Family Law Court Reborn
After Coronavirus Kills the Courts
by Jeff J. Horn, Esq.
Education over Administration in Family Law Court
Family Law Court is well administered and it is usually pretty easy to find the Courthouse and door to enter. Courtrooms are almost always numbered. Enter a Family Law Court building, ask a security officer or staff member where the Family Law Court room is or where a certain judge is and you will inevitably be guided to the right spot.
File your papers with the Family Law Court
in proper form and they will be stamped and docketed and treated like the important proxies for big disputes that Family Law Courts are designed to resolve. Get on the Family Law Court calendar and your case will move with all of the other cases filed close in time to your final link and filed in your kind of case. Know that Family Law Courts are tracking your case. That may not feel very personal or caring but your number is moving along and when it falls out of step with its other filings, it then begins to get a lot more attention.
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood;
Alexander Hamilton, The Federalist Papers
File the wrong papers in the wrong place at the wrong time and the Family Law Court administration process becomes fairly fairly punitive. Send Court papers to the wrong Court and they get sent back to you. Your papers are now filed and late. Send them in late and they get sent back to you. The other side of your case is now utilizing the tools of Court to extract some pain from you. Perhaps the case will be considered uncontested and you will have to spend enormous resources just to get back to the beginning of the case.
Family Law Court – Say the wrong thing
to the wrong staff member at the wrong time and you may find yourself again in hot water with the Family Law Court system and your important case going down the tubes. It is not a matter of malice but a matter of administration. The Family Law Courts need to get cases in and out on the clock. That’s good administration.
Since coronavirus kills the Courts administration meets education.
Coronavirus kills the Courts and there are way fewer Family Law Court appearances and quality is up all around, Court staff have more time to create better online resources. Eager Court staff have time to direct you to those resources and to guide you in finding the right forms and getting them transmitted in the right way. Your forms are electronic and filing is electronic. Hence, the incidence of sending your Family Law Court papers to the wrong spot goes down. This should happen, never again.
If a Family Law Court customer does such a poor job finding the right forms,
filing the right forms and clicking the right buttons there will be a smart human looking at those documents and communicating with that person. A tight electronic filing system takes away errors in administration and replaces it with an active education.
Education instead of administration also means Court staff has an antenna for trouble. Even after loads of resources are made available to the Court customers and even after the Court staff endeavors to help the customer lost in the process and that person still fails to file there is likely a problem that will impact the case. Perhaps the person has limited mental capacity. Perhaps the customer is suffering from a physical or mental illness.
Catching the falling customer at the beginning of the process saves the Court an enormous amount of time and resources. Failing to educate the customers most likely to fail the Court system is a failure of the Court system. Coronavirus kills the Courts; education and replaces administration in the reborn Court system.
Customer Service is Free
In the intro to this multi-part Blog, I shared some wisdom from quality guru Philip Crosby. He wrote the book Quality is Free. I argue Court Customer service is free. Fortunately, the vast majority of the Family Law Court’s customers are good customers. They want their case resolved and finalized and to move on with their lives. Most cases where a customer is represented by a lawyer or easy for the Court to administer. Those cases cost almost nothing in terms of Court staff time.
Only important issues are addressed by the judge and top Court staff. It is important for Courts to remember that they are oftentimes the face of the government. Many in society will have no other occasion meaningfully interact with the government on a face-to-face basis, except in Court. That experience, that customer service experience shapes the individual individuals view of government. Does the government serve me and my interests?
Municipal Court Judge, Philip Miller reminds us what role the Court plays in society. “This may be a person’s only interaction with the government. They should know that the government is there for them.”
Self represented Court customers
in particular, those with significant woes such as very limited financial resources, very limited education and illness will suck up an enormous amount of time. Grabbing those cases early on in devoting proper resources to those cases from the beginning to the end is excellent customer service.
There is always a temptation to resist giving your problem customers a lot of attention. Stray dogs always come back for more snacks. Anyone who has fed a stray knows about this phenomenon. Courts deal with strays who are brought into Court because they fall out of stakes in social conformity. They do not pay their rent and are evicted. Broke and homeless, they need a bunch of resources. Government places them in housing. They get involved with drugs and get ousted from the publicly supported housing.
Now that person doesn’t pay child support and becomes a customer of the county jail on a child-support warrant. All of this may be born of mental illness, drug or alcohol addiction. I do not ask the Family Law Court to solve this person’s lifetime of problems. Indeed, these people need to be addressed by society outside of the Family Law Court system.
Family Law Court and Mental Health
It is when the Court mishandles a person with significant mental health or addiction issues that customer service plummets for everyone else. Use technology to identify the people that have significant issues that will doom their Court experience and detract from the Court experience of everyone else. This starts to sound a little woo-woo, I accept the criticism. I don’t expect Family Law Courts to serve as social workers writ large. I do expect Family Law Courts to identify customers that have no chance of success in the Court system and divert them out of the Court system to other social programs where they might be able to get help and they will cause dramatically less disruption to everyone else in society and inside the Court system.
Coronavirus kills the Courts
Coronavirus kills the Courts the Courts are reborn as a force that gets people out of Court who will disrupt the efficiency of the Court process, do more harm than good and utterly fail. That is good customer service.
Family Law Court Strong
“Mindset change is not about picking up a few pointers here and there. It’s about seeing things in a new way. When people…change to a growth mindset, they change from a judge-and-be-judged framework to a learn-and-help-learn framework. Their commitment is to growth, and growth takes plenty of time, effort, and mutual support.”
Courts are strong organizations. Courts have been around even since feudal times. The Code of Hammurabi Code of Hammurabi was inscribed in stone nearly 4,000 years ago and set out basic rules of human behavior and a mechanism within the society to enforce those basic rules. The Code sets out some severe penalties viewed by today’s sensibilities, but is flavored with a sense of balancing one’s interaction with society, family and trading partners.
The strengths of the Courts are access, stability, consistency and even handedness. Society accepts Courts as a strong institution. Coronavirus kills off the parts of the Court system that undermine those bedrock principles. In the reborn Family Law Courts, bedrock principles of fairness and due process survive and thrive.
“The bureaucracy is expanding to meet the needs of the expanding bureaucracy.” Oscar Wilde.
When the bureaucracy serves itself over the mission, public confidence in the institution wanes.
Mindset means the starting point for every decision has the big end in mind.
Mindset means applying the values of the institution to its mission. Coronavirus kills the bureaucracy. It kills the arrogance of the institution that makes its customers, one they say to calm weight when they say to wait and and tolerate inefficiency. Showing up is necessary when it’s necessary. It is no longer a way to get easy points in the Family Law Court system. Showing up in Court is necessary when due process and fundamental rights are on the line. Land administration is the goal technology supplants showing up. That is a mindset shift. When accountability is enhanced by the use of a I and advanced technology, waiting for decisions and suffering inconsistent decisions goes away. That’s a mindset shift
Coronavirus kills the Courts and shifts the mindset of judges, Court staff lawyers and customers.
“The Courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.” — Sandra Day O’Connor
Alternative Dispute Resolution
Justice O’Connor was exactly right. Since the 1990’s dispute resolution has evolved from an alternative to the way disputes are resolved. The truth is the Court started dying in the 1990s when alternative dispute resolution grabbed hold of virtually every segment of the legal market. The perennial best-selling book by Roger Fisher and William Ury, Getting To Yes, Getting to Yes: Negotiating Agreement Without Giving In by Roger Fisher, appeared on nearly every lawyer’s desk and every law school book list. What had been traditionally a labor dispute resolution tool had migrated well into the realms of securities litigation, consumer disputes, family law and civil litigation.
The early 1990s ADR mindset was:
Lawyers to Judge – “We are stuck. We have done everything we can. Judge “Why don’t you try that mediation or arbitration stuff?” That mindset has shifted to file your case, exchange basic discovery and go to mediation. It is a given that your case will be the subject of nontraditional Court resolution techniques. It is a given because Court, litigation and trials are extremely expensive. The results of trials are uncertain and can be devastating when you choose wrong. In a study of 4,532 actual cases co-authored by Randall Kiser and reported in How Leading Lawyers Think: Expert Insights Into Judgment and Advocacy, “The average cost of adverse outcomes was $43,100 for plaintiffs and $1,140,000 for defendants.” Exposing the case to alerted neutral can only contribute to the critical inputs necessary to avoid devastating and unpredictable trial results.
Titling mediation and arbitration “alternate” dispute resolution
is the height of deceptive branding. Use of the word “alternate” implies a process outside of the standard and tested – experimental in nature. The reality is that the “trial” is the alternate and that Court-based litigation is the alternative to every other reasonable, good faith way of resolving a case. Mediation and arbitration offer justice without Court buildings. They need Court staff to track progress and to influence compliance – picture a crossing guard rather than an armed officer. Lurking judicial intervention serves a coercive purpose. No one wants to be smacked for failing to work in good faith while under the judicial umbrella.
Certainty and Uncertainty
Mediation and arbitration work because litigation is bisected into two categories – the certain and the uncertain. The certain is the confluence of agreed upon positions, facts, clear law and provable evidence. The uncertain is the opposite – the positions, facts, law and questionable evidence. Every case has both. The effective mediation process reinforces the merit of the certain while unearthing and highlighting the uncertain.
Once you see your uncertain positions, facts, law and evidence through the eyes of an objective, learned, neutral party – you open up and re-think the range of possible resolutions. What is the cost of going forward and the likelihood of success? Do the math? Factor in the soft costs of settlement – what is foreseeable if i make this deal? Once you know the “knowable”, whatever decision you make will be better than the position you brought to the bargaining table.
Cost of going forward can be materially reduced in ADR
because you likely answer high level questions without having to prove the truth of every fact. You can settle the case with far less information than you can try a case. Gathering information costs enormous amounts of time and money. No Family Law Court buildings are needed to accomplish anything in the realm of ADR.
Complex important cases are oftentimes pulled out of Family Law Court.
The consequences of a public airing of the dispute may do great harm to a business or may expose one to criminal liability. The taxing authorities can utilize data exposed in a public lawsuit to collect tax, assess penalties or even expose one to criminal prosecution.
Retired judges become a new crop of arbitrators and mediators.
Their brothers and sisters on the bench feed them mediation and arbitration work. When the sitting judges retire there are ample work opportunities for them. The sitting judges love the alternate dispute resolution process because it keeps the docket moving. If the goal of the bureaucracy is to move cases in and out – an outside force helps you reach your numbers is a welcome force indeed.
Mediation and arbitration is conducted in a smaller setting. You don’t need to be in the Courthouse with hundreds of people. There is no need to go through metal detectors and have your water taken away. Sit in a nicely appointed conference room, lunch may be ordered in and you’re treated like a civilized adult. Alternative dispute resolution has been killing the Courts for years. It is the key tool available to all Court stakeholders since coronavirus kills the Courts.
Online Dispute Resolution (“ODR”)
“Justice is changing its fundamental place.”
Chris Draper PhD, TROKT
The spirits that animated the transformation of dispute resolution now propel the Court system into the realm of Online Dispute Resolution (“ODR”). There a ODR vendors including TROKT which powers the ODR Bowl – online mediation competition, Kleros – open source distributed dispute resolution system, Modria by the NYSE traded, Tyler Technologies and Matterhorn – inspired by the University of Michigan Online Court Project provide out-of-the box technology solutions and a glimpse into the possible. Colin Rule of Tyler Technologies Colin Rule set up an early ODR at EBay to resolve high volume, low-value disputes online.
He discussed ODR with Federico Ast of Kleros Federico Ast – Founder & CEO – Kleros:
Through Tyler Technologies, I am very focused on the Courts. We are launching ODR mechanisms for small claims, for landlord-tenant, for debt, for family cases, The Pew Charitable Trusts have announced that they will be putting hundreds of millions of dollars into research into the effectiveness of ODR as a means of expanding access to justice….
I’ve been talking about ODR for years and now it’s actually happening, all over the world. I kind of feel like the dog that caught the car. There are big challenges in bringing it all live, but it’s exciting. It can be a little overwhelming, but I truly feel this is the biggest opportunity we’ve had to expand global access to justice in the past 100 years. But we have to do it right.
That interview was in 2018. The technology, the vendors and now the imperatives exist to act. Coronavirus kills the Courts and magnetism draws together the powerful forces of access to justice, looming technology and dissolved bureaucratic inertia.
ODR is a system of distributed negotiations.
It opens the door to communication and dispute resolution without a physical appearance without a physical building. Chris Draper PhD Managing Director of TROKT asserts that online dispute resolution has been in use for resolving labor disputes since 1992. Further, ODR has found a home in resolving education disputes such as resolving individual education plans for students. the seam strikes a similar beat. High volume, high emotion but low dollar disputes are ideal for ODR. ODR at its simplest can be telephonic negotiations and at its advanced, a system of distributed negotiations that resolves disputes in a flash. ODR is also ideal for community mediation. Disputes that arise between neighbors but do not warrant criminal charges or full-blown civil litigation are ideally addressed and promptly resolved through online dispute resolution.
“It had long been true, and prisoners knew this better than anyone, that the poorer you were the more likely you were to end up in jail. This was not just because the poor committed more crimes. In fact, they did. … when the rich did commit crimes, they often were not prosecuted, and if they were they could get out on bail, hire clever lawyers, get better treatment from judges. Somehow, the jails ended up full of poor black people.”
― Howard Zinn, A People’s History of the United States
Courts have already been killed in the area of bail. Many Law and Order episodes feature a dramatic bail hearing. The prosecutor offers the passionate reason why the accused should be kept in jail and bail should be set at a gazillion dollars. The defense argues that the accused is innocent and is an upstanding citizen with significant stakes in the community and no risk of flight.
Off-screen a fat greasy bail bondsman with a dirty T-shirt and an unlit cigar, posts a bond for the accused and off he goes. That is all dead. The police make an arrest. They punch a bunch of data into a program and a logarithm scores the accused. For the vast majority of accused they are cut loose. This is called bail reform.
Bail reform is access to justice.
It turns out that everyone getting locked up before the case was adjudicated was a poor person or a minority person. There were no financially well-off people and few white people. In the beginning, there were some moments where the system was a little half wobbly. Some really bad guys would cut loose and after arrests. Now you never hear of bail disputes. State and county prosecutors have mastered the system and know how to persuade the Judges to treat an individual defendant in a bespoke manner. Bail reform emptied out the jails before Coronavirus killed the Courts.
Bail reform is a logarithm.
Likewise bail reform is a a tech device. Slap an ankle bracelet on and the accused and off they go. They can live home, eat their own food, go to their own doctors and maybe even go to work. Not only does the government save thousands of dollars in supporting another inmate but the inmate supports himself or herself. Bail was dead before the coronavirus. Bail reform is a model of how to implement a couple critical pieces of technology with existing human resources in the Courts and roll it out. It will not be perfect on day one.
Everyone will get used to it and soon enough coronavirus kills the Courts and the Courts are reborn better and fairer. Recall that this blog was written during the 2020 coronavirus lockdown. In May 2020, Jack Arsenault, highly regarded white collar criminal defense attorney posted an elegant essay on Linkedin. Here are the essence of the societal debate – balancing the rule of law and objective thought from Jack Arsenault https://www.linkedin.com/in/jack-arseneault-28b852ab/ :
The criminal justice system must address the fact that, until there is a vaccine or effective treatment for the highly communicable and potentially fatal COVID-19 virus, a prison sentence carries with it a significantly increased risk of death.
These facts militate strongly in favor of avoiding custodial sentences whenever a non-custodial alternative is available.
But there is something of a flipside.
Everyone is on a sort of probation right now, operating with any number of significant curtailments to autonomy. To the uninformed outside observer, many of our last eight weeks would be virtually indistinguishable from house arrest. This raises the question: Is probation even punishment in the time of COVID? If nothing else, the gap between freedom and probation has been shortened dramatically.
One of Arsenault’s clients on federal probation quipped that he had more freedoms than locked down Americans, “at least I could go to my daughter’s soccer game.” Strange times in society.
None of my advocacy connected to prison reform is directed to hardened criminals. Murderers, rapists, violent criminals and multiple time offenders are excluded from a regime that tests the use of rapidly improving technology to replace incarceration for searching accused and convicted offenders. Coronavirus disrupts the prison system but least impacts prisoners with the longest sentences earned by conviction for the most heinous crimes. Reforms in that realm spring from a different societal well.
Coronavirus kills the prison system and demands reform.
In prison tons of strangers from tons of backgrounds piling together. The together, exercise together and or squeeze within a defined ecosystem of illness, mental illness and swirling germs. We as a society say you committed these certain offenses and now you will pay the price by losing your liberty. A pretty simple and straightforward contract. Nonetheless, people breach their societal duties every day knowing full well the potential consequence is loss of liberty in the form of imprisonment.
I have no problem with society carrying through with its part of the bargain and inflicting a measure of punishment to keep order in a potentially chaotic society. The question is does the simple process of imprisoning people for defined periods of time serve its desired purposes. Our prison system is backfiring on society? After all, when you take someone into prison they become your child. You have to provide for their hygiene, their meals, their entertainment and their medical treatment.
Pre-corona virus there was no societal momentum to letting convicted inmates loose because jails are unpleasant. That is not the point. Coronavirus points out the ultimate flaw of jamming many people into a small space. Ankle bracelets and transdermal alcohol monitors are easily programmable by technicians already employed by the government. Monitoring these things cost pennies versus thousands of dollars to incarcerate a low-risk inmate.
Who sits in prison?
Drunks with multiple DUIs. Drug addicts and minor drug dealers. Child support evaders. Repeat petty criminals. Ankle bracelets and transdermal alcohol monitors are highly effective. When technology is viewed by leadership in Corrections as a powerful partner, convicted offenders can be tightly monitored without the enormous costs and risks associated with populating prisons. Coronavirus kills the prison system and saves it through adoption of technology and tremendous cost savings.
A flaw in the implementation of technology to replace legacy bureaucratic systems is the customer without technology. That customer has always had to show up to pay their taxes if they don’t have a checking account; show up to Court to physically hand in papers or check on what’s going on. There is an element of our community that will be no-tech or low-tech.
The Courthouse will still exist;
it will just be a useful and efficient tool in the administration of justice. The low-tech Family Law Court customer can still come to the Courthouse and get help. They can still come to the Courthouse where they will be resource rooms, access to computer terminals, form videos and assistance.
For the person without technology, who needs to appear in Family Law Court telephonically or on video the resource room can also be a testimony room or a video conference room. The rooms can be set up in the Courthouse. Rooms can also be set up and other underutilized venues.
Utilize the model of the sharing economy in a non-Court government building. Resources, videoconferencing and teleconferencing capabilities for the low-tech Court Customer can be established in a local library or municipal building. Enroll the low-tech Court Customer with community resources and optimize underutilized government spaces.
During the coronavirus pandemic, schools went online across the country. Many families did not have sufficient technology. School staff administration and teachers descended into the community with laptop computers and delivered the technology to its customers. What was a complete bureaucratic blockage opened up and capabilities flooded into the community. The same mindset applies here. Creating self-help resource spaces in the Courthouse and in the community solves the problem of low-tech or no-tech customers.
Government has been doing this forever.
The more rural communities have always figured out a way to get resources away from the more populated centers. Libraries have traditionally thrived as a government and community partnership. Libraries and the USPS partnered to form the Village Post Office Program. As the role of libraries changes, they can be a source of space and furniture and technology to serve the low or no tech populations.
Easy-to-follow online forms together with step-by-step video instructions will make electronic filing a reality for even those least capable of taking advantage of technology. Coronavirus kills the Courts and community resources make justice work.
Meet Jeff J. Horn – Lawyers Toms River NJ
Note: This series 0f blog posts was planted and fertilized to grow into a short book. As with so many creative projects, this one has taken on a life of its own. The pace of change in the court systems handling of cases during the coronavirus lockdown gave me pause. If I write an authoritative and useful book, people will rely upon some of the key takeaways. It is entirely likely that by the time the reader needs to utilize those key takeaways they will be stale, incomplete or plain wrong. Hence, what was enthusiastically pursued as a book project will now be broken down into a series of substantive blog posts. I have extracted wisdom from many sources. A number of people were kind enough to speak with me, offer insights or pen important words as the court system wobbled. Enthusiastic thanks to: John Koufos, Right on Crime, http://rightoncrime.com/author/jgk/; Judge Thomas O’Brien (Ret.), Judge E David Millard (Ret.), Judge Philip Miller, Walter Luers, Esquire, Jack Arsenault, Esquire, Elise Holtzman, Esquire Lawyer’s Edge, Randall Kiser, Esquire, Ron Gaboury, CEO, Yorktel, Chris Draper, PhD, TROKT and Suzette Parmley, ALM, New Jersey Law Journal who contributed my directly helping me or upon whom I eavesdropped and now parlay shared wisdom here.