Reprinted from Vol. 44 No. 4 in Honor of Professor J. Herbie DiFonzo. The Family Law Education Reform Project Final Report†
| Author | J. Herbie DiFonzo,Mary E. O'Connell |
| Date | 01 January 2018 |
| Published date | 01 January 2018 |
| DOI | http://doi.org/10.1111/fcre.12321 |
FAMILY COURT REVIEW, Vol. 44 No. 4, October 2006 524–570
© 2006 Association of Family and Conciliation Courts
Blackwell Publishing, Ltd.Oxford, UKFCREFamily Court Review1531-2445© Association of Family and Conciliation Courts, 2006October 2006444MiscellaneousO’Connell and Co-Reporters/XXXFAMILY COURT REVIEW
THE FAMILY LAW EDUCATION REFORM PROJECT FINAL
REPORT
Mary E. O’Connell
J. Herbie DiFonzo1
The Family Law Education Reform Project (the FLER Project) is co-sponsored by the Association of Family
and Conciliation Courts and the Center for Children, Families and the Law at Hofstra Law School. This
Final Report is based on a series of dialogues between family law academics and practitioners from many
disciplines, a FLER Project survey, and research conducted by law students at Hofstra University and Northeastern
University.2
Keywords: legal education; family law; FLER Project; interdisciplinary; alternative dispute resolution;
lawyering; skills; pro se
I. INTRODUCTION: WHY REFORM FAMILY LAW EDUCATION?
The last two decades have seen substantial—even dramatic—changes in family law,
most particularly in the ways in which family law is practiced. As this sea of change has
occurred, however, law school curricula and teaching have remained relatively static. The result,
predictably, is that lawyers entering family law practice regularly find themselves unpre-
pared for what they encounter. A substantial and growing gap between family law teaching
and family law practice undermines the best efforts of new family lawyers to assist parents and
children in separation, divorce, abuse and neglect, dependency, and delinquency actions.
Today’s family lawyers need a thorough understanding of many issues and practices that
traditional family law courses rarely touch upon. These include the appropriate—and
inappropriate—uses of dispute resolution processes, new case management techniques in
the family courts, the key roles played by professionals from other disciplines in the court
system, and current research on such issues as the effects of conflict and loss of parental
contact on children. Yet the materials from which most family law professors teach contain
nary a word on most of these topics or on the skills necessary for effective family law practice.
A. ENTER THE FLER PROJECT
The Family Law Education Reform Project (the FLER Project) was launched by a
group of professionals who share a common concern.3 In their regular (for some, daily)
interactions in the family court, they routinely observe lawyers who are woefully unpre-
pared to make positive contributions on behalf of their clients. While some novice attorneys
struggle valiantly and learn quickly, the quality of their initial preparation is, to use a term
that surfaced often in FLER Project discussions, dismal. The question this group asked is
“can we help the law schools to do this better?”
Correspondence: M.O’connell@neu.edu or lawjhd@hofstra.edu
†
SPECIAL REPRINT TRIBUTE TO J. HERBIE DIFONZO
REPRINTED FROM VOL. 44 NO. 4 IN HONOR OF PROFESSOR
J. HERBIE DIFONZO. THE FAMILY LAW EDUCATION
REFORM PROJECT FINAL REPORT
†
FAMILY COURT REVIEW, Vol. 56 No. 1, January 2018 18–55
V
C2018 Association of Family and Conciliation Courts
O’Connell and DiFonzo/FLER REPORT 525
Since the spring of 2004, scores of contributors from a range of disciplines have come together
in various FLER Project sessions to think collectively—and rigorously—about what a new family
lawyer should know, should be aware of, and should be competent to undertake.
4
What emerged
was a strongly shared sense that family law as it is presently taught in many American law
schools bears only an attenuated relation to the family law that affects real people, the courts,
and our larger society every day. To put it more bluntly: law schools are preparing students for
something generically called “family law,” but they are not (with a few notable exceptions)
preparing students to deal with family law as it is practiced beyond the law schools’ doors.
How might a family law curriculum prepare fledgling lawyers for the realities of
contemporary practice?
5
(1) It would teach law students that the family court of the early twenty-first century is
often an interdisciplinary enterprise, where psychologists, social workers, non-lawyer
mediators, and others may wield extraordinary power. At times, these professionals
may work as partners with the attorney, providing both help and insight in the resolution
of a family dispute. In other cases, the attorney’s role is to help the client navigate
the often bewildering world of mandatory mediation, mandatory divorce education,
court-appointed custody evaluation, parenting coordination, and more.
(2) It would emphasize the multiplicity of dispute resolution processes and treat
litigation as but one alternative, useful only in a small minority of cases. Students
would be introduced to mediation, mediation advocacy, collaborative law, cooperative
law, and advanced techniques in negotiation. The burdens and benefits of each of
these approaches would be evaluated, with the goal of enabling new lawyers to
assist their clients in making informed choices among them.
(3) It would continue to emphasize strong grounding in the law and analytic rigor, but would
add a focus on competence and skills, and teach budding lawyers to be reflective and
self-aware in the practice of law. Students would be exposed to the paradox that, in this
age of increasing legal specialization, a family law practice demands a quite broad-based
expertise. To represent clients adequately, family lawyers must be knowledgeable in such
fields as tax, contracts, ERISA, real estate, and health insurance continuation (COBRA),
as well as family systems theory, child psychology, and family violence. Practitioners also
need strong skills in interviewing, listening, and counseling emotionally troubled clients.
These goals are strongly consonant with views expressed in the American Law Institute’s
(ALI) Principles of the Law of Family Dissolution.
6
The ALI Principles note that “[t]he
primary challenge in shaping the law that governs allocation of responsibility for children
is to facilitate thoughtful planning by cooperative parents while minimizing harm to
children who are caught in a cycle of conflict.”
7
Among the ALI Principles’ stated goals are
“to focus greater attention during family breakdown on planning for the child’s needs; (2)
locate responsibility for the child in parents, and in courts only as the last resort; . . . (5)
encourage parents to anticipate future problems and disputes and to establish means of
resolving them short of reiteration in court; . . . (7) provide appropriate protection for victims
of domestic abuse after a family separation.”
8
These themes were raised and repeated in
numerous, thoughtful ways throughout the FLER Project’s working sessions.
B. HAVE WE ASSUMED THE CONCLUSION?
As we have prepared this Report, we have endeavored to avoid endorsing any
particular approach to resolving family disputes. The question is significant: by inviting
O’Connell and DiFonzo/FLER REPORT 19
526 FAMILY COURT REVIEW
custody evaluators, mediators, parent educators, and others to the table, did we begin our
task with the assumption that a model of family law that relies heavily on alternatives to
litigation, and is strongly influenced by psychological theories and mental health profes-
sionals, is not only relatively new, but also greatly improved? Clearly, many of the FLER
Project’s participants strongly endorse the view that custody evaluators, mediators, and
other professionals better the family law process for the men and women involved in family
disputes and for their children. We would argue, however, that one can find useful ideas in
this Report and its suggestions without concurring in that assertion. The Report is intended
for believer and agnostic alike.
Whatever one may think of contemporary family courts’ substantial reliance on psycho-
logical evaluations, social science research, and non-lawyer mediators, the reality is that this
mental health/alternative dispute resolution (ADR) orientation strongly influences many
courts and, at times, legislatures as well.
9
Whether this emphasis proves to be too much, too
little, or just enough is beyond the scope of this Report. The appropriate limits to the partnership
between law and the social sciences are similarly a question for future consideration. Rather
than endorsing any current or emerging model of family court administration or practice,
we hope that the FLER Project will help law professors to equip new lawyers to meet family
law where it is. Of course, our fondest hope is that the young lawyers we teach will not only
meet family law, but work to bring it to a better place.
None of the suggestions in this Report would displace the central emphasis on analytic
thinking that is a hallmark of all legal education. Students will and must continue to grapple
with complex constitutional doctrine and challenging statutory language, but as all law
professors know, those key tasks can be embedded in the course material in nearly endless
ways. It is also our perception that law professors already carry out this task of teaching,
modeling, and reinforcing strong analytic thinking, and they do it very well. The challenge
this Report poses is to take family law beyond the analytic—not to leave the analytic
behind—to pose additional and related problems arising from the reality of family law practice.
C. THE FLER REPORT AND THE FLER PROJECT
This Report is our effort, as the Project Reporters, to synthesize, order, and elaborate upon
the insights of the lawyers, judges, mediators, psychologists, social workers, court admin-
istrators, law professors, and others who endorsed the conclusions listed above. To that end,
we attempt to:
* Describe the divergence between family law in the classroom and family law in the
courtroom, lawyer’s office, conference room, and home;
* Outline and elaborate upon the areas that a family law curriculum should cover if its
goal is to prepare students who are well versed in the law, sensitive to legal context,
and competent to serve their clients in an ethical manner.
This Report, however, is only the beginning. The FLER Project’s long-term and more
ambitious goal is to create a set of interdisciplinary teaching modules. These modules
(which will specifically identify learning objectives and suggest teaching strategies) will
help law professors to integrate new topics, issues, and skills training into their family law
courses. When the modules are completed, law faculty will be able to adopt, or adapt, one
or more of them for use in their teaching, for their own information, or to suggest research
projects for students. Our hope is that these modules, by providing insights and knowledge
20 FAMILY COURT REVIEW
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