Anne Stevenson: In Defense Of Self-Represented Litigants 3

Opinion: In Defense Of Self-Represented Litigants

ANNE STEVENSON, The Connecticut Law Tribune

Despite the economic barriers to justice faced by struggling Connecticut families, rising from the ashes of the highly charged public debates over how to reform the family courts is a shockingly insensitive outcry from court industry insiders demonizing the 85 percent of divorcing parents who have chosen to invest in their families instead of attorneys.

Tauck v. Tauck was perhaps the most inefficient and expensive trial in Connecticut family court history, spanning over five years, 600-plus filings, and ending in an 86-day trial in 2007 that played out before Judge Holly Abery-Wetstone on Middletown’s Regional Family Trial Docket. According to the Hartford Courant, the family paid out some $13.3 million in fees to the dozens of legal industry professionals on the case, including $1.3 million paid (without challenge) to attorney Gaetano Ferro, the children’s guardian ad litem.

Clearly, the legal industry professionals were the big winners in the Tauck case, and if ever there was a case for cutting out the middleman and going pro se, it is the Tauck divorce. While some may be quick to blame the Nancy and Peter Tauck for their part in spurring on this “high-conflict” litigation marathon, one might also question the competence and propriety of the judges and legal professionals who had clearly lost control of the case. Did Judge Wetstone really need help deciding the case from dozens of industry professionals who just couldn’t seem to agree with each other on much except that the $13.3 million they charged the family was “necessary and reasonable”?

At the end of the day, the Tauck children might wish their parents had been forced to deal directly with each other pro se, and could probably give you a list of better ways to spend the $13.3 million in fees derived from their family’s misfortune.

Yet in June 2012, Connecticut’s Chief Justice Chase Rogers told the Connecticut Bar Association that her “number one concern” of mutual interest was “the increasing number of self-represented parties.”

“We are going to have serious problems continuing to provide quality justice unless we tackle this issue head on,” said Rogers, who did not extensively address quality concerns expressed by industry consumers. Rogers asked the CBA to support legislation meant to “guarantee money for legal services and technology improvements for the Branch.”

One year later, the legal services industry’s concerns over the impact that self-represented parties were having on business were reflected in the Family Commission’s meeting minutes: “It was also raised by Judge [Maureen] Murphy that some attorneys perceive the Branch’s efforts to address the volume of self-represented litigants in an effective and efficient way as negatively impacting their business. It was suggested that more communication with attorneys to better understand their issues might help to alleviate some of their concerns.”

The question as to the Judicial Branch’s ability to provide equal access to justice for consumer litigants under pressure from the Connecticut Bar Association is a legitimate one. Incoming CBA President Mark Dubois recently expressed his concerns Connecticut Law Tribune that judges have become victims of “histrionic” and vengeful pro se family court litigants: “These litigants refuse to compromise or cooperate with regard to the simplest matters. They use the courts to advance their own narcissistic and histrionic agendas. They blame everyone but themselves for their problems, and post their complaints about everything and everyone on blogs and other internet soapboxes in vitriolic and ad hominem attacks. They drain every ounce of time and patience from the judges and court personnel who must deal with them.”

Three days later, Dubois’ exact sentiments appeared in a Hartford Courant editorial that trivialized consumer fraud concerns and urged “moderate reforms” for GAL’s skewed in the financial favor of the legal services industry.

Since, according to Judge Murphy, under current guidelines, anyone can be a GAL and GALs are not usually permitted to act in a duel role as the child’s attorney, this begs the question whether the CBA even has a dog in this fight any more than the Screen Actors Guild does? Considering the number of GAL’s who recently dumped their caseloads after their questionable business practices came under scrutiny, disaffiliation from CBA might not be a bad thing.

The more troubling implication behind Dubois’ statement is that there is a legitimate reason why even the most unfit divorcee should have to pay millions in legal fees and spend years of their lives in court merely because they are suspected of having an impairment or disability that is inconvenient to the court, but not necessarily indicative of one’s parenting skills. It concerns me that the lucratively convenient purpose of the Regional Family Trial Docket is to single out and impose extraordinary costs and burdens on the families of such inconveniently impaired litigants.

If Dubois is suggesting that exploitation complaints coming from disabled parties lack merit for debate, the U.S. Department of Justice would have to disagree with that statement given the Justice Department’s recent announcement that it opened a civil rights investigation into whether or not the Judicial Branch discriminates against disabled litigants.

In 2003, the Judicial Branch entered into a settlement agreement with the DOJ to resolve disability discrimination claims filed by litigants. The timing of both investigations coincides with legislative task forces that convened in 2002 and 2013 to address complaints from parents about the way the family courts were doing business.

Regardless, Dubois appears to have misunderstood what over 80 parents recently told the legislature about their experiences in the family courts, and how it came to be that so many of them were bankrupted into representing themselves pro se in custody battles. Parents said that they were bled dry through questionable court industry professionals who could not agree on what was best for their families.

During the 15-hour hearing, parents said their families did not benefit from court-ordered (adversarial-based) mental health evaluations and services because their therapeutic disclosures were debated on the public record with great embarrassment and risk, causing them to lose their children, jobs, homes, and even their freedom.

According to testimony, all of the complaints parents filed professional oversight boards were dismissed without inquiry, which is unsurprising given that the Judicial Review Committee has only held 13 public hearings since the 1980s. Perhaps Dubois, who is Connecticut’s first chief disciplinary counsel, could explain how it came to be that the family courts could very well be run by the most honest and ethical workforce ever known to mankind?

Since it’s not the parents, but the CBA and Judicial Branch members the DOJ is investigating, perhaps it’s time to consider the fact that the CBA and Judicial Branch do not represent the interests of consumers so much as the promotion of the legal industry itself. Some of the “modest reforms” their lobbyists are proposing may amount to little more than a stimulus package for legal industry professionals to perpetuate the dangerously problematic cases they complain about.

While the column by Dubois’ and an op-ed by Rogers in the Courant both concede that certain aspects of the family court industry are ill-supervised, is buying more hens and hiring more foxes to guard them likely to be the panacea the families themselves are looking for? Is it possible that 85 percent of litigants are too rabid for the courts to offer them the same dignity and respect and dignity automatically provided to attorneys?

After all, children raised by offbeat, politically active parents often turn out just fine, but the same cannot be said for innocent victims of out-of-control court systems.

If the Judicial Branch will not take a step back to allow the flooded legal market to correct itself, perhaps what divorcing families really need is not an attorney, a therapist or mediator, but help from the FBI’s white collar crime unit.

Anne Stevenson is a political analyst and freelance journalist who has written a Washington Times series of articles on the Connecticut courts that were accepted as a contender for the 2014 Pulitzer Prize. Stevenson is a graduate of Tufts University who attended Suffolk University School of Law.

Source: The Connecticut Law Tribune

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