Family
Jul. 30, 2002
Judges' Chambers Conferences Cause Problems
Forum Column - By Fred Silberberg - Many family law judicial officers like to conduct business in chambers. Many attorneys like to request chambers conferences when they are before the court. Members of both the bench and bar like to avail themselves of this process for numerous reasons. However, the practice of conducting business in chambers is one that can be very disconcerting to many family law litigants. For many reasons, it is time to rethink this practice and bring matters out into the open.
By Fred Silberberg
Many family law judicial officers like to conduct business in chambers. Many attorneys like to request chambers conferences when they are before the court. Members of both the bench and bar like to avail themselves of this process for numerous reasons. However, the practice of conducting business in chambers is one that can be very disconcerting to many family law litigants. For many reasons, it is time to rethink this practice and bring matters out into the open.
Judges and lawyers sometimes prefer to handle family law issues in chambers for many reasons. Family law litigation is highly emotional, and people are not at their best when they are embroiled in it. Parties can become hostile, unreasonable and inflexible about settlement. They sometimes demand that their attorney take certain positions, even when it is not appropriate to do so.
In these situations, it can be beneficial for the court to try and give indicated rulings in chambers, make suggestions to resolve situations or attempt to have honest discussions outside the presence of the unwieldy client.
Things also can proceed at a faster speed if the judicial officer is able to sit in chambers, call in the attorneys case by case, and try to move things along rather than if each matter is called in the courtroom and procedural formalities are followed.
It is sometimes easier for the judge who has 20 difficult cases on her docket that day to have counsel explain to his or her client why a position can't be taken or a decision made rather than doing it herself from the bench.
While there are many reasons from the perspective of both counsel and the court to handle things in this manner, the point of view of the litigant is just the opposite. Parties want to see how their case is decided, and they want to hear what the judge says. They don't want to be left sitting in the courtroom only to have their lawyer repeat the judge's statements.
And although lawyers would not purposely misrepresent a court's statements to their client, it is human nature to not repeat things exactly as they were said. There is, therefore, some benefit for litigants to hear things directly from the judge.
Moreover, when the lawyer must repeat the judge's message to an agitated client, the client inevitably believes that something pertinent to his or her position was missed or that his or her position wasn't properly advocated. This places counsel in the awkward position of having to reassure the client that this did not occur.
The practice of deciding matters in chambers also can cause litigants to distrust judges. If a lawyer comes back with a message that the judge does not like a particular position or finds it unreasonable or not legally supportable, a litigant may take that as a message that the judicial officer does not like him or her. If the judge explained the position directly, the litigant might understand the judge's point of view or basis for the decision.
Some attorneys request a chambers conference because they think it will give them an idea of where the judge is on a particular position so they can figure out how to argue if the matter goes on the record. Other lawyers like these conferences because they think it gives them the opportunity to "schmooze" with the court in the hope that they will be looked on favorably when the decision is made. None of these tactics are inherently fair.
There are other reasons to curtail the practice of conducting business in chambers. Because court reporters are not present, there is no way of looking back to see what was discussed. Courts hear hundreds of cases each month. It is impossible to remember the facts of each one. Attorneys may try and remind judges what happened in the past, but it is not the same as reading it from a transcript.
Most important, an often overlooked reason for putting things on the record is that we live in a litigious society. Malpractice claims against lawyers are on the rise, as indicated by the huge increase in insurance premiums for attorneys this past year. Transcripts can help protect counsel. Written proof that something was advocated properly before a court can protect a lawyer who is later accused of malfeasance.
One of the hallmarks of our legal system is that it is open to the public. Public accountability is what makes our system different from that of many other countries. Family law cases are part of that system. The same issues of accountability apply here, just as they do in criminal court or civil trial courts.
Fred Silberberg is a certified family law specialist with offices in Century City.
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