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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #31  
Old 07-21-2019, 07:43 PM
Kinso Kinso is offline
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There is no financial incentive for judges, court staff, lawyers, or paralegals to settle a case in a timely manner. We need to either create an incentive or de-incentive the current system.
Judges and court staff make a salary, so they are not incentivized by dragging matters out. Settling the matter of the day allows everyone to go home (for that day), so that's nice for them.

The criticism that lawyers are financially motivated to drag things out due to their hourly retainers is commonly stated, button my experience rarely plays out this way (although some lawyers are certainly exceptions to the rule).

There is so much demand for family lawyers, I (as a practicing family lawyer) do not need to drags things out. I turn away business as there is only so many hours in the day before I'd rather do other things like eat, sleep, spend time with my family, travel...etc.

It's also a difficult field to supervised associates in... one or two sure... but after a certain point you can't properly manage them. Unlike corporate law, it's not possible for 100 lawyers to work on a single file. Plus, given how easy it is to find clients, high quality associates do not generally need to stay in firms past a few years.

The lack of financial incentive to drag things out is separate from the immorality of course... but that should be obvious.

This isn't to say I haven't seen some lawyers do a disporportionate amount of work on a file...making me wonder if it's all about the money for them... but it's very unusual.

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My suggestions to the review are as follows:

1. Allow clients to sign affidavits digitally (saves people from having to drive across to the city to my office).

2. Allow photocopies to be submitted to the court (similar to above).

3. Hear Case Conferences prior to filing Applications/Answers. Saves money in drafting pleadings, and a Case Conference is about settlement. I wonder how many settlements have been made more difficult because reasonable people are told by lawyers (who are following best practices in an adversarial system) to put their most extreme position in their pleadings. Applications/Answers can be an unnecessary punch to the gut when reasonable heads might otherwise prevail.

4. Explore an Administrative Tribunal Model. Possibly have a MSW, Financial Expert and Lawyer sit and can issue interim Orders (disclosure, interim custody, interim access, interim support...etc) together. Keep the process informal and escalate to court only if necessary.

5. Digitization of Court Records. This should have been done over 10 years ago.
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  #32  
Old 07-21-2019, 09:09 PM
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arabian arabian is offline
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Thank you for confirming what I was told many years ago by my lawyer:

"...settlements have been made more difficult because reasonable people are told by lawyers (who are following best practices in an adversarial system) to put their most extreme position in their pleadings. Applications/Answers can be an unnecessary punch to the gut when reasonable heads might otherwise prevail...."
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  #33  
Old 07-22-2019, 06:07 AM
Mom 2 Two Mom 2 Two is offline
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Quote:
Originally Posted by arabian View Post
Thank you for confirming what I was told many years ago by my lawyer:

"...settlements have been made more difficult because reasonable people are told by lawyers (who are following best practices in an adversarial system) to put their most extreme position in their pleadings. Applications/Answers can be an unnecessary punch to the gut when reasonable heads might otherwise prevail...."


Yes! Like my ex starting out asking for sole custody!! After 6 year status quo and no material change!! This was the punch to the gut! Now after 1.5 years he is back to joint and EOW. Maybe this could have been settled if a judge just enforced our agreement regarding my ex stopping paying all S7 previously agreed to.

I wonder how many people emailed this person with complaints and if anything will change. Not likely.


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  #34  
Old 07-22-2019, 11:54 AM
tilt tilt is offline
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Judges and court staff make a salary, so they are not incentivized by dragging matters out. Settling the matter of the day allows everyone to go home (for that day), so that's nice for them.

Exactly, they are paid the same regardless of settlement, adjournment, or a protracted hearing. Adjournments (which unnecessarily happen way too often IMHO) get them out the door the fastest. If their salary was dependent on metrics like cases resolved, a normal metric in many professions, then there would be an incentive to move things along. Judges and court staff aren’t the ones struggling without CS for years, or not seeing their kids for months; so getting the cases resolved within days is not considered urgent - when it should be.

The current system is done too much chronology ...”we see cases in order of appointment”, when there should be a triage system akin to emergency departments. “You need to see your kid - you go first, you need money for CS, you go next, this is your 14th motion for adjournment? We won’t hear you and the trial starts tomorrow”.
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  #35  
Old 07-22-2019, 12:04 PM
tilt tilt is offline
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I agree with Kinso’s other points. I had to attend a mandatory education workshop that was useless. It should have been a mandatory informal mediation meeting with a social worker and financial planner, and duty counsel. That way cases that involve the mentally ill who are also completely unreasonable can be identified early and put into a different case management system. The current system assumes both parties are sharing the same reality but with different viewpoints.
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  #36  
Old 07-22-2019, 05:58 PM
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I recall early on (in post-divorce litigation) of not know what a "case management judge" was. We went in front of at least 6 different judges, sometimes several times, before a judge seized our file. My lawyer (who was a tad green at the time) was very happy. I was too, until I checked the judge out. Judge was a newbie to family court; previously heard injury cases (and was despised by players in that court). He was an idiot. We went in front of him 3 TIMES before he actually read our file. I recall pleading with my lawyer to request another judge (he could have but lawyer was cognizant that he may have to face this lousy judge in future). Judge admitted each time that he was much too busy to read our file. These were at 6-month intervals. In the end it worked out because it was that judge who fumbled the ball a bit in my favor and his ramblings in his decision paved the way for me in future litigation. All in all it was a gross waste of time/money/resources. A real shit-show for a while there. My lawyer did, years later, admit that we should have changed judges.

I totally understand people's frustration with the waiting and waiting. Ugh.
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