Assessing Rule 16. 215 Years and CountingâPart 2, 0920 COBJ, Vol. 49, No. 8 Pg. 24
| Author | DAVID M. JOHNSON, J. |
| Position | Vol. 49, 8 [Page 24] |
August, 2020
FAMILY LAW
DAVID M. JOHNSON, J.
CRCP 16.2 was adopted to facilitate case management and discovery in family law cases. Part 1 of this article reviewed the rule’s genesis and case law interpreting it. This Part 2 looks at an informal survey of domestic relations judges and attorneys to examine the rule’s effect on family law practice today.
CRCP 16.2 became effective in January 2005. It was created to provide a uniform procedure for resolving all issues in domestic relations cases and thus reduce the negative impact of adversarial litigation wherever possible. To achieve its goal, the rule contemplates management and facilitation of cases by trial courts, to allow disclosure requirements, discovery, and hearings to be tailored to the needs of each case. The rule aims to provide parties a just, timely, and cost-effective process.
Part 1 of this article reviewed the genesis and history of Rule 16.2 and the case law interpreting it over the past 15 years.1 This Part 2 reports on an informal survey the author conducted among domestic relations judges and lawyers.2 The survey asked a series of questions about the rule and how it was being implemented. The answers are reported here anonymously.
Rule 16.2 in the Real World
Te author conducted a small and unscientific survey of family law attorneys and family court judicial officers across the state from large, medium, and small judicial districts. The goal was to have the rule’s stakeholders share their experiences with the rule to assess whether Rule 16.2 is serving its purposes.
Te survey questions and a summary of the responses follows.
1. Overall, do you find that the rule is meeting its goals?
Judges
■ Overall, the rule is meeting its goal of case management, but it’s hard to say if it is reducing conflict.
■ The rule is partially meeting its goals. Tat is because compliance is partial. The proliferation of cases without attorneys has an impact.
■ The timeliness goal is difficult because court dockets are so congested. Not sure what we can do about that. The lawyers cannot control that. Requests for a continuance often are made because a pro se party hires counsel at the last minute.
■ Reducing the negative impact of litigation is a huge goal. Most of the parties who come to my courtroom would be better served if they never came to the courthouse. If they had access to a person with legal training and training in change management counseling, they could get help in finding a more productive solution at a fraction of the cost.
■ The rule is substantially meeting its goals compared to the free-for-all style of case management we used to have with each judge having his or her own case processing plan.
■ I have found that discovery disputes are way down from the old days.
■ There is a significant difference in compliance between attorneys and pro se parties.
■ The work of the family court facilitators (FCFs) at the initial status conference (ISC) greatly cuts down on litigation. Diligent attorneys follow the rule. Less diligent attorneys do not. Most pro se parties do not follow the rule.
■ Pro se parties have no understanding of the rule or even its existence.
■ Pro se parties are lost.
Attorneys
■ I do not think the rule is meeting its goals in [this large urban district]. The judges simply do not have the time or resources to tailor the needs of each case. New judges unfamiliar with domestic relations do not receive adequate training in domestic cases. Experienced and seasoned domestic relations judges have the wisdom to see through smoke screens, and they are invaluable. A dedicated family court in large districts is the solution.
■ It is for the attorneys who read the rule. Some lawyers believe if there is a neutral expert, they simply have to provide information to the expert and not comply with the rule’s disclosures. Tat has resulted in last minute messes.
■ Overall, I think it’s meeting its goals very well.
2. Judges: What do you do to actively manage and facilitate the domestic relations cases you handle?
■ Adding a pretrial conference to my docket has done wonders for me and the parties in my courtroom. A key is giving parties a deadline to work against and impose consequences if the deadline is not met.
■ A month before the final hearing I have an informal status conference to get a feel for final time requirements and to address any evidentiary issues. I have a discovery protocol that does away with written motions.
■ If there are disputes, I schedule in-person or telephone conferences.
■ I set a pretrial readiness conference a month or so before the hearing. We identify issues far enough in advance to be able to resolve them and so there are no surprises. You would be surprised how often this simple exercise of articulating issues and the parties’ positions on them resolves many issues and, sometimes, entire cases.
■ I hold an initial case management conference in all cases at which time I set final orders. I ask the attorneys to focus on any anticipated discovery and legal issues.
■ I will meet with the attorneys if necessary to regulate discovery or even to discuss the merits of the case, if they request it.
■ Setting aside time for pretrial conferences is hard, but I do it because they are helpful. I require mediation before the pretrial and encourage additional mediation if the parties agree it might help. I require the parties to have mediation scheduled before my division will set the pretrial and final orders.
■ When a case is set for final orders, I send out a Case Management Order with deadlines that lets the parties know what is expected of them. When one side files a motion to compel I don’t wait for a response, but I set it for a status conference so the issue can be resolved quickly.
■ I am not as active in case management as some judges are. This is simply my style. I do not feel it is my case to litigate. If I tried to keep track of who filed a Joint Trial Management Certificate (JTMC) on time I would have to hire another clerk full time and they still would not do it. This is a hill I have declined to die on.
■ I set quick deadlines for Parental Responsibilities Evaluation (PRE), Child and Family Investigator (CFI), and Child’s Legal Representative (CLR) motions. I require a motion for a supplemental PRE to be fled within seven days of mailing of the first report to avoid last minute continuances. A firm trial date requires parties to deal with the issues and focus.
■ I don’t do pretrial conferences. Discovery has rarely come up as an issue since I have been on the domestic relations bench.
3. Attorneys: Do judges engage in active case management?
■ It’s a mixed bag. There is no uniformity in the application of the rule due to differences in experience and temperament on the bench. Some judges simply hate domestic relations.
■ Much better than a few years ago. Most domestic relations judges now set a pretrial conference about a month out and that helps settle discovery disputes. Dealing with discovery issues in a phone call with the court is much better than fling, for example, motions to compel.
■ Judges who set a pretrial conference several weeks before final orders seem to have a much better handle on the cases, and these allow for advance problem solving as to discovery issues, witness issues, and evidentiary issues. Most attorneys find the pretrial conferences to be very helpful.
4. How do you grade the majority of attorneys who regularly practice family law for following the rule to achieve its goals: A=outstanding; B=good; C=average, no complaints; D=poor; F=ignores the rule and its goals. Judges
■ This is a hard one. It is so attorney specific and rule specific. I would say B- to a B. Most attorneys file the sworn financial statements but do not update them, or they update them on the date of the hearing. I routinely see motions to compel two weeks before a hearing when the case has been pending for months.
■ I would say a B. The biggest problem is filing the JTMC on time, and timely notice of witnesses and exhibits. I wish attorneys would put more legal authority in the JTMC to support their positions.
■ The attorneys I see do a good to average job complying, B- to C+. Big dollar divorces tend to result in a lot of careful disclosures when someone has hired a good attorney.
■ I would rate most at between good and outstanding. I really do believe most attorneys have an appreciation of the rule’s goals and the benefits it provides without specific requests for discovery.
■ B+, maybe even an A-. Judges like to complain about lawyers, particularly in domestic relations. However, I’ve had overall good experiences.
■ I have attorneys in each category. I understand that sometimes the problem is that the client is not cooperating.
Attorneys
■ I think most attorneys try to comply, but updates are rare and you have to chase down current information before mediation or trial.
■ I would give a B to most attorneys. Pro se parties are a big problem. I don’t believe judges are strict enough with enforcing the rule with pro se parties.
5. How do you grade the majority of attorneys who regularly practice family law for their use of the Joint Trial Management Certificate to problem solve and narrow the issues? Same scale as question 4. Judges
■ B. The JTMC helps focus the court and the parties on the true issues in dispute. For me, what is most helpful is a description of the disputed issue, a few citations to the controlling law, and a brief statement of facts supporting the position...
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