Part 3 - THE DICE ARE LOADED: A CONSUMER'S PERSPECTIVE

20.  INADEQUATE SERVING INSTRUCTIONS/EXPLANATIONS FOR 'PRO SE' "USERS": Although the 'pro se' litigants are a 75% majority (17,000 people in 2015, they are not accommodated by the courts even on small matters like serving court papers. No one explains that a registered letter receipt requested, doesn't have to be signed - even when served to a court official. No one explains that a sheriff-served paper, although expensive, is the only sure way. There is also a lack of clarity about court fees. As of this writing, it is not clear whether expensive court fees have to be re-paid for a new attempt after failed service. There is also the matter of "grumpy" clerical officials, who are grudging in providing information to majority 'pro se' users, while more obliging to "frequent flyer" local lawyers, who know the ropes. It is a small but significant, symbolic example of a failure by the court system at even its lowest level to recognize the "new normal" of majority 'pro se' litigants.

For a list of issues as we see them with our Family Courts read [PART1] and [PART2]. Family Courts and the vendors (GALs and court experts) who work within do so in a broken system. To change this system we encourage you to contact your representatives and let them know of the troubles you have experienced. Let them know that there are over 17,000 others.

Part 1 - THE DICE ARE LOADED: A CONSUMER'S PERSPECTIVE

As members of the "divorce bar" are fond of saying when divorce and custody judgements are questioned by a "consumer", "Somebody has to win, and somebody has to lose." To which we would ask: "…but what if the dice are loaded?" Winning and losing a parent are very sad decisions to give a child, who needs both parents. Should divorce be played by the divorce bar as a "zero sum" courtroom gamble over children? In the "win or lose" dynamic are children well served, or is it a "championship game" for the divorce bar? Who gets the gold medal? Certainly not the children. Isn't the adversarial model inappropriate in a divorce where children are involved? What is "justice" for such children? What is justice for the parent who loses? Why does the bar never push for reform of this barbaric "win or lose" mode?

Herewith are a few topic headings viewed from a consumer's perspective that are about "broken family court structures" that load the dice against many who use family courts and in favor of those with expertise in "gaming" these courts. Individual divorce and custody cases get ground up for hamburger meat in this game. Our topic list aims to describe the broken family court "grinder". These structural topics (when filled in with cases) ought to explain the need for a legislative audit of family courts or "investigative reporting" by a courageous newspaper. Or both.

1. OUT OF DATE MANAGEMENT: There is no higher level management of the judges, GALs and lawyers who populate family courts, and there no systemic data for a manager to work with for "big picture" oversight of the family court  system. This information lack hides patterns of hard, recurrent data about courts/judges/lawyer/GALs who may present consistent problems to the public. It hides judge/lawyer relationships, and judge/lawyer patterns of outcomes that might suggest coziness, it hides averages for court time for divorce trials (billable hours) and masks  the practices of lawyers who might be considered "frequent flyers" or "contention profiteers".   

2. BROKEN: "Corrective Mechanisms" that don't correct. Protocols for complaints about GALs, lawyer, Judges and appeals challenge the 'pro se' complainant in the extreme.  These take hours to put together, they then go through screening procedures that "screen out" complaints said to be unworthy. But even after screening out "bad" complaints, few actual complaints yield "corrective action" of any kind. How to interpret this? A sign of perfection, or protection? Look at the micro (or non-existent)  numbers of corrective actions in each of these categories. There is also the awkward question: how does one correct a bad Supreme Court decision - or do they never make a bad decision? Guess not.  Get over it!

3. NO REAL MANAGERIAL OVERSIGHT: Oversight, such as it may be, relies entirely on non-lawyer "consumers'" cobbling together a quasi legal complaint and defending it; not professional surveillance of professionals by management. The only way those higher in the Judicial Branch know there is a problem is as a result of a successful complaint from the public. Almost no complaints filter through the various tight screens. Higher ups remain in blissful ignorance of malfunctioning. There is no modern management of defective functioning in this system. Bad practices can fly under the radar and continue to malpractice.   

4. OPACITY OF REGULATORY DEVELOPMENT: Regulations for the family court judicial system are developed "in the closet" of the Judicial Center behind closed doors with no public observation. Unlike legislative deliberative sessions and hearings,there is no transparency of the deliberative process- or of who deliberates (same old, same old committee members?). Why this "opacity"? Secrecy in deliberations will tend to promote 'status quo' conservatism, legal protectionism, rampant legal self-interest and nothing really changes. This is not in the public interest and hard to justify. Regulation development is treated like "top secret" activities.

5. DEFECTIVE VETTING OF JUDGES FOR APPOINTMENT/RE-APPOINTMENT: Every step in this process is opaque and leaves out the public, until near the ceremonial end. It is largely a popularity contest for political elements of the bar. Is a judge liked by small segments of the bar, who work at this task? Why is there no standard, formal testing and grading of a judge's knowledge of the law, knowledge of new laws, new regulations? The legislative reviews are an act of faith, rubber-stamping the bar committee's, (as is the Governor's). They simply sign-off on the bar's "judge- friendly vetting" decisions. The public would be better served if judges were obliged to take a certifying/re-certifying exam that tested their knowledge of the law and regulation, with results made public.  Otherwise, how do we know, how does the legislature know, how does the governor know? In plain English, they don't.

6. ABSENT PROFESSIONAL DISTANCE: The judiciary promotes friendly bench/bar relations,  But how friendly? Cozy lawyer/judge relationships are suggested by certain lawyers always scoring a win with certain judges in family courts. There are reports we hear of local bar members ganging up on a judge who dares to disfavor the more political members. Re-appointment is not in their "interest". There is a need for open statistical data That would show judges, lawyers, outcomes. A legislative audit would sample a few courts where anecdotal data suggest high frequency Judge/lawyer results.

7. INTIMIDATION: Intimidation of lawyers who fight too hard for their clients. A common client observation: "My lawyer is a lion in the office, but acts like a mouse in front of the Judge." Why? Lawyers who advocate too strongly for a client learn to beware of 'sua sponte' complaints of unprofessional behavior or claims of "contempt" (shown by brusqueness?). Maybe you don't fit in family law?  What about a career in bill collecting? What is contempt of court and how does it play-out when a judge is contemptible by any normal standards?   

8. ABUSE OF ABUSE ALLEGATIONS: The child abuse conundrum Lawyers' claims of abuse vs Children's Protective. Claims of child/spousal/other abuse are extremely common in divorce and custody cases, and such claims are used for "winning" decisions and money and generating billable hours. Referrals of abuse claims to Children's Protective are not favored.  They stop billable hours for the divorce bar. Follow the money. The billable hours stop when a referral is made to CP. The preference is to use "court consultants", who are "frequent flyers" with certain judges and certain lawyers.

9. ABSENT ACCESS TO JUSTICE: The 75% access to Justice failure is the core situation that is transforming Family Courts into a broken, unpredictable system in which self-representing people struggle for justice. This is approximately 17,062 people for 2015, using Judicial Branch numbers to calculate 75% of the total. It is the population of 'pro se' users, a "time bomb" that will in the end destroy family courts - with or without reform. 'Pro se' numerical dominance is "the new normal" for family courts, which are struggling to maintain "an old normal" in which lawyers were the interface for the pubic with justice. No more. Judges are at a loss about managing the 75% majority of self-representing litigants. Self-representing parties are just plain lost. It cries for answers. The absence of the old structure leads judges to perform in more high-handed, totalitarian, arbitrary ways and leads to huge problems of badly crafted outcomes. It cries for in-depth study.

MeGAL is working to bring about Guardian ad litem and Family Court reform. There are additional points to "The Dice Are Loaded" which may be found [HERE]. We encourage you to become involved and can do so by contacting us at MeGALalert@gmail.com as well as your state representative. 

Part 2 - THE DICE ARE LOADED: A CONSUMER'S PERSPECTIVE

Part two of the Dice are Loaded

10. WHY NO MANDATORY SERVICE FOR A LAW LICENSE: A tax supported state law school trains students for private practice of law. Students select cases in the law clinic on the basis of what interests them, not randomly or first come, first served. The clinic's clients must be at the dire poverty level (food stamps or equivalent) so as to avoid taking even a minimally paying client from the private divorce bar. Clinic clients, however, are getting quasi amateur services. For all of the public tax support (physical plant, teachers and support staff salaries) there is no public pay back in terms of mandatory public service. Why no obligatory service for students, or for members of the bar? Training for the new normal 'pro se' court lacks a syllabus because the reality of new normal hasn't been recognized. The same might be said of the judge's role training for a 'pro se' court. What is it? May we see a book of instructions, if there is one?

11. JUDICIAL DISCRETION ON STEROIDS: Judicial Discretion in family courts seems to be a creative act, badly in need of clear, consistent boundaries. We are told by legislators, "We make the law, the judiciary re-writes the law 'de facto' using judicial discretion in decisions". Individual judges use rampant discretion in court which the higher ups are unaware of, unless there is a successful formal public complaint. Oversight only exists as the result of a complaint pursued by a consumer, often without a lawyer and with no legal background. 

12. FREE LEGAL SERVICES - PAUPERS ONLY, PLEASE: A basic principle for free legal service seems to be that free legal service mustn't compete with the financial interests of the bar. Only food stamps qualifies, please. There are many not on food stamps who cannot receive 'pro bono' or other services because they haven't utterly exhausted every last penny of their own and their family's financial resources, sold their homes, emptied retirement and college plans and pauperized themselves. Like the rest of the legal system, eligibility criteria for low cost services are not well-publicized and are a near secret. The message to the public seems aimed at discouraging users, if possible. Don't want to take paying customers - even poor ones - from the divorce bar's billable hours.  This is a part of the reason why a committee of the legal profession's attention to the growing 'pro se population' doesn't move off of the dime.

13. KEEPING THE PRESS UNDER WRAPS: Freedom of the press gets tweaked by lawyer-lobby.  6000 lawyers don't like court reform essays, articles, opinions. 'Ex officio' we have been told that editors receive lawyer comment on contributions critical of the family courts, with un-rebutted, self-serving, predictable answers. Consumers may not quote the law impeccably, but they know when practices violate common sense and "legally correct" may not be justice. They know from experience when corrective mechanisms work and when they don't. There is also a political aspect that frequently comes into play.

14. MONEY MACHINE FUELS DYSFUNCTIONAL CONTENTION: The lawyers easy money machine is called divorce and custody. For it to pay maximally it necessitates a keep 'em fighting 'modus operandi". The "contentious divorce" is "Champagne and caviar" for the divorce bar. It is about endless, gorgeous, billable hours, consultants, GALs, Kids First.  BUCKS. The divorce bar blames clients for contentiousness, but it is their "coaching" of clients that cranks them up, eggs them on for continued fighting. I know we can win!  Are you going to let him/her get away with that? It is about billable hours. The contentious divorce ends when the client runs out of money and the lawyer loses interest.

15. SELF-POLICING, A NON-STARTER: Self-policing by the family court legal profession (a formal complaint from another lawyer) is rare among practitioners in the same courts, who are members of the local bar. Don't mess with your buddies. It is less rare when an outsider enters the game and horns in on turf. Lawyers may whisper and mutter under their breath about judges and bad judgements, but don't issue complaints, unless their interests suffer. They know the legal facts; they also know the "facts of life".  

16. EX OFICIO POWER: Want to win your case? Go to the "Godfather". He's expensive, but he has fingers in every pie with power and influence to spare. Certain lawyers play a huge political role in the family court system and get amazing results.

17. THE SWAMP INHABITED BY CONSULTANTS: Court psychological consultants are a piece of work! Often selected because they "deliver" for certain lawyers and judges on whose referrals they depend. Why do courts use the same old, same old and not contract with recognized quality consultants from, say, Maine Medical Center, the Mass General, etc?  It seems to be about control and "predictable" results. Why do the same consultants seem to get recommended again and again by the same lawyers and judges? Too bad, no statistics!   

18. GOLDFISH BOWL THERAPY: Court mandated counseling in which the details are shared with opposing counsel (not confidential) is professionally indefensible. It can never be therapy. When it occurs it is shameful judicial act, public mind rape and a travesty of any accepted therapy. It should be outlawed.

19. RECONCILIATION IS RARE AS A STATED GOAL: Reconciliation between allegedly abusive parents and child is very infrequently  a formal, written goal in family courts once a judgement is made; it is almost always a part of the plan in human services, Children's Protective cases. Why the difference in not requiring  a plan for reconciliation in every case? We'd say one word: Bucks! Keep the motions (bucks) for reconciliation coming in family courts. Don't reconcile till they run out of money.

Hi, stranger, care to gamble the custody of your child in this broken system? Who complains about this sad zero sum game that cheats parents and children? Is this war necessary? Does it do anyone any good? Have the courts, the Judicial Branch, the bar ever studied the impact of this barbarism on child development? Any simple evaluative studies, such as those done in every industry and profession? One court official opined that they are "tacky". Those who advocate change  are called, "Whiners. Bad sports! Radicals who want to destroy our fine legal system!"  

Every one of the items on our list has cases to back it. The structural problems we note do not come out of thin air. They cry for a legislative audit or courageous investigative reporting. Just ask. We can tell you case by case "where the bodies are buried."


MeGAL is working to bring about Guardian ad litem and Family Court reform. There are additional points to "The Dice Are Loaded" which may be found [HERE]. We encourage you to become involved and can do so by contacting us at MeGALalert@gmail.com as well as your state representative. 

The following have been added to the growing list (updated 02/23/2016):

20.  INADEQUATE SERVING INSTRUCTIONS/EXPLANATIONS FOR 'PRO SE' "USERS": Although the 'pro se' litigants are a 75% majority (17,000 people in 2015, they are not accommodated by the courts even on small matters like serving court papers. No one explains that a registered letter receipt requested, doesn't have to be signed - even when served to a court official. No one explains that a sheriff-served paper, although expensive, is the only sure way. There is also a lack of clarity about court fees. As of this writing, it is not clear whether expensive court fees have to be re-paid for a new attempt after failed service. There is also the matter of "grumpy" clerical officials, who are grudging in providing information to majority 'pro se' users, while more obliging to "frequent flyer" local lawyers, who know the ropes. It is a small but significant, symbolic example of a failure by the court system at even its lowest level to recognize the "new normal" of majority 'pro se' litigants.