More on Elkins 1-5

I probably won't submit detailed criticisms of the Elkins Task Force recommendations, but the report is really disappointing. Consider the issue of live testimony which led to the Elkins decision in the first place. The Task Force recommends:

Good Cause Exceptions. A finding of good cause not to receive live testimony should be made on a case-by-case basis.

That is lame. The Calif. supreme court said that the family court had to hear live testimony according to the rules of civil court. How complicated is that? Why make some new rule that lets the judge exclude live testimony whenever he feels like it?

Recommendation no. 2 is to throw more money at attorneys. They want more lawyers, more govt funding for lawyers, more encouragement for people to get lawyers, and more court orders to pay lawyers. It reads like it was written by the lawyer lobby.

I think that lawyers make the system worse. The more this recommendation gets adopted, the worse the system will be.

Recommendation no. 3 is for better Caseflow Management. This would be good if it had meaningful time limits on decision-making. Instead it makes vague recommendations like:

Rules and procedures should be adopted that efficiently allocate judicial resources in a manner consistent with the substantive and procedural complexities of each case to enable parties to resolve their family law matters in a timely manner with appropriate assistance.

Yeah, I am all in favor of efficiently allocating judicial resources, but how is that going to happen?

A couple of pages later, it gets to recommendation 3.12, where it actually makes a recommendation in the spirit of the Elkins charter. It says that delaying tactics in the family court should be subject to fines just like the civil court.

Recommendation 3.15 says:

Time standards. There are currently no time standards for family law matters other than a limitation that the parties to a dissolution cannot be restored to the status of single persons until six months have elapsed from the date of service. ... realistic goals for reasonable case completion by the courts might include these: ...
• Ninety percent of cases should be resolved within 18 months from petition to judgment.

Again, this is lame. If civil and criminal court can have time standards, why can't family court? Why just a goal of 90% within 18 months? It could be 100% within 6 months.

If someone tries to get a restraining order against you, you have a right to a hearing and a decision within 3 weeks. If someone accuses you of being a child abuser, you may not be able to get a decision within 18 months.

Recommendation 4 says, "The rules should be written in plain language and organized logically." I agree, but there are no substantive suggestions. The state did reorganize the rules more logically 5 to 10 years, and I am sure that the authors think that they already did what can be done. Without some concrete suggestion, I don't see how any good will come of this recommendation.

Recommendation 5 says:

Upon deciding to take the testimony of a child, the judicial officer should balance the necessity of taking the child’s testimony in the courtroom with parents and attorneys present with the need to create an environment in which a child can be open and honest.

Again, this recommendation is not directed at giving family law litigants the protections of civil court. It is the opposite. They don't take backroom testimony from children in civil court. Honesty in a child should not be equated what the child is induced to say in the parents' absence.

A civil court litigant has the right to be present during all testimony, and to be able to ask his own questions. It should be the same in family court. I thought that was what the Calif. supreme court was trying to say, and what the Elkins Task Force was supposed to help implement. It appears that they spent two years undermining that goal.