Wednesday, April 6, 2016

The New World of GALs for Lawyers and Courts (and GALs)

Several years ago Chief Justice Saufley told us that there was a problem with consumers of judicial services receiving access to justice (A2J). At that time the statistic she used was that 74% of cases in Maine Family Courts were Pro se. In 2015 that represented 17,065 cases.

We agree that there is a huge problem.

On Friday April 29 the Maine and York County Bar are presenting a all day course called "The New World of GALs for Lawyers and Courts (and GALs)" which covers a variety of topics and explores the new "paradigm" for lawyer, magistrates and Guardians ad litem. What is left off are those who represent themselves - the Pro se litigant or maybe the Pro se lawyer. Of course anyone is invited and if you are lucky enough not to be a member of the bar the cost to you is a cool $245.00 - if you have it.

Is this the way to help the 17,000+ litigants who happen to represent themselves. We don't think so and we ask the President of the Maine Bar how this course helps the self represented?

Stephen Nelson, Esq
President Maine Bar

Dear Mr Nelson,

Re "New World go GALs"

Most "consumers"  who have been through family court for divorce and custody - both 'pro se' and with a lawyer, and who have had the experience of a GAL, are deeply interested in educational events for lawyers and others who work with GALs. We are especially on the alert when we see the title of a CLE, "The New World of GALs". Everyone wants to know the nature of lawyer education about GALs - and what is "new". Will it be significant learning?

Please, let me, as a non-lawyer, former educator share a few thoughts (and some perspective) on this upcoming educational offering for the Bar. As a former educator with curriculum development experience, I look at educational offerings from a structural viewpoint, and ask the following questions: for whom is the offering designed, how will it help the intended student, what is one seeking to accomplish/teach (educational goals), who set these goals, how will you know goals were achieved, will there be learning measurement or just opinion, will this teaching last beyond the presentation, say, in 6 months, 1 year? All of these classic, structural questions are aimed at determining the quality and value of an educational program. I offer the following thoughts about the April 29th program, because of their potential unintended consequences on both attendees and indirectly, later on those who are "consumers" of court services.

I hope that my comments might help the York Bar (and others) to consider a few "blind spots" in program design, and, as the poet Robert Burns put it: "to see counsels as others see us".

1.) The April 29th CLE appears to be an educational offering for those members of the "divorce bar", who will represent the 25% of litigants in family courts, who can afford a lawyer. As far as one can determine, it hopes to provide those lawyers who attend with additional "tools" for the paying clients' benefit.  Perhaps unintentionally, it will further the already significant gap in legal information between the 75%  'pro se' litigants and the 25% represented by the divorce bar. In this regard, the admission price for 'pro se' litigants to attend as auditors, $245.00, is a guaranteed deterrent for most 'pro se' litigants. The price (for "consumers") alone sends, a perhaps unintentional exclusionary message. One has to ask, Don't 'pro se' litigants, the overwhelming majority, need the "new" information about GALs too? It raises some very interesting "ACCESS TO JUSTICE" issues for everyone. As they say, knowledge is to be power.

While your CLE, in our opinion, might not be a very effective teaching model for anyone, the public deserves a chance to look and evaluate, on their own, the quality and value of lawyer CLEs. Their observation may well be the only evaluation of this educational product. Further, they will directly experience the impact of the fall-out from such education in court - for better or worse.

2.) Given the recent, very extensive public contention about GALs in Maine, we are also struck by the total absence of 'pro se' speakers or "consumers" of GAL service, presenting their perspective, as individuals or on panels. There are two speakers who present a 1 hour sociological, "cultural competency", perspective. They include 6 sub-topics in 1 hour, between the 2 speakers, covering culture, poverty, family structure, etc. In a 1 hour presentation by 2 people, with 6 sub-topics to cover. Evenly dividing the time between the two speakers,  this might allow, say, 5 minutes per sub-topic, per speaker. So much for "sociology". Can this sort of presentation - even with highly skilled teachers - be anything other than superficial? It risks taking an important topic and reducing it to "sound bites", "pop sociology", or meaningless tit bits of information of limited value as "working tools" for a member of the "divorce bar". It also puts some of your 75% 'pro se' opponents in the position of being exotic "sociological specimens" that require a series of 5 minute sociological  explanations to make them understandable to legal audiences.

Pity the poor psychologist who also speaks for an hour and is advertised as covering 8 sub-topics. By our calculation this is 7.5 minutes per sub-topic. Psychological enlightenment in 7.5 minutes? The same problem applies here: good topics; not enough time to teach anything meaningful or useful. Both sociology and psychology are subjects about which students spend years acquiring professional knowledge, skill and experience. 7.5 minutes?

In all fairness, might it not be more valuable to the lawyer attendees to get them thinking about their own cultural traits that may impair their functioning with non-lawyer litigants, say, the sociology of lawyers, their cultural blind spots, their unconscious biases, their family structure, their beliefs in what is normal, their cultural values? But, this too would require more than 7.5 minutes. A micro brief sociological presentation about anyone, lawyer or clients of the most diverse sorts, will dehumanize, marginalize or stereotype them. Brief sociology or brief psychology presentations are not a substitute for authentic presentations by real people who have gone into the system bare - with no legal tools?

3.) One of the topics mentioned in the program is: "how to lose a case". In divorce and custody cases which we hear about, there is much emphasis on winning or losing in legal "combat". A "zero sum game" is a tragedy for any child caught in the middle of a gladiatorial courtroom combat - with or without GALs. We have asked, is a traditional adversarial model a benefit to any child in any divorce?  Does GAL's role enhance or diminish the "win/lose" model? What is the responsibility of the lawyers, GAL's and judges in reducing prolonged, inter-party conflict, discouraging contention between parties in divorce and custody and reducing time (and cost)? Where is the CLE instruction in dealing with an opponent who is not a lawyer in a fair, ethical, non-gladiatorial way?  Lawyers  have a big role in promoting or discouraging contention, and many would say that the financial incentives of billable hours promote "wars and battles".

4.) The (for many) "hot button" topic of "judicial discretion" in adhering to the "new GAL rules" is another very important problem that appears to be ignored. The "new world of GALs" may be fine and good, but will the "old world of judicial discretion" render the "new world old"? It has been observed by 'pro se' litigants - not infrequently - that judges often have only a general idea about rules for GALs and don't adhere to them. Will judges follow the "new" rules"? What if they don't? Will anyone care - or notice?

There are some very "spiffy" topics covered in this CLE, for which specialist professionals spend years in study. A one hour session on psychology or sociology with numerous sub-topics at about 7 minutes per subject, is woefully inadequate and potentially harmful. One fears that the psychology and sociology in an hour's presentation of "sound bites" will re-enforce already rampant junk science stereotypes and further lawyer and GAL biases.How will those who designed the course know what lessons (good or bad) have ben learned, or … whether they are unintentionally teaching stereotyping and bias??  Doesn't the education committee need to move this kind of session beyond mere ritual of required attendance at CLEs?

In closing, poet Alexander Pope's words, come to mind:

A little learning is a dangerous thing.
Drink deep or taste not the Pierian spring
There shallow draughts intoxicate the brain
And drinking deeply softens us again.

Yours for deeper educational draughts on the "new" world of GALs.

Jerome A Collins

MeGAL is working to correct the problems in Family Court and the Guardian ad litem system. If you have had issues we would encourage you to become involved to bring about change. The may be accomplished by contacting your state representative and by contacting us at or finding us on Facebook.

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