Saturday, June 23 , 2018, 1:37 pm | Overcast with Haze 67º

 
 
 
 

Brian Burke: (Column 178) Psychological Healing and Growth or War by Paper?

Who will write the definitions: Mental health professionals or lawyers and judges?

This series of articles builds to conflict by those who would seek to realize the promise of no-fault divorce to provide support for marriages in jeopardy and to promote amicable settlements in those instances in which the marriage could not be saved.

The dramatic change in the fundamental deal between husbands and wives was further changed when California became the first state to recognize the notion of joint custody of children and the institution of mandatory mediation.

I’ve used the activity of the Association of Family and Conciliation Courts (AFCC) as the leading edge for those who see divorce as a psychological process, with the legal process secondary at best.

The ultimate expression of this view would establish psychologists, social workers, and marriage and family therapists as first line providers of support for the divorcing population.

If there has been an increase in the number of licensed mental health workers in California that exceeds the growth of the population, this could be a contributing factor.

In contrast to the AFCC, I’ve selected Steve Adams (the founder of California Family Law Reports and the five-volume California Family Law Practice) as the force at the leading edge of those who would breathe life back into the notion that divorce is essentially an adversarial process that should be treated like any other kind of litigation.

Adams assembled the intellectual paraphernalia to support this view. Recall the 704 law books that were required as part of a working family law library in 1970? Most of the law in those books was superseded by the Family Law Act of 1970.

However, the body of family law increased rapidly during the next 10 years, at which time Adams started to publish his binder of notes and teach his annual refresher classes.

By 2010, Adams had put his five-volume outline on a disk, together with the full text of every case and statute he cited. Thus, on a single disk, any lawyer had a complete family law library that was second-to-none. It wasn’t necessary to own a single real book.

Plus, the digital library was not only as complete as one made of paper, it was faster and easier to use. Lawyers wanted to use these tools because they had paid for them; it is what they had been taught to do; it was sort of fun; and it was a way to earn a living.

The role of the lawyer was to answer technical questions and document settlements reached with the help of mental health workers. Divorce work would be able to support a very small fraction of the state’s current population of divorce lawyers.

The more contentious the style of practice, the more money a divorce lawyer generated. If most divorcing couples were seeing mental health professionals instead of lawyers, most of the fees paid would come from insurance companies.

Insurance compensation paid by health insurance companies to the people on their panels is scandalously low.

Established practitioners who accept payment from insurance companies have full schedules and marginal income. They have neither the need for nor the benefit from an influx of insured, divorcing clients. The opposite is true for lawyers.

In my mind, the Adams approach to divorce fused with the AFCC approach in the person of Donald King.

King was an established and well-regarded construction lawyer who practiced alone in San Francisco. When he was appointed to the Superior Court, he was assigned to do the court’s most unpopular work: divorce court.

King accepted the assignment and was astonished and appalled by what he found. Waste, disorganization, an absence of logic, rancor and chaos. As a sitting judge, King wrote an article for the State Bar Journal with the title: There is no justice in family court.

One of the skills a construction lawyer acquires is the ability to gather massive amounts of information about a project that has gone wrong and assemble it in a way that makes sense to a “trier of fact,” often a jury.

Because of their complexity, construction cases seem to have a drive toward increasing complication, which must be checked or the case will go on forever.

Without any formal studies and without the approval from a higher authority, King applied some of the procedural tricks and principles he learned as a construction lawyer to the family law docket for which he was responsible.

At one point, he reported that he began with a huge number of contested hearings during a given period but, once his program reached full strength, the number of contested hearings dropped to zero.

It was like Semmelweis announcing that if doctors washed their hands in carbolic acid before conducting pelvic examinations, women would stop dying of puerperal fever.

The failure of Semmelweis to convince his colleagues is a complicated story. I’ve read what King has written and I’ve heard him speak several times; plus, he graciously consented to meet with me where he answered every question I asked him.

As far as I can tell, he eliminated contested hearings for the cases on his docket by meeting with the clients in conflict before hearing the contested case. He also used his personal power of persuasion to reverse the expectations of the lawyers and their clients from:

“We are going to fight and win,” to “If you fight, everyone loses; if you reach settlement, everyone wins.”

Because of his speaking and writing, King became a spokesperson for the AFCC point of view. But he also promoted the agenda of Steve Adams because he was living proof that divorce conflict can be effectively resolved in a courtroom with lawyers and a judge.

The main problem with King’s contribution was that it wasn’t replicable by other judges.

Physically, King is a huge man. He’s not thick, but he’s basketball player tall with gigantic hands. Some big men are so confident — perhaps because of their size — that it is catching for the people they deal with.

From their life experience, they have a positive view of the world and they are very good at instilling that belief, however briefly, with the people they do business with who find themselves wanting to believe.

That’s what King could do. I had no cases with him but when I heard him speak it was always uplifting.

King could teach a year-long course on “How to be like me,” and all his students would fail unless they were blessed at birth with King’s qualities and therefore didn’t need the instruction.

King was such a good Superior Court judge that he was elevated to the Court of Appeal where he began to write opinions for Steve Adams to brief. His opinions were usually well informed, but they weren’t as powerful as what he wrote when he was a trial court judge.

When he retired from the bench, King became a partner in the company that produced the textbooks in competition with Adams. Adams sold out to a big law book company, which decided to stop its support of the digital version of California Family Law practice.

The successor to Adams still teaches the annual two-day update, which is attended by a majority of the 50-plus divorce lawyers practicing in South County.

Since there are never more than 10 important cases or statutory changes in a year, I’m mystified by what they can find to talk about for two days.

Divorce law has become a multibillion-dollar business. The Rules of Professional Conduct that apply to divorce lawyers are the same that apply to other lawyers. The American Bar Association’s Model Rules insist that lawyers must provide clients with zealous representation.

Given the origin of the world zealous, divorce lawyers who follow the mandate of the ABA can do nothing but produce grotesque results and high fees. In fact, the rules of professional conduct encourage lawyers to manage their cases in a way that will produce outcomes that are the opposite of what was anticipated by the proponents of no-fault divorce.

The AFCC made the necessary transition whereby its creative members and charismatic leaders have been replaced with solid men and women who have institutionalized the progress made in the 1980s and ’90s.

The number of people who live in Santa Barbara and belong to the AFCC is, at this writing: one.

These historic columns have given me many ideas for future subjects (such as the dramatic change in ideas about child custody, a look at what the law used to be, the theoretical basis for the former view, and questions about whether current law and the assumptions on which it is based are any better than the old).

Although The Law will remain the subject, I’m moving away from divorce in the next four columns. I’m going share a story I’ve written that would otherwise want for an audience.

It’s called The Traffic Commissioner, and it’s about a young woman who happens to be a lawyer, a very good lawyer, to whom life has always been very good. She thinks people and events have been good to her because she’s good to others.

She says she was raised by a golden retriever and, therefore, doesn’t have a mean bone in her body. The story is about how being good and playing it safe might not always work out as well as some think it should.

I’ve enjoyed writing and rewriting the thing over a period of years and it’s time to call it done.

— Brian 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 also is 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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