California’s underfunded and overwhelmed public courts have been
a major issue for the state’s ability to administer justice, particularly
for family law matters. According to the Judicial Council of California’s
2018 Court Statistics Report, there were 375,529 family law cases filed
in the Fiscal Year of 2016-17. The report also indicated a judge-to-case-filing
ratio of roughly 1 to 3,000.
Family law courts have notoriously been among the busiest court departments
in California. Symptoms of the backlog can be gleaned from court rules
and judicial policies that emphasize private settlement through alternative
dispute resolution programs and the implementation. Significantly, California’s
judge pro tempore program was instituted to combat packed judicial dockets
and court backlog.
What Is a Judge Pro Tem?
The judge pro tempore program was a program that gained traction in the
1980s as method of alternative dispute resolution where the parties to
a legal action agree to choose a “judge pro tempore” (temporary
judge) to preside over their case for a fee. For the most part, a judge
pro tempore was a retired judge who returned to public service as a private citizen.
However, a judge pro tempore was not restricted to retired judges. Pursuant
to article VI, section 21, of the California Constitution, the California
Rules of Court allow qualified members of the legal community –
including attorneys who still practiced law –to assume judicial
duties for cases filed in court as temporary judges. It wasn’t long
until a family law attorney spent the morning advocating on behalf of
a client in a divorce case and then presided over a different child custody
case as a temporary later that day.
Litigants could take advantage of the temporary judge program and bypass
the glacial speeds of the Superior Court calendaring system if they (1)
agreed with the opposing party to use a private judge, and (2) could afford
to pay the private judge’s fees.
This arrangement seemed like a win-win scenario for all interested parties:
retired judges and private attorneys could earn extra money as a temporary
judge, California courts had extra hands to help with the their stacked
dockets, and litigants had a fast-pass ticket to resolving their claims.
Drawbacks of Temporary Judges
One of the significant downsides to the private judging system is that
it stratifies access to justice, creating a “pay-to-play”
element to the judicial system. To illustrate this point, virtually all
Hollywood celebrities hire a private judge to handle their divorce proceedings.
However, for the majority of the cases in the public court system, most
litigants don’t have the financial resources to benefit from the
private justice system effectively.
Another drawback of the private judging system is its potential for bringing
out collusive behavior. Jill Hers, a family law attorney, addressed this
risk in her 2009 article feature in Family Law News, “Ethical Considerations
in Appointing our Colleges as Private Judges.” Hersh warned the
family law community about the potential conflict of interest arising
from a situation where an attorney selects another practicing attorney
as a private judge:
“Many of us refer cases to each other and, from time to time, send
a bottle of wine or some equivalent gift as a token of our appreciation…many
of us derive business, ergo income, from the referrals by our colleagues…There
are irreconcilable scenarios and, under the best of circumstances, invite
significant questions by the client in each case. For example, the client
in the litigation may be concerned that my decisions in her case are r
were impacted by my need to curry favor from the judge in the other case.”
Call Hanson, Gorian, Bradford & Hanich at (951) 506-6654
California divorce cases can be expensive. When the parties are not open
to resolving their conflicts through compromise and mutual understanding,
divorce litigation needlessly can drag out for years. However, a skilled
family law attorney can make sure opportunities for settlement, compromise,
and negotiation are not overlooked. At
Hanson, Gorian, Bradford & Hanich, you can rely on us to provide you with sound, comprehensive legal advice
to help ensure you obtain a fair result for your case. We are prepared
to zealously advocate for your rights when compromise is not a realistic
option. We have offices conveniently located in Temecula and Riverside.
Contact our office online
to schedule a free case evaluation with a member of our legal team about
your family law or divorce issues today.