Thursday, April 29, 2010

One Party Self-Represented In More Than 75 Percent of Family Law Cases

Key Statistic Omitted from Elkins Task Force Final Report

Chief Trial Counsel Jayne Kim State Bar of California Office of the Chief Trial Counsel, Joseph Robert Carlucci Deputy Chief Trial Counsel, Patsy J. Cobb Deputy Chief Trial Counsel, Michael John Glass Deputy Chief Trial Counsel, Alan Bernard Gordon Assistant Chief Trial Counsel, Melanie J. Lawrence Assistant Chief Trial Counsel, Kristen Lyn Ritsema Senior Trial Counsel, Kimberly Gen Kasreliovich Deputy Trial Counsel, California State Bar,
Task Force Whitewashes Critical Statistic
In many California communities, more than 75 percent of family court cases have at least one self-represented party, according to the Elkins Task Force Final Report and Recommendations [pdf], released this month by the Judicial Council.

"Given the complexity of family law issues, why do people represent themselves? All too often they have no choice...What is at stake in the family court process are long lasting decisions that affect people's most fundamental and important aspects of their lives."

What the report conveniently doesn't mention, and apparently whitewashes is the number of family court cases in which one side has an attorney and the other doesn't. Based on our research and anecdotal evidence, that is the critical statistic.

The Critical Statistic

Just last year the California Legislature acknowledged that in those cases, the self-represented party is often raped and pillaged by the opposing attorney. From AB 590, signed into law on October 11, 2009:
"Many judicial leaders acknowledge that the disparity in outcomes is so great that indigent parties who lack representation regularly lose cases that they would win if they had counsel. A growing body of empirical research confirms the widespread perception that parties who attempt to represent themselves are likely to lose, regardless of the merits of their case, particularly when the opposing party has a lawyer, while parties represented by counsel are far more likely to prevail."

In civil court, virtually all cases boil down to a monetary settlement or judgment. But as the Elkins Report detailed, family court issues are different: "Family law touches the most central aspects of Californian's lives: where, when, and how often a parent will see his or her child; their personal safety; how much child and spousal support one person will receive and the other will pay; and how the assets that the family has accumulated will be divided between the separating parties. These decisions can have dramatic and long lasting impact on people's lives." In AB 590, the legislature called these "critical issues affecting basic human needs."

The Elephant in the Room

The elephant in the room is that, in family court cases where only one side has an attorney, the outcome of these critical issues is - in virtually every case - substantially more beneficial to the party with an attorney. After 15 months of information gathering, public hearings in Los Angeles and San Francisco, recommendations at meetings with state and local bar associations, family dispute resolution professionals, family law facilitators, child support commissioners and other family law judicial officers, and the receipt of nearly 300 written comments, the 93-page Elkins Task Force Final Report refuses to acknowledge this critical fact.   

AB 590 - Sargent Shriver Civil Counsel Act

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