Thursday, March 22 , 2018, 1:15 pm | Heavy Rain Fog/Mist 58º


Brian Burke: About Your Divorce (Column 164) — Humility and Curiosity in Family Court

Google provides a dozen long lists of positive adjectives. There are at least 100 words everyone would consider desirable attributes for a judge, so my list is admittedly arbitrary and idiosyncratic.

I was a disengaged Boy Scout. However, the Scout’s Law is firmly implanted in my memory, and it helped me write this in less than three minutes.

As with a Boy Scout, a good family court judge should be trustworthy, loyal (?), helpful, friendly, courteous, kind, obedient (?), cheerful, thrifty, brave, clean (?) and reverent (?).

Instead of these qualities, however, I will focus on the qualities of curiosity and humility.

It isn’t obvious why the effective family law judge needs both to do this difficult work, but it is enough to appreciate its complexity and how the judge could be an agent of good while exercising the power of the court.

A good family court judge’s humility doesn’t have to be demonstrated. She could, I suppose, appear to be a stone cold legal robot, if she privately realizes she will be continuously confronted with cases where there isn’t a right answer and where it might not even be possible to articulate the correct question.

Nevertheless, she must pursue the knowledge of how to use power in a way that minimizes the potential harm of its effect.

Another benefit of humility is that it sets the judge free from the natural desire to “be right” and thereafter “consistent.”

As citizens, we want the application of our laws to be predictable. Regular judges preside over trials and are expected to make a stream of decisions on procedural issues.

To rule correctly means his decisions are in accord with what most other trial judges would do and in accord with what an appellate court will instruct him to do.

When neither the question presented nor the best answer is discernable in a family court case, the judge’s humility will allow him to act on incomplete information, recognizing his decision may not be “best” or “right.” This makes it possible for him to objectively assess the effect of his action.

If it is not what he expected, he can forego the presidential (in the general sense of the word) value of what he’s done in the past and try something else in the future. Therefore, curiosity is a natural companion to humility.

Not all good judges need to be students of human nature. After observing the activity of a typical family court, I suspect most good, experienced judges would say something like, “That’s not what I signed up for.”

For example, Donald King is California’s best and most influential family court judge to serve on both the Superior Court and the Court of Appeals.

His influence persists as one of the authors of an authoritative, multi-volume text. But he did not welcome his assignment to family court as the most junior man on the San Francisco juridical totem pole. He had been a construction lawyer when appointed to the court.

Construction law requires: mastery of a specific and highly-detailed body of law; knowledge of complex details of complex construction practices; and the ability to make a coherent story out of the thousands of documents generated by the project in litigation.

This knowledge and specialized skill set had no application to cases he encountered in family court. He was so appalled by the messiness of the cases he encountered that he was inspired to write articles with titles like, No Justice in Family Court (California Lawyer November 1994) and Child custody – A legal problem? (California State Bar Journal May/June 1979).

A lifelong interest in the human condition — combined with a curiosity about the effect of her personal exercise of official power on the people in her courtroom — will provide the motivation and energy to do the hard work for which sincere words of appreciation might come at intervals of weeks or months.

In the next column, I’ll describe how a small fraction of the divorcing population takes up a large majority of the court’s time and resources. It’s a small number of cases that wrongly gives divorce a bad name.

— 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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