As a litigant, when you walk into Family Court, the official story is that you are walking into a system that is operating according to what is known as the Adversarial System. I don't think it is necessarily the first thing most litigants think about, but they should think about it, because the nature of the system has everything to do with the outcome of the cases they bring to Family Court.
According to Wikipedia, the Adversarial System is a legal system where two advocates, each representing either the Plaintiff or the Defendant, faceoff and represent their parties' position before an impartial judge or jury and the intention is to determine the truth of the case.
The Adversarial Process has its origins in the medieval mode of trial by combat where certain litigants, particularly women, were allowed a champion to represent them. Think of Heath Ledger in "A Knight's Tale"!
The idea behind the Adversarial Process is that two equally skilled advocates who argue their cases before an impartial judge can arrive at the truth. Fundamental to this process is the concept of the examination and cross examination of witnesses and the presentation of reliable and relevant evidence, thus the development of the rules of evidence. The attorneys are there to argue the case, determine which evidence and witnesses should be presented to the judge and/or jury, and the judge plays the role of neutral observor who makes sure that both sides adhere to proper Court procedures. In the end, the judge could be the one to determine what is the verdict or else it could be a jury.
The Adversarial System presents a contrast to the Inquisitorial System in which a judge or a group of judges work together to investigate a case.
In the Adversarial System, once a Defendant admits to a crime, the process is over, since you know who is guilty. This means that the Adversarial System allows for opportunities for negotiations, agreements, and plea bargaining, and often many cases don't even end up going to trial.
In contrast, when it comes to the Inquisitorial System, the fact that a Defendant has admitted to a crime means nothing and the proceedings will still continue, so there is little if any room for the Parties to work things out independent of a trial under that system.
So, do we really have an Adversarial System in the Family Court System in Connecticut? That's the big question, because a lot of us are saying that it appears to us as though Attorneys for both sides get together in a back room, make up their minds regarding how the divorce is going to go, and then play the rest of it all off as show. And while they are at it, they cash in on as much money as they can get from the litigants.
What others are experiencing is a situation where they can't get an attorney to represent their position, and are left in the stigmatizing and compromised situation of having to represent themselves. Some of these people have interviewed dozens of attorneys, but have been unable to get an attorney to represent them. And this may not be simply a matter of lack of agreement with what a litigant is asking them to do, but also a fear of ostracism within the profession. No attorney wants to take on a case that their peers have decided is not worthy of representation, a decision that is often based upon discriminatory attitudes regarding race, gender, or disability as well as other misplaced social and cultural values. Then, to get you to shut up and go away, these lawyers will lie to you and tell you that you have no case based upon the law. when in fact you do. So, nothing adversarial going on here.
This is a denial of citizens' access to justice by the denial of any access to attorney representation.
Granting the whole thing isn't a sham, which I suspect it is, in my experience of participating in Family Court Trials, there appears to be a mixture of both The Adversarial System and the Inquisitorial System going on in Family Court, particularly during the hearings on issues brought before the Short Calendar which usually take around 15 to 20 minutes. In these hearings, the Trial Court Judge isn't simply a neutral, impartial factfinder, sitting back sagely while the attorneys present their cases, and only commenting to make a determination. On the contrary, these judges play a significant role in asking questions, examining and cross examining litigants and witnesses in ways that ordinarily only an attorney would do, as well as explaining Court Procedures to litigants who are often self represented. Judges will sometimes express opinions or draw conclusions about the evidence presented to the Court, a role which would ordinarily be left to expert witnesses, were they there to provide testimony.
This can lead judges into a situation where they make memorable remarks, some of them sharply derogatory of litigants, which can lead to lasting bitterness and anger. It can also lead judges to intrude into the process in a way that calls into question their neutrality and their willingness to adhere to the law. In these circumstances, in family court, the so called adversarial process, if there is one, breaks down entirely.
So does it make sense to have the Adversarial System or some modified version of the Adversarial System in Family Court? Some people believe that this system is the only way to ferret out the truth and to hold the Court to a high standard of accountability when it comes to applying the law to the evidence. However, as this discussion shows, in family court, this doesn't seem to be working.
What is more, there are problems unique to family court which make the adversarial system detrimental for the litigants. Specifically, this is a system in which you have only two Parties, the Plaintiff and the Defendant, and only one can be the Victor which pretty much leaves the other as the Loser. If the children are sucked into the proceedings in a dispute over custody, they often end up as pawns in the battle. Even when everything is done to protect them from the harm that can result from a custody battle, they can end up injured simply because their relationship with either one parent or the other is under dispute.
Futhermore, in Family Court such considerable sums of money are often spent on legal fees, much of it out of college funds for the children or from financial resources intended the secure the family's future, that the financial damage occurring as the result of a divorce action can end up lasting for years, and the litigants may never even be able to recover.
In situations like this, and there are many of them, no matter that the Plaintiff or the Defendant may end up on paper as the Victor, ultimately both sides lose.
Not only that, one of the unique aspects of divorce, as opposed to criminal or civil law, is that after the trial or the settlement of the case, a good majority of the time both sides can't simply just walk off and never see each other again. Whether they won or lost, they will be required to work together for the best interests of their children for years subsequent to their Court Case. They will have to consult regarding the childrens' academic achievements, regarding summer and holiday vacations, regarding medical and religious decisions, and eventually participate in weddings and baptisms of grandchildren.
If a legal divorce proceeding is all about how to destroy the other side and grind the other side into smithereens, how can the litigants then be expected to work together jointly on behalf of their children after all that damage has been done? And if they do so much damage that the other side is too crippled to proceed further in living a productive life, what is the consequence of that other than harm and destruction to the children of the marriage?
I don't have any quick solutions to this problem. However, I do think that vast numbers of litigants have already recognized this problem and are revolutionizing the Family Court System by choosing to represent themselves. At this point, up to 80% of litigants in Family Court are self represented. This is an extraordinary vote of no confidence in the attorneys here in the field of family law in the State of Connecticut.
Finally, what is my solution? I'd like to propose that we ask our representatives to pass legislation that would limit the amount of money that attorneys, GALs, and mental health professionals are able to earn in any divorce. Once it is no longer possible to profiteer on the suffering brought on by divorce, and once there is no longer a benefit to be had by inciting litigants into lengthy and expensive legal proceedings, then we will see the development of more sensible and reasonable approaches to divorce.
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