NJSBA Family Law Section

The Report of the Task Force on Judicial Independence was released a couple of weeks ago. For any who haven't seen it, it's online: http://www.njsba.com/images/content/1/0/1008603.pdf

Shortly after its release, I started working on a post, which would have been a long one, even for me. When the Task Force was first announced, I posted about the need to address the flip side of independence -- accountability. It isn't as comfortable to talk about, but we need to do whatever is necessary to bring about change. I did not and do not want this message to seem disrespectful in any way. It is not a gripe nor a vent, but a cold recognition that we need to (that it's our responsibility to) take action to improve the system.

I ran a draft of my contemplated new post by a much older, calmer and wiser mind than my own and been advised that it's not the way to proceed, at least not at first.

"...there are occasions, fortunately quite rare, in which an individual, for whatever reason, turns out to be unsuited..."  The Report of the Task Force on Judicial Independence, pages 15-17.

There is a problem. We all know this. There is no horror story I could give that others couldn't top. As the Task Force said (and I agree), these "occasions are quite rare."  But the analogy I used before holds - if a car is great 99% of the time, and only 1% of the time has a steering failure which causes it to drive into oncoming traffic and maim people, it's not a good car, regardless of its other features. We would expect someone to protect the public from it.

I'm not talking about someone who is generally a good judge but makes a bad call. Good judges will do that. Great judges will occasionally do that. That's why we have an appellate division. I'm not talking about someone who takes time to adjust to Family. No one who hasn't practiced in this area has a feel for it right off the bat and some of the best judges we've had in Family came to us with no experience. What I am talking about -- well, you (the reader) already know. Anyone who has been practicing Family Law for more than a few years has had this happen at least once and has horror stories that our system should never tolerate. The question has always been "well, what can we do about it"?  We whether the storm, we hope someone will be transferred out before too long and before too many people are hurt. It's simply not good enough.

My recent motivation, and what has me dedicated to stay with this until change happens, was a newly transferred judge sharing a belief at a Bench-Bar conference that we, as Family Law practitioners, intentionally inject emotion into the process "in order to fatten our wallets" and that if we calmed people down, it would "hurt our bottom line." Obviously, this is the precise opposite of what the vast majority of us (and all of us who specialize in Family) do. Whenever possible, we calm parties down, get them to negotiate and be reasonable and resolve matters. For a judge to make a statement like this was, in essence, hurling an obscenity at us (or, as has been suggested, was a cry to the Bar for us to assist in getting him out Family. This judge is far from stupid and obviously knew the implications of what he was saying and how offensive it was).

I will save the horror stories of the harm this man is doing to the public. They are plentiful and every one of them is a heartbreaking injustice. Unfortunately, as said, anyone out there can probably match anything I'd relate.

"An individual may initially have difficulty in a division which deals with a body of law with which the judge has had little or no previous experience and yet shine after the opportunity to become more familiar with that area or the opportunity to serve in a division in which the judge is handling a body of law with which he or she is more familiar." Task Force Report, page 17.

Interestingly, the judge I referred to does not appear to be "unsuited to the bench."  I know several attorneys who dual-specialize and knew this judge in his prior assignment. One, who had also heard the roar from the local Family bar, said he was (quote) "dumbfounded" how this judge could be fomenting such discontent - that in his prior assignment he pushed for settlements when appropriate, ruled promptly and intelligently when something needed to be ruled on, was the pinnacle of professionalism, and was highly respected and was genuinely liked.

My concern doesn't relate to tenure or dismissal of judges.  We must create a way, regardless of any other considerations, to get these people out of the Family Part. If other divisions follow suit and if a judge runs out of assignments, then - that's an issue for another day (when perhaps one can ponder what the definition of serving "during good behavior" really means).  My concern is for the Family Part.

For the record, I am proud of what we do. As Family Law attorneys, we help people through what is often one of the most difficult experiences in life. Like essentially all of us, I seek to resolve things fairly, quickly, and as inexpensively as possible. I consider it a moral duty (as do most of us) to read the unpublished cases, be involved in the legislative process, and stay abreast of changes in the law, to participate, and to make myself a better advocate. And when it's impossible to resolve something, we as a group generally litigate honorably and professionally. That's who we are, and I for one will not feign respect for someone who has contempt for us and what we do. Instead, I'll do anything I can to make something good come out this: systemic change.


What I am proposing is this --

After the message I posted a year ago, I didn't forget about the issue. I have bent the ear of anyone who would talk about it to gain a deeper understanding of the problem and why it is seemingly impossible to protect the public from these quite rare judges by getting them out of Family, where (unique among all judicial assignments), they can do such harm to innocent people. There are a lot of considerations that need to be taken into account and different angles at play. 

Suffice it to say that, for one reason or another, there is no existing group that will take this on - and that's why it still exists. But I have enough faith in this system and in us to believe that protecting the public and our profession from these quite rare judges can be done.

We could -- in complete confidence -- circulate and eventually send a letter to the Chief Justice and the Supreme Court making suggestions as to the needed changes. I don't even need to say that its cornerstone is respect for all those involved. Respect that they have earned and deserved. It would not be a forum to gripe about a particular judge or case. It's the system we need to change, not any given result. We can discuss a letter and the best suggestions for change, revise it, and then send it as a group. If anyone would be interested in participating in its drafting and suggestions but would not want to sign, that would obviously be your prerogative.

At this point, without yet hearing from many others, I think the answer lies in making significant changes to the Committee on Judicial Performance and its relationship generally with the bar.  That (and the specific changes) are where I'd start on the letter.

I don't want to climb up on a soap box again beyond saying that we must overcome the attitude that "it isn't our place to do this."  It is our place. More: It is our duty. The system is broken and we are complicit if we don't act. While proceeding with the utmost respect, we need to insist on bringing about a change as quickly and quietly as possible, maintaining the dignity that our courts have earned and without noise that would cause the public confidence in our judiciary to suffer. But, whatever it takes, if we respect ourselves and our profession (and I know we do) then we, as Family Law practitioners, need to act.

I invite anyone who would like to discuss this further to contact me off-list. All replies will be held in complete confidence.

Let's do this.

--------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
www.FamilyLawNJ.pro
Voice: 609-737-2222
Fax: 609-737-3222
--------------------------

I suggest that once a Judge is assigned to Family, evaluations be sent to attorneys who have appeared before him/her, and sent more often than they are now being sent. Since these evaluations are confidential, I believe they offer a valuable way to raise red flags for the court administration. The forms should be revised to encourage more narrative responses and more openness.  However, I believe so long as Judges are appointed this problem will persist, as I have appeared before Judges who clearly had no business being on the bench at all, but whom I knew had a great deal of political power. 

------------------------------
Anne Garner Esq
Toms River NJ
(732)341-5230
------------------------------


Original Message:
Sent: 05-14-2015 11:34
From: David Perry Davis
Subject: Judicial accountability / Acting respectfully to protect the public and our profession

The Report of the Task Force on Judicial Independence was released a couple of weeks ago. For any who haven't seen it, it's online: http://www.njsba.com/images/content/1/0/1008603.pdf

Shortly after its release, I started working on a post, which would have been a long one, even for me. When the Task Force was first announced, I posted about the need to address the flip side of independence -- accountability. It isn't as comfortable to talk about, but we need to do whatever is necessary to bring about change. I did not and do not want this message to seem disrespectful in any way. It is not a gripe nor a vent, but a cold recognition that we need to (that it's our responsibility to) take action to improve the system.

I ran a draft of my contemplated new post by a much older, calmer and wiser mind than my own and been advised that it's not the way to proceed, at least not at first.

"...there are occasions, fortunately quite rare, in which an individual, for whatever reason, turns out to be unsuited..."  The Report of the Task Force on Judicial Independence, pages 15-17.

There is a problem. We all know this. There is no horror story I could give that others couldn't top. As the Task Force said (and I agree), these "occasions are quite rare."  But the analogy I used before holds - if a car is great 99% of the time, and only 1% of the time has a steering failure which causes it to drive into oncoming traffic and maim people, it's not a good car, regardless of its other features. We would expect someone to protect the public from it.

I'm not talking about someone who is generally a good judge but makes a bad call. Good judges will do that. Great judges will occasionally do that. That's why we have an appellate division. I'm not talking about someone who takes time to adjust to Family. No one who hasn't practiced in this area has a feel for it right off the bat and some of the best judges we've had in Family came to us with no experience. What I am talking about -- well, you (the reader) already know. Anyone who has been practicing Family Law for more than a few years has had this happen at least once and has horror stories that our system should never tolerate. The question has always been "well, what can we do about it"?  We whether the storm, we hope someone will be transferred out before too long and before too many people are hurt. It's simply not good enough.

My recent motivation, and what has me dedicated to stay with this until change happens, was a newly transferred judge sharing a belief at a Bench-Bar conference that we, as Family Law practitioners, intentionally inject emotion into the process "in order to fatten our wallets" and that if we calmed people down, it would "hurt our bottom line." Obviously, this is the precise opposite of what the vast majority of us (and all of us who specialize in Family) do. Whenever possible, we calm parties down, get them to negotiate and be reasonable and resolve matters. For a judge to make a statement like this was, in essence, hurling an obscenity at us (or, as has been suggested, was a cry to the Bar for us to assist in getting him out Family. This judge is far from stupid and obviously knew the implications of what he was saying and how offensive it was).

I will save the horror stories of the harm this man is doing to the public. They are plentiful and every one of them is a heartbreaking injustice. Unfortunately, as said, anyone out there can probably match anything I'd relate.

"An individual may initially have difficulty in a division which deals with a body of law with which the judge has had little or no previous experience and yet shine after the opportunity to become more familiar with that area or the opportunity to serve in a division in which the judge is handling a body of law with which he or she is more familiar." Task Force Report, page 17.

Interestingly, the judge I referred to does not appear to be "unsuited to the bench."  I know several attorneys who dual-specialize and knew this judge in his prior assignment. One, who had also heard the roar from the local Family bar, said he was (quote) "dumbfounded" how this judge could be fomenting such discontent - that in his prior assignment he pushed for settlements when appropriate, ruled promptly and intelligently when something needed to be ruled on, was the pinnacle of professionalism, and was highly respected and was genuinely liked.

My concern doesn't relate to tenure or dismissal of judges.  We must create a way, regardless of any other considerations, to get these people out of the Family Part. If other divisions follow suit and if a judge runs out of assignments, then - that's an issue for another day (when perhaps one can ponder what the definition of serving "during good behavior" really means).  My concern is for the Family Part.

For the record, I am proud of what we do. As Family Law attorneys, we help people through what is often one of the most difficult experiences in life. Like essentially all of us, I seek to resolve things fairly, quickly, and as inexpensively as possible. I consider it a moral duty (as do most of us) to read the unpublished cases, be involved in the legislative process, and stay abreast of changes in the law, to participate, and to make myself a better advocate. And when it's impossible to resolve something, we as a group generally litigate honorably and professionally. That's who we are, and I for one will not feign respect for someone who has contempt for us and what we do. Instead, I'll do anything I can to make something good come out this: systemic change.


What I am proposing is this --

After the message I posted a year ago, I didn't forget about the issue. I have bent the ear of anyone who would talk about it to gain a deeper understanding of the problem and why it is seemingly impossible to protect the public from these quite rare judges by getting them out of Family, where (unique among all judicial assignments), they can do such harm to innocent people. There are a lot of considerations that need to be taken into account and different angles at play. 

Suffice it to say that, for one reason or another, there is no existing group that will take this on - and that's why it still exists. But I have enough faith in this system and in us to believe that protecting the public and our profession from these quite rare judges can be done.

We could -- in complete confidence -- circulate and eventually send a letter to the Chief Justice and the Supreme Court making suggestions as to the needed changes. I don't even need to say that its cornerstone is respect for all those involved. Respect that they have earned and deserved. It would not be a forum to gripe about a particular judge or case. It's the system we need to change, not any given result. We can discuss a letter and the best suggestions for change, revise it, and then send it as a group. If anyone would be interested in participating in its drafting and suggestions but would not want to sign, that would obviously be your prerogative.

At this point, without yet hearing from many others, I think the answer lies in making significant changes to the Committee on Judicial Performance and its relationship generally with the bar.  That (and the specific changes) are where I'd start on the letter.

I don't want to climb up on a soap box again beyond saying that we must overcome the attitude that "it isn't our place to do this."  It is our place. More: It is our duty. The system is broken and we are complicit if we don't act. While proceeding with the utmost respect, we need to insist on bringing about a change as quickly and quietly as possible, maintaining the dignity that our courts have earned and without noise that would cause the public confidence in our judiciary to suffer. But, whatever it takes, if we respect ourselves and our profession (and I know we do) then we, as Family Law practitioners, need to act.

I invite anyone who would like to discuss this further to contact me off-list. All replies will be held in complete confidence.

Let's do this.

--------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
www.FamilyLawNJ.pro
Voice: 609-737-2222
Fax: 609-737-3222
--------------------------

I suggest that once a Judge is assigned to Family, evaluations be sent to attorneys who have appeared before him/her, and sent more often than they are now being sent. Since these evaluations are confidential, I believe they offer a valuable way to raise red flags for the court administration. The forms should be revised to encourage more narrative responses and more openness.  However, I believe so long as Judges are appointed this problem will persist, as I have appeared before Judges who clearly had no business being on the bench at all, but whom I knew had a great deal of political power. 

------------------------------
Anne Garner Esq
Toms River NJ
(732)341-5230
------------------------------


Original Message:
Sent: 05-14-2015 11:34
From: David Perry Davis
Subject: Judicial accountability / Acting respectfully to protect the public and our profession

The Report of the Task Force on Judicial Independence was released a couple of weeks ago. For any who haven't seen it, it's online: http://www.njsba.com/images/content/1/0/1008603.pdf

Shortly after its release, I started working on a post, which would have been a long one, even for me. When the Task Force was first announced, I posted about the need to address the flip side of independence -- accountability. It isn't as comfortable to talk about, but we need to do whatever is necessary to bring about change. I did not and do not want this message to seem disrespectful in any way. It is not a gripe nor a vent, but a cold recognition that we need to (that it's our responsibility to) take action to improve the system.

I ran a draft of my contemplated new post by a much older, calmer and wiser mind than my own and been advised that it's not the way to proceed, at least not at first.

"...there are occasions, fortunately quite rare, in which an individual, for whatever reason, turns out to be unsuited..."  The Report of the Task Force on Judicial Independence, pages 15-17.

There is a problem. We all know this. There is no horror story I could give that others couldn't top. As the Task Force said (and I agree), these "occasions are quite rare."  But the analogy I used before holds - if a car is great 99% of the time, and only 1% of the time has a steering failure which causes it to drive into oncoming traffic and maim people, it's not a good car, regardless of its other features. We would expect someone to protect the public from it.

I'm not talking about someone who is generally a good judge but makes a bad call. Good judges will do that. Great judges will occasionally do that. That's why we have an appellate division. I'm not talking about someone who takes time to adjust to Family. No one who hasn't practiced in this area has a feel for it right off the bat and some of the best judges we've had in Family came to us with no experience. What I am talking about -- well, you (the reader) already know. Anyone who has been practicing Family Law for more than a few years has had this happen at least once and has horror stories that our system should never tolerate. The question has always been "well, what can we do about it"?  We whether the storm, we hope someone will be transferred out before too long and before too many people are hurt. It's simply not good enough.

My recent motivation, and what has me dedicated to stay with this until change happens, was a newly transferred judge sharing a belief at a Bench-Bar conference that we, as Family Law practitioners, intentionally inject emotion into the process "in order to fatten our wallets" and that if we calmed people down, it would "hurt our bottom line." Obviously, this is the precise opposite of what the vast majority of us (and all of us who specialize in Family) do. Whenever possible, we calm parties down, get them to negotiate and be reasonable and resolve matters. For a judge to make a statement like this was, in essence, hurling an obscenity at us (or, as has been suggested, was a cry to the Bar for us to assist in getting him out Family. This judge is far from stupid and obviously knew the implications of what he was saying and how offensive it was).

I will save the horror stories of the harm this man is doing to the public. They are plentiful and every one of them is a heartbreaking injustice. Unfortunately, as said, anyone out there can probably match anything I'd relate.

"An individual may initially have difficulty in a division which deals with a body of law with which the judge has had little or no previous experience and yet shine after the opportunity to become more familiar with that area or the opportunity to serve in a division in which the judge is handling a body of law with which he or she is more familiar." Task Force Report, page 17.

Interestingly, the judge I referred to does not appear to be "unsuited to the bench."  I know several attorneys who dual-specialize and knew this judge in his prior assignment. One, who had also heard the roar from the local Family bar, said he was (quote) "dumbfounded" how this judge could be fomenting such discontent - that in his prior assignment he pushed for settlements when appropriate, ruled promptly and intelligently when something needed to be ruled on, was the pinnacle of professionalism, and was highly respected and was genuinely liked.

My concern doesn't relate to tenure or dismissal of judges.  We must create a way, regardless of any other considerations, to get these people out of the Family Part. If other divisions follow suit and if a judge runs out of assignments, then - that's an issue for another day (when perhaps one can ponder what the definition of serving "during good behavior" really means).  My concern is for the Family Part.

For the record, I am proud of what we do. As Family Law attorneys, we help people through what is often one of the most difficult experiences in life. Like essentially all of us, I seek to resolve things fairly, quickly, and as inexpensively as possible. I consider it a moral duty (as do most of us) to read the unpublished cases, be involved in the legislative process, and stay abreast of changes in the law, to participate, and to make myself a better advocate. And when it's impossible to resolve something, we as a group generally litigate honorably and professionally. That's who we are, and I for one will not feign respect for someone who has contempt for us and what we do. Instead, I'll do anything I can to make something good come out this: systemic change.


What I am proposing is this --

After the message I posted a year ago, I didn't forget about the issue. I have bent the ear of anyone who would talk about it to gain a deeper understanding of the problem and why it is seemingly impossible to protect the public from these quite rare judges by getting them out of Family, where (unique among all judicial assignments), they can do such harm to innocent people. There are a lot of considerations that need to be taken into account and different angles at play. 

Suffice it to say that, for one reason or another, there is no existing group that will take this on - and that's why it still exists. But I have enough faith in this system and in us to believe that protecting the public and our profession from these quite rare judges can be done.

We could -- in complete confidence -- circulate and eventually send a letter to the Chief Justice and the Supreme Court making suggestions as to the needed changes. I don't even need to say that its cornerstone is respect for all those involved. Respect that they have earned and deserved. It would not be a forum to gripe about a particular judge or case. It's the system we need to change, not any given result. We can discuss a letter and the best suggestions for change, revise it, and then send it as a group. If anyone would be interested in participating in its drafting and suggestions but would not want to sign, that would obviously be your prerogative.

At this point, without yet hearing from many others, I think the answer lies in making significant changes to the Committee on Judicial Performance and its relationship generally with the bar.  That (and the specific changes) are where I'd start on the letter.

I don't want to climb up on a soap box again beyond saying that we must overcome the attitude that "it isn't our place to do this."  It is our place. More: It is our duty. The system is broken and we are complicit if we don't act. While proceeding with the utmost respect, we need to insist on bringing about a change as quickly and quietly as possible, maintaining the dignity that our courts have earned and without noise that would cause the public confidence in our judiciary to suffer. But, whatever it takes, if we respect ourselves and our profession (and I know we do) then we, as Family Law practitioners, need to act.

I invite anyone who would like to discuss this further to contact me off-list. All replies will be held in complete confidence.

Let's do this.

--------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
www.FamilyLawNJ.pro
Voice: 609-737-2222
Fax: 609-737-3222
--------------------------

I agree wholeheartedly that elections are the wrong way to go. I travelled to Arkansas several times in support of a guy (Damien Echols) who was wrongly convicted and sentenced to death (he was released in August 2011). During one of his hearings, the judge's (David Burnett) cell phone rang. He answered it, then put his hand up to stop the proceedings and proceeded to BS with the caller for a few minutes from the bench, laughing at times with whoever he was speaking to. This was a death penalty post-conviction proceeding(!). The judge (now Senator) was very popular - the defendants (the "West Memphis Three") were, shall we say, not popular. That's the first example I think of when the issue of elected judges comes up - and, of course, the "my decision in this close case was not affected by your adversary's $5,000 contribution to my campaign..." that I hear from PA attorneys.  But elections is a different issue, we're more concerned with the expeditious reassignment of judges out of Family.

I also agree that there should be more evaluation forms sent and that changes are appropriate. It was just pointed out to me that the Judicial Performance Committee was disbanded in favor of the Judicial Performance Program ( http://www.judiciary.state.nj.us/notices/2012/n121113a.pdf ) The system should change in that questionaires should be sent in reference to both tenured and untenured judges. The Supreme Court (whether via Program or Committee) needs to trust that the bar generally knows the difference between a good judge making a bad call (or a call we don't agree with) and a situation where there is a deeper, more urgent problem.

The County Bar Associations should be the ones (in addition to as many of us as possible who would sign off on a letter) to bring suggestions to the Supreme Court as to how to fix this and get judges out of the Family Part more quickly when it's shown that the public needs protection, but thereafter - the feedback and evaluations (and any resulting action as far as reassignment) has to come from attorneys and other judges.  As pointed out, it needs to be 100% confidential process. The independance aspect has to be considered as well, and there can't be a perception that a county bar association has more say over performance than anyone else.  That would be a step backwards.

The devil is always in the details.  What specific changes should be made to the feedback mechanisms?  I agree that the questionnaires should be sent more frequently.  I also think there should also be a method by which counsel can reach out to the Program rather than waiting for an invitation (perhaps a separate method when counsel would do so JOINTLY - that says more than any one attorney feeling there's a problem). What else? What is the rubric that should be applied?  Are there questions on the current evaluation that should be changed? Deleted? Added? What specific questions would alert the court that there's urgency to addressing whether a judge should stay in Family?

------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
www.FamilyLawNJ.pro
Voice: 609-737-2222
Fax: 609-737-3222
------------------------------