I have been involved in Family Law for over forty-one years. I have handled thousands of cases in all areas of the field and have appeared before the most competent – and incompetent – Judges in New Jersey. Unfortunately the proficiency of newly appointed Judges in Family Law has seriously declined over the years. While most Judges are intelligent professionals, many have no experience in addressing issues that arise in this area of practice. At present, families rarely receive their basic right to competent Judges when addressing the relief they need.
In Family Law – as well as other areas of law – walking into a Courthouse can be compared to walking into an Atlantic City casino. Success, legally or equitably, depends on the cards you are dealt, i.e. the Judges you appear before.
A few examples are in order:
- I was involved in a multi-million dollar Divorce case with so many complicated issues it could have been a question on a Bar Exam. Unfortunately, the case was assigned to a newly appointed Judge. On the first day of Trial, the Judge called my adversary and I into chambers for introduction purposes. To my shock, we were told the Judge had never handled a Divorce case as an attorney. The Judge was pleased to have two notable attorneys with years of experience and told us we would assist the Court in making decisions along the way, which would ultimately contribute to the Final Decision.
- In another complex Family Law case, I appeared before not one, but two newly appointed Judges over a two year period. My adversary, one of the top Family lawyers in the state, continues to talk about the case with me up to the present day when we have cases against each other. The two of us sadly reflect upon how these inexperienced Judges caused the destruction of an entire family. Both Judges acted like deer in headlights. With the Trial not being scheduled for another year or two, action had to be taken. As newly appointed Judges, they did not know what intermediary action to take. Each Judge prayed a settlement would take place between the parties. No settlement was reached. At the conclusion of the Divorce, each party and their children were economically destroyed.
- One of my most interesting cases, also involving intricate issues, was in front of an experienced Judge. My adversary, in this instance, was an excellent attorney. What a pleasure it was to go before a Judge who knows the Court Rules, Cases, and Rules of Evidence. After days of Trial, the Judge made recommendations to my adversary and me, which allowed the case to settle. Thousands of dollars were saved, and the clients were satisfied. My adversary is now a Family Law Judge and lucky are those who appear before her in Court.
I have been before inexperienced Judges in Criminal and Civil jury cases; however, with Judges, Prosecutors, and juries involved, justice in most cases is served. Regrettably, I cannot say the same for our Family Law Courts. This problem can be traced to the inefficiency of inexperienced Judges. How and why are so many newly appointed Judges placed in Family Law Courts? To answer this question, one must go back to April 15, 1998 when the late Chief Justice of the New Jersey Supreme Court, Robert N. Wilentz, issued Directive #6-88:”Rotation of Judicial Assignments.”
Judge Wilentz was the creator of the concept of rotating Judges so that these professionals might “have the opportunity to gain experience in all areas of judicial service.” Although it was well intended, in theory, our citizens are the ones who suffer while an inexperienced Judge learns the intricacies of Family Law. Does a novice Judge become competent by attending a seminar and watching videos after he or she is appointed? I certainly would not want a surgical procedure performed on me if that were the doctor’s only experience. If this were the case, surgeons would be gaining ‘experience’ at the cost of the patients they administer to. The same can be said of Family Law practice. Without experience and exposure as a practicing attorney, handling a Family Law matter from complaint to trial can be irresponsible and dangerous. One cannot gain understanding by taking a crash course in this field of law upon becoming a newly appointed member of the judiciary.
I have witnessed the morés of society changing over the years and I have seen the numerous changes in theology, religious thought, and civil rights. These changes were and are being made for the greater good of the citizens of our state and country. Similar to morés, theology, religious thought, civil rights, etc., the overall welfare of our citizens is dependent on the proficiency of the Family Law system. As Judge Wilentz stated in Directive #6-88, “I know of no better example than the family division whose work is second to none in its impact on society, on children, on the lives of our citizens. It can often save and sometimes destroy.” Given the extremely powerful effects of Family Law on the overall quality of life of our people, I believe that changes must be made in order to protect our state and our country.
At present, a citizens’ movement toward changing alimony is taking place and different Bills have been proposed by the Legislature. Separate Bills are also in committee to have collaborative law play a greater role in Family Law. However, if one reviews provisions delineated in NJSA 2A:34-3, and presents all of the facts to an experienced Family Law Judge, justice can be served. I further believe that although there are child support guidelines, alimony guidelines should not exist because of the particularity of each case.
In New Jersey there is such a backlog of Family Law cases that it sometimes takes years to be reached for Trial. This has to do with problems innate in the proceedings of such cases. Although each vicinage and County Bar Association is a little different, the general procedure is as follows:
After a complaint for Divorce is filed, Discovery (assets, financial information, etc.) is exchanged. The next phase is when citizens appear before Early Settlement Panels (ESP), economic mediators, and Intensive Settlement Conferences (ISC). Once again some of the lawyers who act as panelists and mediators are at times experienced and at times inexperienced. This is the same problem. The luck of the draw is to get experienced attorneys.
This cannot continue. While this article is not intended to be an advertisement for retired Judges, perhaps they would be the best individuals to handle more complex cases, if not all cases. In order to implement this, some changes must be considered. I suggest the following:
- On application by one party to a Family Law Judge, the case should be assigned to a retired Judge agreed to by both parties. If no agreement is reached, each party should submit two names of retired Judges to the Family Law Judge. He or she would then make the selection and prepare an Order that the matter be redirected to the appointed Judge. This person would have all of the authority of the Family Law Judge and would handle all aspects of the case, including Discovery, Motions, Enforcement of Orders, and the Final Decision. Any appeals would go directly to the Appellate Division under comparable present rules of arbitration. This process would save litigants thousands of dollars and many hours sitting in Court waiting to be reached.
With a plethora of experienced retired judges, why are families subject to novice judges and years of waiting to get into Court? In the field of medicine, something like this would never happen. If you have a heart attack and end up in a hospital, you expect to be treated by a cardiologist. Would you be shocked and outraged if you found out the doctor treating you was an orthopedic? They are both medical doctors, so does it matter which doctor monitors your care? Of course it matters. You expect that the hospital administration will see to it that you receive care by medical personnel who specialize in the field of your illness or injury. Why should you expect anything less from the Judicial system?
At present, numerous judicial vacancies exist. Each newly appointed Judge is a major expense to the government and ultimately the taxpayer. I have contacted two members of the Legislature, both the Senate and the Assembly, to find out the total cost for a Superior Court Judge. They did not know, but recommended that I contact the Administrative Director of the Courts. On March 3, 2014 I sent a letter addressing the matter to this individual and did not get a response. I then sent a follow up letter on March 21, 2014. As of today I have yet to receive a reply addressing the cost of a Superior Court Judge in New Jersey. As such, I have decided to take a guess at what it might be. If one considers an average salary of $175,000 in addition to costs for, pension, medical, insurance, social security, etc., a conservative figure would be $200,000 for the cost to the State. Since retired members of the judiciary receive healthy pensions and benefits, among other perquisites, I believe an alternative exists. I suggest paying a retired judge $100 per hour. Fifty percent (50%) would be paid by the State and fifty percent would be paid by the client or litigant. This suggestion should provide a windfall in savings to the State by limiting the number of Judges, courtroom personnel, agents, and more importantly, the citizens would benefit by having experienced Judges to address all issues. This would also limit the costs to a litigant for a seven hour day to $350.00, which represents the average cost for one hour of a lawyer’s time. This way, both the state and the litigant would benefit.
In conclusion, I hope this article sends a message to Governor Christie, the Legislature, and the Judiciary to take immediate action. I am sure Governor Christie would be an advocate for a more equitable and proficient Family Court system. The injustice and pain inflicted on the citizens of our State and their families when working with our Family Courts must end immediately!
New Jersey Law Journal Commentary, August 4, 2014