Should a Jury be Required in Family Law Cases?

JUDGE VERSUS JURIES IN FAMILY LAW

This topic has been thrown around quite a bit lately among parents in family law reform. Some states allow jury trials in family law and some do not. The issues that Catherine MacWillie of Custody Calculations discusses in this podcast is whether family law cases should be heard by juries or judges. Catherine is a Divorce Coach and Retired Law Enforcement Officer.

Catherine raises some pretty staggering numbers regarding how many jury members would be required if every family law case was heard by a jury in California alone. She says that there are approximately 31,000 family law (dissolutions, legal separations, and annulments) cases a month in California and it is one of the largest populations in the United States. This means that approximately 30,000 additional jury members every day that court is in session, approximately 6 million jurors would be needed per year to handle these many cases. These numbers capture filings and not the numbers of how often the cases go to court. Catherine says that on average a case goes to court about 5-7 times before it gets a hearing.

LISTEN TO THE PODCAST HERE:

 

WHERE WILL THE STATE FIND THE BUDGET FOR JURIES IN EVERY CASE?

Catherine also discusses what this means for employers and court staff, court buildings, and even the parking lot space available at the courthouses to accommodate this increased number of jurors coming to the courts. She says that with the increased number of jurors that would be needed parking lots would need to be larger, there would need to be better transportation options, and juror rooms would need to be larger to accommodate the increased number of jurors needed on a daily basis. And this expansion requirement and this could mean that there would be less space for courtrooms and result in fewer courts to hear these cases. Just one of the reasons there could be more delays.

Catherine estimates that this could also require another 84 million dollars necessary to be added to the court budget. And right now, the budget has been shrinking.

She also covers the impact and hardships for personal individuals regarding making arrangements for their family, taking time off work, and transportation.

Catherine and Attorney Vincent Davis are the experts covering this topic. Listen here: Divorce & Family Law Radio Show

IS THERE ANY RESEARCH ON JURIES VERSUS JUDGE DECISIONS?

There is significant research on jury decisions versus judges. Harry Kalven, Jr. and Hans Zeisel did a study on jury trials versus judges where they researched about 7200 cases to report both on how the jury decided the case and how the judge would have decided if it would have been a bench trial. They found that juries were more lenient and acquitting where judges were more likely to convict. In 39% of the cases judges would have awarded more in damages than the jury.

A couple of other interesting findings were that attractiveness elicits jury sympathy and the longer a grand juror served on a grand jury the more the juror decision was more aligned with the judge.

There are many books published and research on this issue – a staggering amount in fact says Catherine.

Catherine says that parents feel that if they had juries instead of judges that they would receive a fairer result thinking that there would be less bias as it wouldn’t sit in the hands of one person. On the other hand, research is showing that there really is not a big difference. But whether that will bear out in family law remains to be seen since there is no research on this around family law that Catherine found.

INCREASED DELAYS WITH A JURY

There will be more delays and you might find the cost was not justified and the differences between having a judge or a jury was negligent. If that happens, Catherine says, they might find that “Now we have to mop up another system meant to improve the prior system.” This is a gamble. Could family law data be the exception? Maybe, maybe not. Some cases could do better and some do worse. Are the cases that do worse justified are the cases that do better justified. Catherine says you just won’t know without more research into this and she suggests that perhaps use of juries in limited scope and in limited size could be considered.

Texas and Georgia are the only two states she found that provide a limited scope for juries. Georgia can decide alimony, child support and distribution of assets and debt. In Texas, juries can determine custody but not visitation or child support. Parents can also seek to terminate the parental rights of another (as a jury was used in Rod McCall’s case, you can read about in the book, “For the Love of Eryk,” where there was extreme parental alienation) or where one is trying to prove paternity. During fiscal year 2014 Texas had 174 jury trials according to administration of the courts for Texas. Georgia does not track the number of trials by a jury. Catherine suggests that if juries are going to be considered on a larger scale we need to find out what Georgia and Texas have learned.

The attorney on this show, Vince, thinks it is a great idea to consider juries to decide custody and visitation.

Catherine cautions however “To think that a bias does not exist and won’t impact juries the same as does judges would be naïve.”

Juries can provide an advantage of bias favorable to their client. And, in fact, Vince, admits that as an attorney he wouldn’t ask for a jury unless that was the case.

Catherine reminds that “We need to recognize that even though many people feel they are running away from a bias they are running to a group of 12 people with a bias. That can work for or against.”

Vince adds that “Sometimes a jury does not rule or make a decision that you think it is going to make.”

“Perception versus research really shows us what we think we know and what is true and factual. This is really going to be an issue with research going forward” says Catherine.

Catherine also frequently attends the AFCC where judges, attorneys, and counselors go for their training in family law. She says that she has not heard them discuss the issue of juries in family law in the local meetings that she has attended in California or in the other events she attends with those professionals. That does not mean that they have not discussed these issues, it just may mean they weren’t discussed at the ones she attended.

FELONS HAVE MORE PROTECTIONS TO ACCESS TO THEIR CHILDREN THAN FIT PARENTS

Catherine says we do more to assure access to children for violent felons than we do for fit parents.

Nearing the end of the show the attorney, Vince, goes over some statistics regarding parents without attorneys. He says that 70% of the parents getting divorced did not have lawyers. And that money as a reason for not having an attorney was not even in the top 5! From 1-10 the reasons why people didn’t have lawyers, surprisingly money to hire a lawyer was not in the top 5, it was either 6 or 7. Vince says that people in custody battles is not the majority of people who are getting divorced and says that only 15 to 17% is the number of high conflict families. Catherine disputes this number and says that based on calls for reform, Catherine thinks the numbers are much higher and she doesn’t think the courts are capturing that number accurately. The numbers thrown around in custody cases now are that about 90-95% one or both are representing themselves. If people come in representing themselves, what is that going to do to the jury system? What will that be like. The judge is going to have to admonish the court when the evidence is not correctly or the judge would have to be sequestering the jury under some challenges. These could take days or even weeks. How much would a pro per parent know or understand?

WHAT CAN A DIVORCE COACH BRING TO A FAMILY?

What does a divorce coach bring to a family? They can make a parent aware of different scenarios to them that could keep them out of court, different options, and explain the process. Catherine says that What happens outside the courtroom is what drives what happens inside the courtroom.

She has helped parents understand:

What do you do when the police are knocking on your door?

Child abduction issues. This can include not knowing what school the children are at or finding them when they are not at school. It is important to be able to locate a child quickly. There are horrific things that have happened to children when they were not where they were supposed to be when they were supposed to be there. Take for instance the case this year, where the California father, Alvaro Camara, a 40-year-old who killed his 6 year-old daughter and 18-month-old son over father’s day this year, June 2017 as reported by People Crime. The father did not return the children when they were supposed to be returned, the mother notified the police, the police made the assumption the father was just taking an extra-long father’s day weekend with his children, despite the fact that the mother had reached out to the police multiple times before that with concern about the father’s mental state as he was sending her extremely concerning angry text messages over that weekend, and a neighbor noticed that the father was very anxious. By the time the police located the children the next morning, they found the children and the father all dead. Could this situation have been prevented with someone as experienced as Catherine who knows that when a parent is anxious they need some support. Catherine has been able to bridge communications and quell anger between parents in cases and perhaps it could have helped here. But now we will never know because Catherine was not a part of this one.

Catherine can provide invaluable information to a parent for a fraction of the cost of an attorney. She does not provide legal advice and is not an attorney and always recommends that the parent also have an attorney. She gives a parent information they can discuss with their attorney and she tries to help the person from creating more issues outside the courtroom, by teaching them how to communicate and how not to communicate. Catherine can help parents find their child and get information on their child without inflaming the case and creating things that can be used against them. She also teaches parents how to work with their children during these stressful times. She gives the perspective on what their child might be feeling, how to not fight with the other parent over homework issues, and other valuable skills that Catherine has developed throughout her years as a police officer and now her many years as a parental alienation and abduction expert, and divorce coach.

Catherine also helps parents with difficult property and asset decisions. When parents are emotional they might not be in a position to make the best decision without support of a neutral unemotional person. In one example, she discusses with a parent who had received a settlement apartment versus a house. She the parent decided to go with her advice and seek a person with realtor experience to discuss their options, to this parent’s surprise they qualified for a house and they are happy with the stability that this decision has provided them.

Catherine estimates that her help has saved parents 10 to 30% on attorney fees.

Bottom line, you need more than an attorney in a divorce environment. There is no reason to go this alone and in fact it is a disadvantage to go this alone. Catherine encourages parents to get connected with other organizations and groups to help them through this process and to get involved in reform efforts.

You can get Catherine’s E-magazine for free when you register at her Custody Calculations website.

Catherine is also the National Family Law Policy Center lead expert and policy advisor on cost, causes, and controversies regarding parental alienation, high conflict, and crime. You can donate here to keep her work going and help with changing state policies leading to increased crime and destruction of family, fit parent-child bonds and extended family relationships.

READ THE ENTIRE SCRIPT OF THE SHOW BELOW:

I want to welcome back our special guest tonight

Catherine MacWillie, CEO of Custody Calculations

For listeners who are unfamiliar with her work. Catherine has 32 years of experience dealing with Family Law.

24 years as a law enforcement officer with Los Angeles Police Department responding to radio calls dealing with divorce and custody. She was also a first responder to child abuse investigations

Catherine spent 10 years researching Family Law, where she identified that divorce and custody issues may be responsible for 25% of the crime in the United States

Catherine has been a Child Custody and Divorce Coach, for the last 8 years working with clients all over the United States and abroad

By the way I hear congratulations are in order. You are going to be presenting in Prague next year at International Academy of Law and Mental Health (IALMH) conference. Very impressive

Welcome Catherine

Catherine; Thank you Vince it’s a real pleasure to be back with you on the show tonight and yes I am very excited to be a speaker at the conference in Prague next year.

Vince; So tonight’s topic is on Family Law reform – utilizing juries instead of judges in decisions dealing with divorce and custody cases  

Catherine;  The right to a trial by a jury is deeply embedded in the very foundation of our American belief in justice and can be found in the Sixth and Seventh Amendments to the U.S. Constitution which preserve the right to “jury trials.” However, this is not a right consistently available to all litigants in the civil arena.

 

Vince; Where would you like to begin?

I thought we would cover three areas;

1. What would be required to implement juries in Family Law and the impact of this decision. Including the impact on the public/private sector which would bear the brunt of this requirement.

2. Since decisions by juries have not been without controversy. Have juries demonstrated they could function more effectively in Family Law than a judge?

3. Based on this discussion do I support juries in Family Law?

Catherine;  while there is obviously so much more that could be discussed on this issue based on time restrictions I am going to limit it to these three areas. I guess we could always do a second show at a later date if the opportunity arose. Your thoughts? 

 

Vince;  So let’s get started

Catherine; Since the show is LA based let’s use California as an example. California’s court system is one of the largest in the world and serves a population of more than 38 million people—about 12 percent of the total U.S. population. There are 58 counties and more than 500 court buildings, 2,000 judicial officers and another 19,000 judicial branch employees approximately throughout the state.

During fiscal year 2013-2014, over 7.5 million cases were filed statewide in the Superior Courts. Family Law filings (dissolutions, legal separations and annulments) accounted for 138,968 cases. Other family law filings (e.g. paternity, child support etc) another 242, 518 filings bringing the total to 381,486 filings.

That breaks down to 31,791.5 cases per month and that is if we are collecting of all the numbers correctly. Which we may not be. For instance cases are often continued 5-7 times before coming to court. These numbers capture filings not the multiple

dates for the same case etc. Another impact to the issue of juries ~ number of continuances and how to reduce that impact.

If you deduct out black out days, weekends, holidays, admin days you are left with an average of say 16 or 17 business days per month to hear cases. That breaks down to  just under 1,800 cases a day. To be precise it is 1,985.96 cases per day. Juries require 12 members with additional members – known as alternates in case a jury member must be replaced due to illness, conflict etc . Let’s average that to 14 jurists.

That translates to an additional 29,795  jury members every day court is in session

just for Family Law.  476,750 per month. And 5,720,640 jury positions every year, in Family Law. Pretty big numbers. I don’t think anyone has thought in that capacity before.

Catherine;  I don’t think that I have heard anyone really discuss numbers when they talk about juries? Have you?

 

Vince; What else should we discuss regarding these jury numbers?

Catherine: These numbers are not going to be equally distributed among the public either. Language issues, family or medical issues and other hardships, will remove a significant percentage of the population as they do now in criminal court and other civil hearings. That is going to place an even greater burden remaining pool of available applicants. But the hard cold reality is if we are unable to sustain the jury numbers necessary to meet the demands – cases will need to be continued. This one issue will result in further delays and backlog to an already overburdened overwhelmed Family Law court system.

Does that mean we should not consider the option! Not saying that. But we better think pretty hard and long on the the plus and minus column. Is this really a viable option for reform considering the demands it would place on the entire system and the public. I want go into that a little bit more in a minute.

Vince; You mentioned a moment ago that there are other considerations. What are those issues?

Catherine: You don’t need to be a mathematician to see these numbers are pretty big. And the demand is not just going to be on the public. For working jury members there would be the additional burden on employers who would need to give employees time off for jury duty. Would that be paid or unpaid by the employer? Is the employer going to have to hire someone else to handle the workload while the other employee is on jury duty? Creating another hardship on both the public and businesses.

Then there is the issue of physically absorbing the nearly 6 million more jury members. This cannot happen without additional court staffing, management systems and parking spaces. Why would parking be an issue. Courts don’t have sufficient parking for witnesses and jury members now and sign contracts for additional off site parking. One of the reasons you see so many police cars parked in the red. Which is now discouraged and costing taxpayers thousands of dollars for officers to park in parking lots now too.

Smaller courtrooms without jury boxes would have to be merged to accommodate jury seating. Fewer courtrooms will create more delays and larger backlogs not just in Family Law but elsewhere too in other civil and criminal case, causing a ripple effect through impacted court houses.

Jury members are paid each day $15.00 in California. In some states it is $40.00 a day. That’s going to add another $85 million to the court’s budget. That money has to come from somewhere. So you can see the issue of juries is very far from being simple or inexpensive to implement.

However, one of my primary concerns is the personal impact and hardships of this decision on the public. Let’s start with transportation issues. Not everyone owns a vehicle and public transportation is not always convenient or available near courthouses. Public transportation would be an additional cost to families.

Childcare is another issue. If the jury member is a single parent or has parenting time during jury duty how are children going to get to school if a parent must be at the courthouse at the same time? We aren’t connected to our neighbors the way we use to be and there may be no one available to help. Just like businesses, the public is going to face reduced wages, possible loss of employment and other emergencies that come into play depending on the number of days of jury service for each member.

If parents and non parents thought that they missed too much time from work now to attend court, the additional delays caused to pick a jury will add even more time to the process each time they go to court.  

And there are always unintended consequences on a scale this large – other expenses not anticipated where a government program is involved. More questions than answers at this point.

Can we reduce this impact. Yes. We could reduce the number of jury members from 12 or 14 to 6. We could limit the scope of juries to some areas of Family Law and not all areas as a starting point.

Vince; I think everyone understands that for California this would be a huge undertaking but what about smaller states. Would the impact be as significant and difficult to implement?

Catherine; Great question. Let’s use another state as a comparison

Let’s run the numbers for say New Hampshire. Obviously there is going to be a significant difference between the numbers for California and those of New Hampshire. New Hampshire is the 7th smallest state in the country. The court system serves a population of approximately 1.33 million people. There are 10 counties and more than 40 court buildings, 90 judicial officers and another 488 judicial branch employees. 

During their fiscal year 2013-2014, over 149, 568 cases were filed statewide in the Courts. Family Law filings accounted for 18,992 cases.

Population levels will automatically adjust the issues as to number of filings, courthouses, personnel and other issues etc. While there may be some variances specific to a state for any number of reasons, essentially, the impact is going to be equal to or close to the percentages of impact whether the state is California or New Hampshire to implement juries ~ just smaller. Which is why it is important to break the numbers down into percentages for comparisons. Obviously this is a best assessment without researching the numbers/percentages specific to all 50 states which I did not do prior to this interview.

Vince what are your thoughts on variables for different states? Do you think this is an accurate assumption?

 

Vince; Let’s move to the next talking point which is have juries proved more fair, reliable and Constitutional in criminal and other civil court cases?  And have they demonstrated they could function more effectively than a judge in Family Law?

Catherine;  As a retired law enforcement officer I can tell you without question that in criminal cases there are frequently significant disagreements on the outcome of a case regardless if the decision is made by a jury or a judge. Victims, defendants,

District Attorney, defendant’s attorney, police and the public in criminal cases.

Decisions by Juries have certainly not been without controversy in all areas of the court system. Without too much effort I could provide a long list of jury decisions that the public and involved parties disputed. Civil trials too. Same thing. Many corporations have appealed the decisions by juries.

Let’s take the current environment in our country right now. Rioting began after the decision by the Ferguson grand jury two years ago in the shooting of Michael Brown. It has continued to sweep the nation with grievous outcry against the decision made by the jury not to indite the officer after hearing all the evidence. The OJ Simpson in the death of Nicole Brown and Ronald Goldman of not guilty. Also a jury decision.

Juries are not some new untried idea in the last several years. We come into the discussion with a long history of data on juries in criminal and civil cases.

In fact, the number of decisions by juries, good, bad or objectionable may be equal to, better or worse than that of the decisions made by judges. But one worth considering in assessing the decision to implement jury systems in Family Law.

At least that was my perspective as I prepared for this interview. To my surprise what I learned is that research comparing the decisions made by juries versus judges is an area that has been under study for sometime now.

As early 1966 Harry Kalven and Hans Zeisel, asked judges in the thousands (7,200) to report both how the jury decided a case and how they would have decided if it had been a bench trial. In civil cases, they found an agreement rate between juries and judges at 75-80% on the issue of liability.

With regard to damages, judges would have awarded more in 39% of cases and less in 52% of cases. In criminal cases, they likewise found an agreement rate of approximately 75% between judge and jury.

In the majority of cases where judges reported favoring a different verdict from that reached by juries, juries were more lenient acquitting when judges would have convicted. In explaining the reasons for these disagreements, judges mentioned a variety of defendant characteristics capable of producing sympathy: age (i.e., youth or old age), gender, attractiveness, remorse, family responsibilities, and occupation

The original findings by Kalven and Zeisel have stood up well under the test of time. A later study by R. Perry Sentell found that a large majority of Georgia superior-court judges reported their agreement rate with jury verdicts in negligence cases as “about the same” as Kalven and Zeisel’s, and a recent study by Eisenberg and colleagues of judge-jury agreement in criminal cases.

In another study that I recall the longer a juror served on the grand jury the more the juror was aligned similar to judicial decisions. 

Do you find that surprising? I know that I did!

 

Vince; So how do you interrupt this data?

Catherine; Image if all of this data is correct. We spend all the time, money and effort. We commit to all the hardships on the public, businesses, pass the necessary legislation, find the money. We accept all of the consequences, delays and we find the improvement is so negligent that the cost and hardship was nowhere near justified.

Worse we should have known that going in because the data was there. We just chose to ignore it. Now we have to mop up another system, meant to improve the prior system and failed. Same old story. Another failed government program.

This is a gamble. Could Family Law data be the exception? Maybe, yes, absolutely. We don’t know. More questions. Do I believe that some cases will do better and some will do worse? Absolutely. Are the cases that do worse, justified? Are the cases that do better, justified? I don’t know. Again more questions than answers?

There are currently two states that have opened the door on this issue, Texas and Georgia. Both states provide a limited scope for juries to hear on some not all of the issues. Georgia divorce juries can decide alimony, child support and distribution of assets and debt. Custody of the children, though, is only determined by the judge. In Texas juries can determine custody but not the visitation schedule or child support. Texas juries also can hear cases where one parent seeks to terminate the parental rights of another or if a one is trying to prove paternity.

During fiscal year 2014 Texas had 174 jury trials. I was surprised the number was this low. Georgia Administrative of the Courts does not track number of trials by a jury and could provide any information.

Obviously going forward if juries are going to be considered on a larger scale we should start by finding out what Texas and Georgia have learned.

Let me toss the question back to you. What are your thoughts?

 

Vince; Concluding with our last subject what side do you come down on – for or against implementing juries in Family Law

Catherine; Vince had you asked me that question prior to preparing for this interview I would have said without hesitation that I do not endorse juries. With all the problems our current divorce and custody process deals with now attempting to implement juries on a wide scale basis could be a massive failure.  But looking with an eye to the future, and with modifications to smaller juries, limited scope, and additional improvements to the process of  Family Law, I believe that juries could absolutely be part of the future.

Vince; I am sorry we are nearly out of time.

Catherine; I think that it is important to note that even if we implement juries, their decisions – just as with judges will not be without controversy or consequences. To think bias does not exist and won’t impact juries the same as judges would be naive. In fact in several articles the deciding factor in choosing juries in Georgia hands down was because the attorney thought it would provide an advantage bias favorable to their client’s position/outcome.

.

Vince; Catherine if you would like to make a closing statement

Catherine: I want to remind listeners if you are a parent struggling with divorce and custody I urge you to seek out one of many support groups being offered all around the country and participate. You don’t have to go through the process alone. And you need more than an attorney in today’s divorce environment.

For listeners wanting more information on my company, I am on Twitter, Facebook, Pinterest, YouTube and Vimeo. My web site address is CustodyCalculations.com. The web site lists all of my contact information, emails, phone etc. if you wish to reach out and have a conversation on your specific divorce and custody I encourage you to do so.

Also, just a reminder to everyone listening to the show today, in addition to free ebooks that Vincent provides from his website, listeners can also receive a free copy of one my e/magazines. Simply go to our website, CustodyCalculations and enter your name and email address. We will forward a copy of the e/magazine to your inbox in a few days at no cost as a thank you just for listening.

Vincent it has been a real pleasure, thank you so much for the invite

SLIDE PRESENTATION BY AN ANONYMOUS THIRD PARTY THAT HAS SOME GOOD QUESTIONS, NOT THE RIGHT SOLUTOIN, BUT GOOD QUESTIONS:

ADVERSARIAL VERSUS INQUISITORIAL SYSTEM