With so many of us working remotely, the June issue of BarTalk is a digital-only issue. Watch for our next print issue in October. 

Why Not a Two-Tier Family Justice System?

Saying there’s access to justice without access to services is a trick those with resources play on those without.

Why Not a Two-Tier  Family Justice System?

Saying there’s access to justice without access to services is a trick those with resources play on those without. Our system is designed to work best with two experienced and knowledgeable lawyers putting forward the best version of a litigant’s case.

The clear majority of people in the family court system can’t afford or don’t want to pay for a lawyer. They’re mostly one-time, at best infrequent, users of the system and they feel the system isn’t fair. It’s not designed for those struggling to navigate a system that doesn’t want them, even though it’s presumably there to serve them.

We’re not the first to wonder if the traditional court system is providing justice when procedure and form may prevent a concerned judge from getting the substantive information needed to make a meaningful decision.

Oregon’s solution

The Oregon Informal Domestic Rules Court (“IDRC”), in force since 2013, gives us an alternate path to justice without tearing down the current system.

It’s available wherever both parties opt in, whether they have lawyers or not, in which the traditional rules of evidence and procedure are waived in favour of a two-hour hearing in which each party speaks for themselves. The judge is involved asking questions to get the information needed for an informed decision. No cross-examination is allowed, but each party may suggest questions they want the judge to explore. No witnesses are called – so neighbours and friends don’t end up taking sides. Any evidence is allowed – hearsay, texts, emails, phone photos, letters, reports, etc. – subject to the judge’s ruling on weight. And the judge may adjust the rules at any time.

If you want to cross examine the other side, to present evidence from the school or friends, or challenge a report, don’t opt in, the choice is yours. If you have a lawyer, he or she may offer you assistance and advice during the process but may only address the court to summarize the issues and present a brief legal argument. Any family law matter may be dealt with and the parties file parenting plans in advance.

The entire proceeding takes two hours and a decision is rendered that same day, or very shortly after, in the form of an order to be entered, so there’s no delay between an order being issued and taken out.

Judges and lawyers agree the IRDC reduces conflict, gives parties a better sense of procedural fairness, eliminates the worry about a judge being biased against, or overly helpful to, a self-rep, reduces judicial time, and places everyone on an even playing field. Using a lawyer for the IRDC costs less, inviting more people to hire them, and a practice of focused unbundled services has arisen because lawyers know what’s needed to allow a self-rep to be effective in this sort of hearing.

Aside from the obvious satisfaction this has brought to people without counsel, it has had the unexpected benefit of being especially well adapted to abuse cases because the victim isn’t grilled by the other side and they feel the court is more engaged in the process than being a cold and distant adjudicator.

The Oregon IRDC has now been adopted, with variations, in several American jurisdictions. Why not here? Why can’t we open a second tier of family court justice that clears away the institutional benefits given to those with lawyers? Our family law system should be built for all litigants, not the lawyers who represent a minority of them.