Testimony

On behalf of the Family Law Section of the Contra Costa County Bar Association, I am authorized to speak in favor of the proposal for Family Court 2000.

In recent years, caring members of the Family Law Bar have become increasing frustrated by the procedural and substantive complexity of the family law system which makes it virtually impossible for them to render cost effective service to the middle and low income client. Even for the higher income client, the cost of obtaining a divorce in this state has become unreasonable. We have come to a point where the vast majority of the litigants in family law cases in the state of California end up representing themselves, occasionally by choice or more usually, by financial necessity. The very complexity of the procedural restrictions which prevent attorneys from being able to handle the middle to low income divorce in a reasonably efficient and economical manner, make it almost impossible for the pro pers to function effectively. As more restrictions and procedural hoops are added, cost of legal services mushrooms beyond the reach of most litigants. The system is increasingly arcane, mysterious, and technical.

The Family Law Section of the Contra Costa County Bar supports the introduction of a family law system which simplifies procedures and increases the accessibility of the courts and of legal services to the average family law litigant.

Such a system requires, at a minimum, the following:

Simplified forms so that a litigant understands the relief available and is not prevented from obtaining legitimate relief because of an inability to understand the proper form, the terminology for relief, or worse, to fail to check the correct box. For this reason, we support the proposal for a single pleading for all family law actions resulting in one file for one family and the necessary adjunct to that approach, the ability to grant all appropriate relief at the initial hearing, whether or not the particular box was checked. In this way, the vast majority of pro per litigants are not deprived of their day in Court for failure to understand the forms, which may sometimes be confusing to lawyers themselves.

Equally importantly, we support the proposal for early judicial intervention and case management. Many litigants, particularly the unrepresented ones, go to trial because they don't know how to resolve their problems any other way. They do not know what options are available to them, the parameters of the court's jurisdiction or the available practical solutions to their problems. This overburdens the already terribly strained judicial resources and creates unconscionable delays in some cases.

Each family law court should have an available and staffed Help Center. The system is unduly complex and the average litigant is not capable of navigating it from initial filing to final judgment without significant assistance. Judgments are submitted numerous times and rejected for failure to check the correct box or provide the correct form. It is unreasonable to expect pro per litigants to know this and it is equally unreasonable to expect either the court's staff or members of the Bar to volunteer their time in order to educate pro per family litigants on these abstruse and confusing procedures. Most family lawyers donate a great deal of their time in order to assist in either pro bono cases, teaching workshops or other efforts to educate the public on their rights and responsibilities within the Court. It is not reasonable to expect them to fund a full-time help center on a volunteer basis. For this reason, the help center must be part of the general court funding. A fully staffed Help Center with Dissomaster services is essential in a system in which it is easier to fill out a 1040 than an I & E or final disclosures.

Remember also that with the complexity of the current laws, the unrepresented litigant is helpless. Pro per litigants don't have access to a Dissomaster, much less ability to run the program. Yet, this is the benchmark for mandatory support orders. How can they be expected to make reasonable decisions to settle their support disputes when they have no access to the tools which will advise them of the reasonable range of possibilities? It is ludicrous.

A philosophical decision must be made now. The average taxpayer never sees the inside of a court room until he gets a divorce. Either the legal system serves the public or not. And if the answer is not, come clean and acknowledge that we are not equipped to respond to the needs of families.

The simplification of the procedural rules is crucial to the survival of the family law system, not only after the year 2000, but indeed over the next year or two, as the system is breaking down under its own weight and that of the vast number of litigants seeking redress. For example:

The cost to the litigants is obvious. Unapprised of their rights, they are lost in a morass of technical rules and unintelligible forms, which are consistently either rejected by the court because they fail to meet the specific requirements of the relief sought or, courts are forced to fudge on the rules in order to grant the obvious relief which is needed.

It is equally frustrating for the lawyers. The cost to them is the loss of potential clients whom they want to help.

A key to the simplification of the process is the unbundling of legal services. Many lawyers would love to be able to represent a client for the limited purpose of obtaining a child or spousal support order involving Dissomasters and the like. However, the other issues at stake may not warrant an attorney's involvement. Nevertheless, the attorney has liability for those, must do his "due diligence," thereby driving the fees higher than they should be for the needs of a specific family. Immediate steps need to be taken to develop guidelines for unbundling of legal services which will enable attorneys with confidence and security to offer limited legal services, thereby meeting the client's needs and generating a service to a litigant without incurring unreasonable and unnecessary liability. A few attorneys are experimenting with ad hoc arrangements for unbundling and trying to limit their exposure through their retainer letters. However, the vast majority are afraid to do this for fear of either losing their malpractice insurance coverage or simply exposing themselves to unreasonable risk. And why should they be expected to? When the system requires an attorney to do unnecessary "due diligence" to protect himself and legal fees are driven out of proportion to the benefit derived by the clients, clients are justifiably angry at the unnecessary legal work. Attorneys are equally frustrated.

There is a crisis in the family law Bar of which the committee may or may not be aware. A large number of family lawyers are faced with an untenable choice to the detriment of their own families. Either they expose themselves to liability by offering limited legal services despite the absence of clear guidelines, or they do work for which they know they are unlikely to be paid in order to protect themselves. Ask any family lawyer about accounts receivable and the story will be the same. They do not expect to get paid on many of their cases because they know the clients cannot afford it.

Most family law litigants do not want to end up in court, but do not know that there are other alternatives or how to access them. The unbundling of legal services, together with a meaningful help center could go far toward reducing the unreasonable strain which is now burdening our family law courts. Add to this official sanction and encouragement of alternative dispute resolution, mediation and negotiation as problem solving techniques and the system would be substantially improved.

Don't forget, however, that litigants cannot meaningfully negotiate unless they have some knowledge of their rights. They cannot evaluate a settlement proposal without knowing what the court is likely to do. They cannot settle a support case, for example, without access to a Dissomaster. A system which simply encourages them to negotiate, while depriving them of an effective means of learning their legal rights, is a sham.

I know that the Legislature, in increasing the technical complexity of the family law system has intended to increase the overall "fairness." Nevertheless, despite the good intentions of the legislature, the tinkering of the last few years has deprived the average litigant of access to the resources which they most need.

Although I have focused my comments on the middle and low income families, they are not tended to be so limited. Perhaps the upper income group can "afford" to spend $40,000.00 or $50,000.00 or more on a divorce, but why should they have to? If that is what is required by this legal system, then the system is wrong and needs to be simplified, streamlined and brought in tune with the needs of a rapidly evolving society.

Remember, please that family law courts are the most common interface between the average taxpayer and the legal system. A system which deprives over half of the litigants of a reasonable opportunity to learn their rights and to find simple and direct solutions to their legal problems is failing them.

I strongly support a restructuring of the family law system under the general guidelines of Family Court 2000 which will enable the courts of this state to experiment with more logical, meaningful and responsive solutions to the problem of children and families. I shudder to think of the burden on the courts by the year 2000 if this system is not implemented and implemented immediately.

The families of the State of California thank you for your consideration.