Saturday, April 21 , 2018, 12:33 am | Fair 55º


Brian Burke: California Rule of Court 5.83 – Unintended Consequences of a Bad Law

At the beginning of this year I received an email from a local therapist that began:

“I am a local therapist and I've had a recent increase in the number of patients seeking treatment during and after family court involvement. The entire process is thoroughly traumatizing for my patients.

“Not only am I seeing the expected psychological reactions from the dissolution of a family/marriage, but I'm also seeing what looks like PTSD.

“These patients report feeling victimized — namely by the process of divorce, mediation and custody itself. Many report feeling victimized by their own lawyers.”

I was asked if I knew why this was happening. I believe I do.

Until late 2016, our court allowed couples that had filed for divorce to set the pace for their legal process so long as they were in agreement. If neither party asked for the intervention of the court, there was none and the case could linger indefinitely.

If one party requested the attention of a judge, the family law calendar was current and the request would be promptly accommodated.

When the couple reached an agreement, the necessary court forms were completed and submitted to the Clerk’s Office.

They were checked, copied, stamped and eventually given to a judge whose signature would transform the settlement of the parties into a judgment of the court. The case was then complete.

In all but 12 percent of the cases filed, judicial involvement was limited to the time it took a judge to sign one form. It was unnecessary for the parties or the lawyers to ever appear in a courtroom.

In 2010 the Legislature added Sections 2450 and 2451 to the Family Code, which delegated to the Judicial Council responsibility for creating “family centered case resolution as a tool to allow the courts to better assist families.”

The legislation included some specific provisions that “family centered case resolution” should include so the Judicial Council would get the gist of what the legislation sought to accomplish.

The sections delegating this authority to the Judicial Council say nothing about the imposition of goals to limit the amount of time divorce cases remain in the system.

The imposition of goals for completing a specific percentage of cases within a given number of months has worked well to help expedite civil litigation.

However, for more than 20 years, family law cases were excluded because it was recognized that cases involving families were delicate. Adverse consequences could occur if the parties were deprived of the ability to control the timing of their own legal process.

Recall the conversation between James Boswell and Samuel Johnson described in Column #162.

Boswell feared if he attempted to please his father by entering the practice of law, he would be unable to compete with the plodding blockheads who were attracted to the profession.

In 2012, plodding blockheads brought to life Sections 2450 and 2451 in California Rule of Court 5.83, which imposes the following goals on all of the state’s family courts:

    •    At least 20 percent of Petitions for Dissolution are to be disposed of within 6 months of the date the Petition is filed.
    •    At least 75 percent of Petitions for Dissolution are to be disposed of within 12 months of the date the Petition is filed.
    •    At least 90 percent of Petitions for Dissolution are to be disposed of within 18 months of the date the Petition is filed.

In an attempt to meet these goals, our court has begun the practice of directing the parties to appear for a Case Management Conference (CMC) shortly after the petition is filed.

How the conference is handled depends on the judge, but the mischief caused by the mandatory CMC starts in the Clerk’s Office.

Imagine a couple struggling through a divorce:

What do we do to protect our children? How are we going to survive with the expense of two households instead of one? Where are we going to find a second household? What are we going to do about Thanksgiving? How do we deal with his parents? What about Easter? John is not doing well in school, what about that?

The wife thinks the husband is going crazy, what can she do? Husband admits that he’s feeling crazy about the prospect of paying his wife half the value of their business and still providing the money to support everyone in the family.

This couple is skeptical about the ability of lawyers to help them solve their problems. The couple does not use these terms, but they see their divorce as an iterative process.

Each conversation about how they will reorganize the family and the way it works is another iteration to which incremental changes have been made.

Then the notice comes from the court directing them to appear before a specific judge on a specific date at a specific time for a Case Management Conference.

Lawyers and judges think of our courthouse as a place to work. Most of the community thinks of it as a place to take friends from out-of-town, as a venue for Friday night summer movies and as the site of Fiesta events, until they are ordered to appear in a courtroom to answer to a judge who may have imposed the death penalty in other cases.

Going to the Superior Court on your own case should provoke anxiety; you don’t know what’s going to happen. When people are compelled to appear in court, many, if not most, will think it prudent to engage the assistance and protection of a lawyer.

That’s what we’re for.

If you meet with a lawyer to request he appear in court for you or with you, it is not unreasonable for him to want to know as much as he can about the case.

He needs to be prepared for the appearance and know what he’s getting into if a friendly divorce turns ugly. When a lawyer becomes your attorney of record, he accepts responsibility for taking and holding on to your legal lifeline.

For the inquiry, advice and information given to you and for the acceptance of continuing responsibility, the attorney is entitled to compensation. There must be a fee agreement between you and him.

At least 99 percent of the fee agreements in divorce cases call for payments based on the amount of time the lawyer (and his assistants) spend on the case multiplied by a specified hourly rate.

The more time spent, the more you pay, which creates a potential conflict of economic interests between you and your lawyer that can be greater than the conflict of interests between you and your spouse.

For South County Santa Barbara, we happen to know that in the absence of judicial interference, the average interval between separation and entry of Judgment is 29.9 months.

When categorized according to the duration of the marriage, the average and median intervals for all categories were between 18 and 36 months. This is the window during which cases are ripe for settlement.

In other words, the Judicial Council prescription attempts to force the resolution of 90 percent of cases filed before they are ripe for settlement. When an attempt is made to resolve a case before its time, the result is conflict.

More conflict in a case means lawyers have to spend more time; the more time they spend, the more they get paid.

You see the problem.

Some judges see Rule 5.83 as an opportunity to assert some control over the mass of family law cases assigned to their departments.

Other judges will be frustrated by the fact that couples, with or without their lawyers, are being compelled to appear in their court only because a group of plodding blockheads thought it was a good idea.

It is actually more likely to cause harm than it is to be of any benefit whatsoever.

In the next column I’ll suggest what can be done to protect couples from the pernicious effects of California Rule of Court 5.83.

— 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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