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


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.......

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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.