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Tag: civil procedure

Reform that reforms nothing

Commencing May 21, 2022, a new rule of the Utah Rules of Civil Procedure will be in force: Rule 100A. While I love the intention behind Rule 100A, reviewing the rule reveals it to be poorly structured, and I do not expect it to be followed strictly or even earnestly by most courts and attorneys. As a consequence, I do not expect Rule 100A to do much to expedite or otherwise improve the domestic relations case process.  

Here is the text of the rule:  

Rule 100A. Case Management of Domestic Relations Actions. 

(a) Case management tracks. All domestic relations actions, as defined in Rule 26.1, will be set for a case management conference before the court, or a case manager assigned by the court, after an answer to the action is filed. At the case management conference, the court or a case manager assigned by the court must determine into which of the following tracks the case will be placed: 

(1) Track 1: Standard Track. This category includes all cases that do not require expert witnesses or complex discovery. The court will certify a Track 1 case directly for trial. If the parties have not yet mediated, the court will order the parties to participate in good faith mediation before the trial takes place. 

(2) Track 2: Complex Discovery Track. This category includes cases with complex issues that require extraordinary discovery, such as valuation of a business. For a Track 2 case, at the case management conference the court will set a discovery schedule with input from the parties and schedule the case for a pretrial hearing. 

(3) Track 3: Significant Custody Dispute Track. This category includes cases with significant custody disputes, including custody disputes involving allegations of child abuse or domestic violence. For a Track 3 case, at the case management conference the court and parties will address: 1) whether a custody evaluation is necessary, and, if so, the form of the evaluation and appointment considerations; and 2) whether appointment of a private guardian ad litem is necessary, and if so, the scope of the appointment and apportionment of costs. The court will prepare and issue any resulting orders appointing a custody evaluator or guardian ad litem and schedule the case for either a pretrial hearing or a custody evaluation settlement conference. 

(b) The court may set additional hearings as necessary under Rules 16 or 101. Nothing in this rule prohibits a court from assigning a case to more than one track, at the court’s discretion, or otherwise managing a case differently from the above guidelines for good cause. 

My comment and critique follows below.  

    • After the answer to the complaint or petition for divorce is filed, the case will be set for a case management conference before the court, or a “case manager assigned by the court,” (as of the time this blog post is written we have no idea what “a case manager assigned by the court” is, what a “case manager” does, or who can qualify to be a “case manager”). Case management conferences usually go nowhere because nobody wants to be held to a deadline if he/she can avoid it, so nothing in Rule 100A gives me any reason to believe that a Rule 100A case management conference will be any exception to the current SOP. 
    • Moreover, because At the case management conference, the court or a case manager assigned by the court must determine on which track the case is: 
    • Track 1 cases are cases “that do not require” expert witnesses or complex discovery. Track 2 cases are cases with complex issues “that require” extraordinary discovery.  
    • How anyone would or could know whether a case requires expert witness or complex discovery at this early stage of the case the rule does not explain.  
    • While I acknowledge that many divorce cases are not complex, what careful attorney or litigant would want to forego the option of expert witnesses or extraordinary discovery without first conducting basic discovery? I wouldn’t.  
    • Track 3 cases are those that involve “significant custody disputes.” In actual practice, with rare exception, any case involving a dispute over the custody and parent-time awards involves “significant custody disputes.” Any disputed child custody case is going to qualify for Track 3. Adhering to Track 3 constitutes business as usual; it would do nothing to expedite or improve the domestic relations litigation process or experience.  
    • In my opinion, in light of A) far faster, more accurate and probative, and less expensive alternative to the conventional custody evaluation process; and B) the way custody evaluations are performed in Utah, virtually every custody evaluation is unnecessary; and  
    • Rule 100A does not articulate any criteria by which the question of whether a custody evaluation “is necessary” is resolved.  
    • As to determining “the form of the evaluation,” I have yet to have a court determine the “form” of the evaluation when I have proposed certain elements of the form and of the process to be followed. Most judges and commissioners avoid addressing the matter altogether by claiming (falsely) that the form and process of the evaluation is dictated by the evaluator (which is nonsense; while the evaluator certainly can request that the evaluation proceed under certain terms and conditions the evaluator proposes, nowhere in Utah Code of Judicial Administration Rule 4-903 (which governs the procedure for seeking and performing custody evaluations) does it give the evaluator absolute control over the “form of the evaluation”).  
    • As to “whether appointment of a private guardian ad litem is necessary,” rarely, if ever, have I experienced a guardian ad litem (GAL) adding value to the fact-finding in or the just resolution of a case. GALs are generally even less useful than custody evaluators. Where a custody evaluator and GAL are appointed, the result is wasted time and money, as well as confusion.  
    • I do not see why under tracks 2 and 3 a trial date is set and the other deadlines for the case determined by working backward from the trial date. Setting a trial date and then setting the other deadlines by working backward from the trial date appears to me to be an effective way of ensuring that the parties work more expeditiously than setting the trial date after the parties finally determine that there is nothing more to do (or claim that they need to do) pre-trial.  

I predict that Rule 100A will go down in history, as are most so-called improvement efforts of the court system, as a well-intentioned half measure, i.e., one that was neither crafted nor implemented well.  

Utah Family Law, LC | divorceutah.com | 801-466-9277

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