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Brian Burke: About Your Divorce (Column 160) — Old Divorce Lawyer’s Notes to New Family Law Judge

Who is the imaginary judge I’m writing to? What would provide the best legal training and experience?

The first About Your Divorce column was published by Noozhawk on Valentine’s Day 2011. I don’t remember if the timing was consciously ironic.

Regardless, my objective was to share what I’ve learned about divorce — especially in South Santa Barbara County — after 35 years of practice as a divorce lawyer.

At first, I did this by using various fictional situations and characters as the subjects and wrote from the perspectives of a friend/observer, a lawyer and a mediator.

For the last two years, I’ve been writing about 53 Oblique Strategies, will eventually will be published as a set of cards.

The idea is to stimulate or inspire the changes in old beliefs and values necessary to resolve impasses.

The impasses can be understood as the last best chance to identify and reconsider if basic notions used to navigate life in the past will be used to navigate the future.

The deck was completed with the last column, but I still have a lot of information and possible insights I’d like to share with a judge new to the family court — a judge who hasn’t already come to a lot of his or her own conclusions.

I’ll say it once: I know of no judge, new or well-established, who is interested in what I have to say about divorce. So, the judge to whom I write is a figment of my imagination. My audience is still you, the readers of this column.

Santa Barbara’s revered writing teacher, Shelly Lowenkopf, once taught me that you can “communicate with your reading Audience by addressing a Third Party.”

This technique protects the intended audience from feeling talked at. Instead, the audience overhears what’s said to a third party. These notes will be written from that point of view.

The Judge, Gender and Pronouns

I’ll create the judge by starting with gender. It doesn’t matter.

For many years, there were no women on our Superior Court; that’s changed. Presently, three of the four judges who have a family law calendar are women, and that fact is not a subject of conversation among local divorce lawyers.

For once I agree with my colleagues in the belief that good or bad judging is a gender-neutral activity. So, as I write these I’ll probably switch gender specific pronouns from one note to the next.

How the System is Rigged Against “Success”

One reason I am going to load my fictional family court judge with specific training, experience (professional and personal), and personal qualities of temperament and character is that the design of our judicial system works against his success as a family court judge.

Another way to say the same thing is that a judge excellent in the trial of serious criminal cases, or excellent in the trial of complex civil cases, could be a disaster if assigned to the family court.

A lot can be said in support of those two sentences, but it boils down to this:

The Operating System for Anglo-American trials and hearings is a body of law called the Rules of Evidence or the Evidence Code, which has evolved in English-speaking countries over several hundred years.

These rules presuppose the “trier of fact” (judge or jury) will make a yes/no (guilty/not guilty or liable/not liable) binary decision and information is presented in a way that facilitates that kind of choice.

Asked to decide, “What is best?” or the more troublesome, “What is fair?” the court hears two sides of the case even though there’s good probability that neither is “best” and neither is “fair.”

A good trial judge can run a civil or criminal calendar or trial by the book.

The principles necessary to resolve family law cases sometimes originate at the margins of the judge’s professional experience, from his personal experience of life and from those values that create what we often call character.

Legal Training and Experience

In California, Family Law is one of the few areas where there has been a complete makeover of fundamental principles.

Marital property law was a major concern for the founders of the state.

Since land had been held pursuant to Spanish-Mexican rules of community property, the state’s founding fathers thought it was essential to preserve that system in the state’s constitution when it was drafted in 1850.

That was good for continuity of title, but how did Spanish-Mexican community property rules deal with divorce? How many divorces had there been in Mexico or Spain by 1850?

None.

One project for California courts after 1850 was to figure out how to graft divorce onto a property system from cultures where there was no such thing: community property + divorce = TBD.

After 1850, the California courts characterized marriage as a contract. Its terms were the typical marital vows (mutual support, respect and fidelity).

A divorce could occur when one party claimed that the other had broken a vow. The trial was a breach of contract action decided by a jury if either side requested one.

Damages for the breach could be awarded as an unequal division of community property and/or an award of alimony.

In 1970, the community property + divorce project came to an abrupt halt when the legislature enacted no-fault divorce with equal division of community property. Ours was the first “no fault” state in the Union.

In the late 1970s, Stephen Adams started to collect and organize all the new statutes and all the new appellate decisions that interpreted and filled in the gaps in the new system.

Acquisition of the corpus juris

Adams created loose-leaf notebooks, which built on the initial outline. At first there was one big binder and then two. Today the printed version of California Family Law Practice requires five binders.

The Adams outline has been expanded but essentially unchanged. His text is a corpus juris of California Family Law, which takes much less time to master than the 14 subjects included in the California Bar Exam (of which Community Property is one).

That’s what the judge needs to know about the substantive family law. It takes an effort to learn, but it’s well-organized and, for the most part, easy.

A practicing lawyer using the outline by Adams can learn family law many times faster than by studying the material from any law school class, so there is a big bang of knowledge from every hour of study, which is satisfying and rewarding.

Research Experience

There are several Family Law issues that are not completely resolved and the judge must be somewhat inventive in coming up with a hybrid rule for a specific case. What really counts is the training and supervised research the judge received after law school.

This is why top law school graduates usually clerk for a judge, though any kind of judicial research responsibility is excellent training for career-long competency. Some lawyers thrive on pure research, but most tire of doing it for someone else after a year or two.

Criminal Law Experience

Our system works best with the disposition of criminal cases. Lawyers practicing criminal law (either as prosecutors or defense attorneys) and judges serving in a criminal court learn how it works from direct experience.

This is invaluable experience for a family law judge who can appreciate that what goes on in his family court is not at all like what happens in a criminal courtroom.

Then he must figure out for himself what implicit assumptions underlie criminal practice and have no place in family court.

One example is that the prosecution and the defendant always have an adverse relationship. This is not always (or even usually) true of a husband and wife who are reorganizing a family in which they share a heavy investment.

Another example is that a criminal trial will generally produce a winner and a loser.

It’s different and rare when one side “wins” a division by two or “wins” a custody arrangement or parenting plan. The judge must figure out the consequent effect on the management of the family law court without the assumptions he questions.

Drug court

The court’s Operating System works against the success of the family court judge and so do the cases on which he will spend his time.

A small minority will use most of his resources, and he’ll have to deal with a small subset of couples that give divorce a bad name. I call them toxic divorces.

There may be nothing a well-intentioned judge can do with these cases. Most will involve addiction, which drives the parties and affects the others in the family.

Lawyers get no training on how addiction may affect the work they try to do; if there were such training there isn’t consensus about its content.

Ideal for a family court judge would be some experience with judicial attempts to deal with addiction — and a stint in drug court would teach him what the court can and cannot do effectively in an effort to deal with addiction.

Law school?

Recommended, but not essential. Seriously. There are a few (but not many) graduates of Harvard Law School who practice family law and even fewer, if any, who preside over family courts.

Graduation from a “selective or top-tier law school” is not a particularly useful qualification.

It is possible skip law school and take the state bar exam by clerking with a lawyer or judge. It is also possible to go to law school online.

I know one attorney who qualified for the Bar Exam by clerking and another who graduated from an online law school. They are both very good lawyers. They are both naturals, and they would have excelled at any school they attended.

Column 161: The family court judge’s personal experience and why suffering is the most important.

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail [email protected]. Click here to read previous columns. The opinions expressed are his own.

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