Legal information and communication issues lie at the center of a number of recent U.S. civil justice reform efforts, including
the joint project of the American College of Trial Lawyers (ACTL) Task Force on Discovery and Civil Justice and the Institute for the Advancement of the American Legal System at the University of Denver (IAALS), and the reform projects of the U.S. Federal Judicial Center and the U.S. Court of Appeals for the Seventh Circuit.
To these should be added the initiative to reform procedure in California’s family courts.
The Elkins Family Law Task Force was appointed in 2008 to make recommendations for reforming evidence rules and access to legal representation and information in California state family court proceedings. As explained in the Task Force’s Draft Recommendations report, since the mid-1970s, in response to a flood of cases, many of which involve one or more pro se litigants, California trial courts have adopted local rules restricting, and in some instance eliminating, litigants’ right to call witnesses to testify in person in family court proceedings. In Elkins v. Superior Court, 41 Cal.4th 1337, 163 P.3d 160 (Cal. 2007), the California Supreme Court held that such rules adopted by one California trial court were inconsistent with existing California law. The Court also urged the Judicial Council of California to “establish a task force to ‘study and propose measures to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings and to ensure access to justice for litigants, many of whom are self-represented.’” The Elkins Task Force was subsequently named.
The Task Force identified five major problems respecting civil justice in California family courts:
- Local rules that prohibit live testimony in court proceedings;
- Huge caseloads;
- Large numbers of pro se litigants;
- Drawn out litigation; and
- Great numbers of unresolved cases.
Among the numerous recommendations offered by the Task Force to address these problems, many concern the following legal information or legal communication issues (listed in alphabetical order; click on the name of an issue to see a summary of the recommendations concerning that issue):
Caseflow Management:
- Create a formal caseflow management system with frequent, automated checkpoints and time standards;
- Allow judges on their own initative to actively “control the manner and pace of the litigation . . . includ[ing by means of] establishing discovery schedules and cut-off dates, setting dates for exchange of expert witness information, and other pretrial orders”;
- Let judges “work with [litigants] to develop case management plans” which “may include early neutral case evaluation, alternative dispute resolution, a discovery plan or limitations on discovery, use of telephone conferences, the appropriate waiver of requirements of procedural statutes, jointly selected or court-appointed expert witnesses, bifurcation of issues for trials, and allocation and awarding of attorney fees and costs”
- Have court “staff [regularly] review [case] files to ensure that all documents are in order and inform the court if information is missing or incomplete. . . . Staff could provide notes to the judicial officer as well as public notes, which . . . may be made available on the court’s Web site for access by the parties, attorneys, and self-help center staff”;
- Use “dedicated calendars such as a self-represented litigant calendar, default calendar, work search calendar, and contempt calendar to enhance services to the public.”
Click here to return to the list of issues.
Code of Family Law Procedure:
- Revise family law procedural rules to make them more intelligible, by:
- Creating a set of uniform statewide family law procedural rules, that covers all procedural matters arising in family law cases;
- Codifying those rules in a text that also incorporates all relevant civil rules;
- Abolishing all local rules and courtroom-specific rules not required by law; and
- Writing the revised rules “in plain language” and “organiz[ing them] logically.”
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Courts’ Internal Data Collection and Assessment Processes:
- A California family courts “research agenda” should be implemented, and should feature:
- Uniform statewide statistical reporting;
- Workload studies;
- Performance measures;
- Surveys of litigants;
- Assessment of the “effectiveness and replicability” of court services;
- Assessment of the “usability or readability” of forms;
- “Review of research and best practices from other jurisdictions;” and
- “[A] self-assessment tool to ensure that local rules and procedures are in compliance with state law and rules.”
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Court Transparency & Accountability:
- Create a “mechanism for litigants and the public to submit complaints related to court-based services. The complaint process should include issues of access and procedural fairness;”
- “Creat[e] a public information program to educate the public on the services available, court’s limitations, and options for resolving their complaints;”
- Create “a court ombudsman position to receive and investigate complaints and make recommendations to court leadership for improvement.”
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Evidence and Discovery:
- Change local rules to generally require courts to allow live witnesses in family court proceedings;
- Implement the recommended caseflow management system, which includes the authority to work with parties to create “discovery plan[s] or limitations on discovery”;
- Equip “family law courtrooms … with appropriate technology and other accommodations to facilitate the presentation of evidence and production of other needed documents…. For example, courtrooms should have wireless Internet access and sufficient power outlets for attorneys and litigants to plug in laptops, printers, and projectors”;
- Provide pro se litigants with instruction and materials on evidence rules;
- Allow children to participate meaningfully in family law proceedings, including where appropriate by giving live testimony;
- Increase sanctions for perjury;
- In child custody cases:
- Increase and standardize the information provided to the court;
- Ensure that such information is provided to all parties;
- Give parties the opportunity to respond to all information provided to the court;
- Afford to parties the opportunity to cross-examine those who provide information to the court.
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Forms:
- Review and revise family court forms to ensure that they “[are] easy to use, allow parties to provide critical information requested by the court, and [are] readily accessible”;
- Simplify complex forms;
- Provide templates for declarations and agreements;
- In the new California family courts “research agenda,” include the assessment of the “usability or readability” of forms;
- Identify effective local forms, and modify them for statewide use.
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Judges’ Education:
- Include in education for family court judges better information and instruction respecting:
- Children’s needs and circumstances;
- “[E]mpirical evidence of the effect of the court on the lives of children and families”;
- The use of court interpreters;
- Writing enforceable orders;
- Dealing with pro se litigants;
- Civil procedure;
- Pretrial attorneys’ fee awards;
- Limited-scope legal representation;
- The role of minors’ counsel;
- Leadership in family courts;
- Collaborative family court approaches.
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Information Technology:
- Automate the “checkpoints” in the new caseflow management system, including the sending of electronic and telephonic notices and reminders to litigants;
- Furnish self-help centers for pro se litigants with “the appropriate equipment and technology to facilitate service delivery,” including “computer workstations for staff use that include access to electronic court records; copy and fax machines; and long-distance telephone access”;
- Make “[i]nformation [offered to litigants about their procedural rights in family law cases] … available online, and [present it] in a variety of ways, such as informational handouts, flowcharts and checklists, a legal resource guide, and videos, audiotape, and multimedia presentations”;
- Provide for telephone conferences in caseflow management plans;
- “Offer an e-filing and/or fax filing option” in family court proceedings;
- Configure “[c]omputers in the courthouses, law libraries, and public libraries … to handle e-filing and fax filing”;
- “[P]rovide an opportunity for parties to review a recording of family law proceedings for a designated period of time”;
- Equip “family law courtrooms … with appropriate technology and other accommodations to facilitate the presentation of evidence and production of other needed documents…. For example, courtrooms should have wireless Internet access and sufficient power outlets for attorneys and litigants to plug in laptops, printers, and projectors”;
- Require staff reviewing case files for completeness to provide public notes about needed information, which “may be made available on the court’s Web site for access by the parties, attorneys, and self-help center staff.”
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Language Barriers:
- Expand availability of court interpreters;
- Train judges in the proper use of court interpreters;
- Make the new litigant orientation information and public information packages available in multiple languages.
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Legal Representation:
- Allow pretrial awards of attorneys’ fees to enable pro se litigants to pay for counsel;
- Expand the provision of unbundled and limited-scope legal services;
- Respecting minor children’s counsel:
- Restrict their communications to those permitted to be made by counsel for adults in an ordinary civil proceeding;
- Prohibit them from determining whether the minor child has capacity to form a preference respecting custody; and
- Require them to express to the court the minor child’s desire respecting custody.
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Minors’ Communication in Family Court Proceedings:
- Permit minor children to participate meaningfully in family law proceedings, including where appropriate by giving live testimony;
- Respecting minor children’s counsel:
- Restrict their communications to those permitted to be made by counsel for adults in an ordinary civil proceeding;
- Prohibit them from determining whether the minor child has capacity to form a preference respecting custody; and
- Require them to express to the court the minor child’s desire respecting custody.
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Pro Se Litigants’ Access to Information:
- Expand pro se self-help services to include instruction and materials on evidence;
- Furnish self-help centers for pro se litigants with “the appropriate equipment and technology to facilitate service delivery, including …:
- [L]egal research materials such as rules, codes, and practice guides;
- [C]omputer workstations for staff use that include access to electronic court records;
- [C]opy and fax machines; and
- [L]ong-distance telephone access.”
- Create a new uniform, statewide family court procedural code, written “in plain language and organized logically”;
- Amend family law statutes and procedural rules to substitute the plain-language term “parenting time” for the legal terms “custody” and “visitation”;
- Create a new package of orientation information that furnishes litigants “with information about their procedural rights in family law cases.” The package should have the following features:
- It should include “information about legal resources including brochures from the State Bar, free or low-cost legal clinics, legal services, and county bar lawyer referral panels”;
- It should include “information about limited scope representation;
- It should include “information about options such as mediation and collaborative law”;
- It “should be uniform statewide, made available online, and offered in a variety of languages,” and
- “It should be presented in a variety of ways, such as informational handouts, flowcharts and checklists, a legal resource guide, and videos, audiotape, and multimedia presentations.”
- Throughout the case, provide litigants with additional legal information, especially concerning mediation, settlement, and evidence rules;
- Provide litigants with instruction about the enforcement of orders;
- Provide pro se litigants with instruction about the difficulties of proceeding pro se and about circumstances that may require consulting a professional;
- Tailor all pro se instruction and information to the circumstances of particular litigants.
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Public Education & Involvement in Family Courts:
- “[D]evelop a public information program to educate the public about the availability and benefits of court services, particularly prefiling services. [C]reate core content that is applicable statewide, leaving local courts flexibility to tailor the materials to the specific needs of their communities”;
- Make these public information “[m]aterials … available in a variety of formats, including text and visual, to accommodate different learning styles among the court user population. Materials should be available in multiple languages”;
- “[E]stablish local committees to focus primarily on ways to improve family and juvenile justice. These committees would be standing committees appointed by the presiding judges (court, family, juvenile) and composed of a broad cross-section of community stakeholders.”
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These recommendations suggest many areas of fruitful inquiry for legal informatics and communication research.
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