Reducing the Costs of Divorce and Other Domestic Relations Cases – how about means testing?

I’ve heard of judges chastising parties for spending $250,000 in a divorce action fighting over a marital estate worth less than the costs of litigation.  And I’ve always been irritated by commissioners/judges who, for example, order subsistence-level parties to obtain a custody evaluation without giving any thought to how the parties (or a party) will pay for it.

I cannot in good conscience keep billing my clients at rapacious rates (and what’s sad is, if I do say so myself, my rates are reasonable as far as lawyers go (typically $3,000 deposit against which I bill at my hourly rate; $200 per hour), yet they are still way, way too high for the average consumer), and unbundled services and/or limited scope representation are—while laudable in their intentions—going to cause as many (if not more) problems as they solve (yes,  I am not afraid to state it).

Perhaps the  judiciary should mull rules or a policy of means-testing a litigation budget in divorce.  Like so:

Because we have official district court Financial Declarations (which I think are well-designed and well-structured), we should use them to determine the litigation budget and pacing.  At the very beginning of the case, the judge or commissioner would meet with the parties’ respective attorneys (the parties’ respective attorneys should not meet alone—that’s just a huge waste of time) and ask a few key questions:

1)      How much in assets and debt is in dispute here?

2)      What kind of litigation expenses are anticipated, i.e., will there be a custody evaluation, real estate appraisal, forensic accounting, independent psychological or medical examinations?

3)      In light of the parties’ financial circumstances, as reflected in their respective Financial Declarations, what kind of litigation budget (both as to money and as to time) does reason justify here?

4)      Will trial take more than one or two days’ time?

5)      Any other factors the court deems relevant to the issue of keeping family law case litigation expenses manageable and the case moving expeditiously.

Then an order should be entered that 1) sets the litigation budget; 2) sets the date by which the case will be tried, if not settled previously; and 3) gives the parties and their respective lawyers a “on-time on-budget”-style order which binds the parties and their lawyers to it (if a family member or friend tries to subvert the ordered budget by paying more under the table, the rule could be something along the lines of  such a person being held in contempt of court, with the crooked attorney being disciplined by having to pay treble what he/she received under the table or has to pay the whole litigation budget, etc.).

Make the parties pay a “completion bond” to ensure that the schedule is observed and if it’s not, have the bond cover sanction costs for the disobedient party who wastes time and/or money in contravention of the pretrial budget/schedule order.

The parties are thus given a date by which they have to complete the “project” and are given a budget within which to do it.  Failure to comply with the schedule (i.e., not getting the case settled or tried by the due date, or running out of litigation budget funds before trial) results in sanctions.  There would always be the right to approach the court and move to modify the project/the schedule in the event that unforeseen circumstances (real ones, not contrived ones) make the original schedule/budget unworkable or unfair.

There could always be a provision that if both divorcing parties want to opt out of the budget meeting and budget limit requirement, they can.

Divorce and other domestic relations cases are allowed to run amok!  It’s almost Kafka-esque that “pre-trial conferences” take place near the end of a case.  Pretrial conferences (and the silly Rule 26(f) meeting that never actually does what it’s intended to do and which the courts honor more in the breach) should be a joint venture between the court and the litigants, and the conferences should take place between the court and litigants at the commencement of a case, so that the benefits of pre-trial planning and organization are realized throughout the process.  So that the parties and their respective attorneys are given a very clear statement of when they are not merely expected, but mandated to have the case ready for trial or automatic sanctions arise.

What do you think?  Am I engaging in Utopian and/or unconstitutional fantasies?

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