biggest group of players in family courts, the 74% ‘pro se’ users, on any planning committee addressing “officers of the court”. It needs to approach the whole issue of GAL management in a much less defensive, overprotective manner. It needs to listen to and care about the systemic changes catalyzed by amazing numbers of ‘pro se’ representatives. The present document is “tone deaf” to ‘pro se’. Is this its aim, or is it impossible for the Judicial Branch to escape the political influence and power of the divorce bar?
We sincerely hope this document can be rewritten in tune with current realities, and with participation of those who are major users of the GAL system. Would it help the Judicial Branch to overcome the powerful, internal, self-serving, lobbying politics of the “divorce industry Bar”, if there were to be grass roots legislation empowering ‘pro se’ representatives on JB committees and throughout the family court system?
Your 74% ‘pro se’ statistic is a powerful number that cries for legal fairness and appropriate democratic empowerment!
Sincerely,
Jerome A Collins, MD
Kennebunkport, Maine
For further information on the Family Court and divorce industry crisis please email at MeGALalert@gmail.com or find us on Facebook.
For further reading:
2014-05-28 PROPOSAL FOR AN AUDIT OF ‘PRO SE’ REPRESENTATION IN MAINE FAMILY COURTS
2014-03-18 Maine Voices: We must work together to ensure justice truly is for all in Maine - a response
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