September 2009 Archives

September 27, 2009

Settlement Conferences in Divorce, Vista Court....

There has been a change in the Settlement Conference process in the North County Branch of the San Diego Superior Court, in an effort to move cases along while dealing with a shortage of court rooms and volunteers to help settle cases. In Vista, all cases have been subject to a mandatory settlement conference for more than a decade, and the process very successfully resolved almost all of the cases without trial. As discussed below, that process has been falling apart.

Our settlement conferences at the court have been set on Thursdays, a day when the judges would set longer cases and trials to be heard.

The existing process had each of our 5 Family Law judges assign his or her cases to a Thursday calendar, in rotation among them - all of a judge's cases would be set for the same day, at 6 week intervals. The problem is that the first available date might have been 3 or 4 months out - if one lawyer was unavailable, the next available date for your judge's cases fell 5 weeks from that date and your first possible settlement conference would be 4 or 5 months away. Invariably, one of the lawyers would have a conflict with that date as well, and the 5th week after that put you 5 or 6 months out, and so forth. Occasionally, I lawyer didn't want the case moving closer to trial, and may have made up an unmovable conflict so that the date got set farther and farther out - and occasionally the judge would be on vacation and unavailable for the normal rotation.

Under the new process, to avoid such delays, each judge will set one case each Thursday morning and afternoon - for some judges, the problem is that there are many more cases being set for trial, so that judge's cases may be set many more months later than another judge simply because all the slots will be filled more quickly. The new process takes effect in January - we'll see if it works better than the existing system, or even better than no mechanical system to control the calendar.

Historically, the Vista Branch of the court has had many volunteers acting as pro tem [temporary] judges, assisting in settling cases. [We used to also sit as judges to help pick up the slack, but a lot of judges thought it would be better to have more judges appointed and more assigned to Family Law, than allow lawyers to volunteer their time to fill in.] That process brought out most Certified Family Law Specialists to volunteer our time - that came to a screeching halt when the California Supreme Court decided we needed regular education, fingerprinting, a background check, and a bunch of confidential information floating around the clerk's office as a condition for providing free services to the court and the public. Until then, the volunteers had to be picked for the panel by the judges, but that wasn't good enough [maybe other counties were more careless].

Many of us resented the fact that we had been acting as pro tem judges for 20 to 30 years, with virtually no objections or problems; more training in how to act like a judge [and the training is really boring, especially after the first time since it must be repeated every few years - 8 hours trapped in a room listening to a judge (who may know less about a courtroom, and certainly knows less about family law) tell us how to be polite and avoid conflicts of interest.

The result? The system has fallen apart - most of the best lawyers decided they could charge for our skills as "private judges", instead of having to volunteer at no pay, then be required to go to additional seminars. We usually charge less than our normal rates, and the lawyers who know us get to pick the right person to help settle our cases rather than taking pot luck at the court house, depending on who volunteer that day. You can imagine how successful an inexperienced lawyer is at persuading a long time specialist.

Essentially, as a private judge we are getting paid for serving as a mediator in cases where both sides have competent counsel, hopefully have legitimate disputes, and the issues are interesting. This is usually more rewarding for us, financially and intellectually, than going to the courthouse and dealing with two unprepared litigants who often just can't get their emotions under control and have no sense of appreciation for the volunteer's time - they don't care that we help them divide the towels and silverware that aren't worth the value of our time.

I used to volunteer regularly - I've been doing it more than 30 years. I am not currently on the panel, although I regularly volunteer to help lawyers settle issues when I am around the courthouse and they need a 3rd opinion [as do most specialists].

We are waiting to see if the new system helps at all.