Reform or Wreckage?

By most accounts, Jeffrey Elkins was confident and brash--bordering on cocky. As the CEO of a fledgling telephone company, he had the brains and bravado to help plan an antitrust strategy against Pacific Bell that led to a $7 million jury award.

But as a self-employed consultant and pro per litigant in Contra Costa County's family law court, Elkins lasted less than five minutes before giving up to his ex-wife, Marilyn, nearly all of the property they had accumulated during 21 years of marriage.

A local court rule and trial scheduling order did him in: Because Elkins failed to file the requisite pretrial declaration to establish the admissibility of his evidence, the judge barred 34 of the 36 exhibits he hoped to introduce.

Exasperated, Elkins told Judge Barry Baskin: "I came into the trial with the intent of presenting my position, and I'm being cut out of that completely with only reliance on two exhibits. ... [N]o way can [they] defend my position."

Without a word of testimony from Elkins, the trial court opted to proceed by quasi-default, awarding Marilyn all that her counsel requested.

But Elkins's luck eventually changed. After a summary rejection by the court of appeal, the California Supreme Court reversed, holding that the superior court had violated the hearsay rule by admitting written declarations in lieu of testimony (Elkins v. Superior Court, 41 Cal. 4th 1337 (2007)).

The Supreme Court's ruling was unanimous, but the decision's dicta bore the unmistakable stamp of its author, Chief Justice Ronald M. George, who concluded by commenting, "Courts must earn the public's trust." He then added a final footnote recommending that the state's Judicial Council establish a task force to propose family law reforms, focusing especially on self-represented litigants: "Proposed rules could be written in a manner easy for laypersons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." (Elkins, 41 Cal. 4th at 1369 & n.20.)

"The Elkins case had 'Supreme Court' written all over it," recalls Garrett C. Dailey, the Oakland sole practitioner who represented Elkins on appeal. Dailey had argued for a new trial, claiming that the local court rule and order conflicted with various provisions of the Evidence Code and Code of Civil Procedure.

"It was also a total denial of due process--and the Supreme Court at oral argument was brutal," Dailey says. "Well, I got to skate. But the other attorneys had a rough time."

One of those roughed up during oral argument was Jon B. Eisenberg, an appellate specialist now with Eisenberg and Hancock in Oakland who had represented the superior court. "It was a suicide mission--to defend an indefensible court rule," Eisenberg recalls. "I did my duty to the system and I tilted against that windmill until the bitter end. They just beat me up."

Aside from his kamikaze role, Eisenberg says, the case was a legacy-builder for Chief Justice George, who stepped down in January. "Elkins felt like he wasn't given the opportunity to tell his story," Eisenberg says. "More than anything else, that fueled the Supreme Court's decision to take the case, which was a poster child for Ron George's vision of providing access to justice."

Less than a year later, in May 2008, the Judicial Council launched the Elkins Family Law Task Force. Spots on the panel were coveted. More than 200 people applied--the most ever for a judicial task force--but only 38 were appointed, including appellate justices, judges, court commissioners, attorneys, facilitators, mediators, and court and legislative staffers with varying family law experience.

Despite their different backgrounds and interests, the members were collegial. "There were some big egos, but I don't remember a harsh word or a slight," says Peter M. Walzer, founding partner of Walzer & Melcher in Woodland Hills. "Every voice seemed to have some weight."

Stephen B. Ruben, a certified family law specialist in San Francisco, adds, "We all found common ground and looked at our own little issues as no longer sacred."

Members say they spent as many as 1,500 hours on the job. After two years of debating and digesting public input, they issued a report in early 2010 with 21 main and 117 specific recommendations, grouped by category. First on the list: "Create efficient and effective procedures to help ensure justice, fairness, due process, and safety."

The California Assembly Judiciary Committee quickly translated the core recommendations into law. Perhaps the most significant reform reflects the Elkins case itself. AB 939, enacted last September, requires live testimony at the hearing of an order to show cause or notice of motion, unless the parties opt out or the judge finds good cause to refuse it. (Cal. Fam. Code § 217.) Under an accompanying revised rule that took effect last month, written declarations are limited to ten pages and reply declarations to no more than five. (Cal. Rules of Court, Rule 5.118(1).)

AB 1050, also enacted in 2010, allows children age 14 and older to testify at custody and visitation proceedings beginning January 1, 2012. (Cal. Fam. Code § 3042(c).) Rules of court related to this change are still being vetted by various committees, and most won't be implemented until later in the year.

But for all the Elkins task force's chumminess and good intentions, it may have missed its mark: Many family law practitioners say the recommendations could actually wreak havoc with the panel's stated goals.

"With the Elkins reforms, there's this perception we'll all hold hands and go dancing down the lane--and it isn't true," says Daniel S. Harkins, a sole practitioner in San Ramon who represented Marilyn Elkins at trial and was her cocounsel on appeal. "The task force focused on process and making sure people had due process, which is admirable. But what has to go hand in hand is dispute resolution, how these disputes are being resolved."

Harkins adds, "I don't buy the argument that everyone wants to have their day in court. Most just want to know how to divide property and pay support without having to spend a fortune."

At least one family law practitioner harbors something akin to a conspiracy theory about the task force recommendations. "What sleight of hand was going to make all this possible?" asks Thurman W. Arnold III of Palm Springs. "It's the gap between the high ideas and reality. I have a suspicion that some of the people behind the Elkins task force wanted to help crash the system sooner, and make changes that will be more positive and lasting."

Much of the criticism relates to fears that the changes will worsen California's already serious family court backlog. Just after the live-testimony mandate took effect, for instance, Beverly Hills certified family law specialist Alexandra Leichter tried to schedule a trial in Los Angeles County Superior Court. After snagging a few hours of time over a couple consecutive days, she was told that the next available court date was four months away.

"My clients are pissed off," Leichter says. "And I can't figure out how a judge can remember the case four months from now--especially when, in between, he'll have heard at least a thousand other cases. We had some difficulties with this before, but the Elkins task force changes magnified them."

Another lawyer she knows was given a court date nearly a year away for a long-cause hearing, Leichter says. She predicts that more clients who can afford to hire private judges will take that alternative. "Private judges are a necessary byproduct--again, because of the Elkins task force," she says. "But that's not really justice, to pick someone outside the civil court system to adjudicate your case. It's just not."

Gretchen W. Taylor, a retired family law commissioner who is now a mediator in La Quinta, agrees that the recent changes will encourage two tiers of justice--private judges for those who can afford them, and clogged family law courts for those who can't. "My mediation practice might benefit from the fact that no one can get a trial date until next year," Taylor says. "But that doesn't address what Elkins was trying to say: People at the lower half of the spectrum--the pro pers--need to be served by alternative methods."

Task force member Walzer, however, argues that emphasizing live testimony may benefit litigants, especially the pro pers. "Written declarations are beyond the capabilities of most of them," he says. "They will say: 'I want my day in court.' And the judges who are bellyaching about taking live testimony were also bellyaching before, about reading lengthy declarations."

Another perverse consequence of the reforms is higher legal costs. In written comments to the task force, Encino family law specialist Leslie Ellen Shear opposed the recommendation on limiting the page length of declarations. "My practice focuses on custody, parentage, and jurisdiction," Shear wrote. "Each of those issues has complex burdens of proof. So when I envision practicing under this rule, I realize that my initial retainers would double. This rule is simply unworkable."

Riverside County, for one, recently stopped assigning trial dates in dissolution cases until after the parties file a pretrial brief and statement with a mandatory attachment, tellingly labeled "Elkins Forms." The multipage document--which asks about everything from child custody to spousal support, including Family Code section 4320 factors--would seem nearly impossible for most pro pers to parse.

Arnold, the Palm Springs attorney, estimates his fees for completing that paperwork could run between $2,000 and $8,000.

If the required forms seem flummoxing, some practitioners say pro pers will be at least as daunted by the prospect of presenting live testimony. As Chief Justice George asked during oral argument, "Should it count against [Elkins] that he did not understand the rules of cross-examination?"

Another goal of the Elkins task force was to clamp down on the "local rules" that make court procedures around California uneven and uncertain. But family law practitioners already cite inconsistencies in how the new statutes and rules are applied.

Roberta Bennett of Bennett & Erdman recently put the suspicion of inconsistency to an empirical test, inviting 20 judges for a brown-bag lunch at Department 2 of the L.A. County superior court to explain to practitioners how they'll administer live testimony and declarations.

"One judge said: 'I'll take the declarations and, depending on time, use them as direct testimony subject to cross-examination,' " Bennett recalls. "Others reported they would say: 'Call your first witness.' And some said: 'Give me a declaration detailed enough to allow me to make interim orders if I have to continue your case for two or three months.' We're all over the map here."

Realistically, though, the biggest impediment to genuine reform may be the state's budget crisis--in particular, trial court funding. Within the profession, family lawyers are scorned even by many of their colleagues, who sniff that they do little more than divvy up pots and pans. This attitude carries over to family courts as well--traditionally the poor stepchild that receives only 10 percent of the available court resources. And with $200 million trimmed from the courts' budget in March and additional huge cuts threatened, there's little reason to believe money will be earmarked for family courts.

"Elkins now mandates extra work without any of the resources necessary to do that work," says mediator Taylor. "It's sort of a poke in the eye to come along and attempt to change the system without the ability to complete reforms."

Task force members deny that they turned a blind eye to the state's budget. "We took budget issues into account but didn't hold back because of them," says Judy B. Louie, director of San Francisco's ACCESS Center, a legal education and self-help service run by the superior court. "We hope the recommendations can be implemented, but for some counties it may be a three-year or a ten-year plan."

And Walzer adds, "The task force mandate was to make sure that everyone would have his or her day in court. So we could either throw up our hands, or we could do what we did. Personally, I'd rather do it and see what happens than wait for the perfect moment."

Critics of the recommendations say another impediment to reform is that many family court judges lack experience and enthusiasm for the work. "When you bring in judicial officers who have no family law background--and most don't--they have to learn on the job, and it's a steep learning curve," says Beverly Hills practitioner Leichter. "You must be cognizant of as many as 100 issues in these cases. If you've been on the bench for less than two years, you really don't know family law."

The high demands of the job and the additional proceedings mandated by the task force highlight another issue: judicial crankiness. "The crankiness comes from frustration," Bennett says. "Judges are working through lunch. They're working from 5 a.m. and they're leaving court late with a big suitcase. These judges are getting burned out."

And there are not enough of them, cranky or not. The Judicial Council reports that family courts are short an estimated 274 judges. A 2009 report found that only 9 percent of judicial officers' time is devoted to family law, even though at least 19 percent is needed to cover the workload. One of the task force's key recommendations is to allocate the state's judiciary budget according to the family courts' workload, shifting existing funds from other areas.

Of course, for tired and cranky judges the natural reaction is to run--or at least to limp away. "New judges, by and large, are very smart and industrious," Leichter says. "But the truth is, after they're on the bench for six months they often find they have to work much harder than they ever did in private practice, and they can't handle it. We can't keep judges because we roll over them like steamrollers."

Task force member Ruben says the group tried to address concerns about specialization and workloads. "We didn't get a mandatory order that presiding judges must appoint certified family law specialists," he says. "We looked at it from a positive way, encouraging family law specialists to apply for family court, and fostering a training program. Once you get specialists to handle the job, then it would seem logical that they'd stay in the courts longer."

Ironically, one of the consequences of the new laws prompted by the Elkins task force may be the creation of a third tier of justice for pro pers--the original target of the clarion call for reform. The panel reported that in many communities, more than 75 percent of family law cases have at least one self-represented party. It recommended beefing up self-help centers--but that will take time and money to accomplish. In the meantime, pro pers--many of whom need language interpreters--are subjected to a mishmash of guidance. Those in Ventura County have access to touch-screen kiosks; in neighboring Los Angeles County, according to one court watcher, pro pers assemble in "a scary line out the door by 8:30 a.m."

A few family law practitioners liken the current efforts to Family Law 2000, a previous attempt by the Judicial Council to assist pro pers. "One of the issues it addressed was the increasing number of pro pers whose needs weren't being met," says Elkins task force member Lorie S. Nachlis, a principal at San Francisco's Nachlis & Fink. "It proposed grand reforms, but my concern was that it was just an effort to make family law more like an administrative proceeding."

Tellingly, few in the family law bar can even recall what the proposed reforms of Family Law 2000 were, or what prompted them. But they all remember that not much happened.

It's impossible to put a neat bow on the package of reforms that the Elkins task force delivered--and too soon to tell whether they will be futile or forgotten.

For now, the legacy seems to be that right-hearted thinkers came up with wrong-headed solutions for our times. But there is a sort of embarrassed thankfulness that someone somewhere shone the light on a court system badly in need of fixing--and most applaud that.

Jeffrey Elkins, the namesake of the task force, will not be one of them. Not one to shy from publicity, he told local reporters the day the state Supreme Court decided in his favor that he felt vindicated. "Divorce is a tough thing to go through," he said then. "I'm just hoping I can now go back to court to ... come up with a solution and finally get this thing behind us."

But he never did get his day in court.

Elkins died in 2008, less than a year after the ruling that became the catalyst for the Judicial Council's current efforts.

Contributing writer Barbara Kate Repa is a lawyer and editor in San Francisco.

---