Yes, and for good reason. First, let me be unusually but sincerely candid: many judges and many of the actions that judges take disappoint me. There are some excellent judges on the bench who are clearly skilled in the law and know how to apply it accurately, justly, and equitably. Would that all judges lived up to this standard. But not all judges do. I mention this so that the context of my answer to your question is clear.
Being a judge is, in my opinion, mostly a thankless job. Sure, there are some obvious perks to being a judge, including, but not limited to, a good salary, state and federal holidays off, most judges receive a generous pension when they retire, the prestige of being called “Your Honor,” but the burdens of being a judge are in some ways unimaginable. Can you conceive of sentencing someone to life in prison or death? Or even sentencing someone to 5 to 10 years in prison when you’re not certain of his or her guilt? Can you imagine what it must be like to spend your work week, week after week, hearing hundreds of stories of lying, cheating, robbing, destroying property, assaulting, raping and murdering? It all takes an inevitable toll on even the strongest of people. Those judges who do the best they can and do the job well day after day, year-over-year deserve not only our respect, but our sympathy, our thanks, and support.
All that stated, there are clearly some judges who are not cut out for the job and need to quit. Some need to quit because they are not competent as judges. Some need to quit because, while they might have been up to the demands of the job in the beginning, they aren’t anymore. Some need to quit before they become so jaded that they cannot give the job and the people who come before them the attention both the job–and the cases they hear and decide–deserve.
Utah Family Law, LC | divorceutah.com | 801-466-9277
With rare exception, the family law attorneys who offer services at a big discount are either 1) incompetent and inept attorneys or 2) attorneys whose source of income or main source of income does not come from paying clients.
Attorneys who are incompetent and inept usually (but not always) offer services a rate much lower than the skilled attorneys because the most they can charge must be substantially less than what the skilled attorneys charge.
Attorneys whose source of income or main source of income does not come from paying clients are attorneys who work for law offices that offer their steeply discounted services to the poor, which means that if you are not poor, you cannot qualify for the steeply discounted services.
There are many possible reasons. Lawyers are notorious for being hard to reach and for being unresponsive and nonresponsive.
If you aren’t paying your lawyer, don’t be surprised if you’re being ignored and don’t wonder why.
But if you are paying your lawyer (in full and on time), there are still many possible (common) reasons could include, in descending order of the most likely explanations:
Your lawyer has way too many open cases and has thus rendered himself or herself unable to give you and your case the attention they both require.
Your lawyer is incompetent, and so your lawyer avoids your calls and emails to avoid having to do hard work and/or give you bad news about how he or she has screwed up.
Your lawyer is lazy and thus does not respond to you in a timely manner.
Your lawyer doesn’t care about your case enough to give it the attention it requires.
Utah Family Law, LC | divorceutah.com | 801-466-9277
There is nothing a GAL could learn how to do that a judge cannot also learn how to do equally well.
This post is the ninth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
There is nothing a guardian ad litem could learn how to do and then do that a judge cannot also learn how to do equally well and do equally well.
Some people try to make a (false) distinction between the effect of a judge questioning a child and the effect of a guardian ad litem questioning a child.
Up until a certain age, we all know that children have no idea what the difference between a judge and a lawyer is; therefore, if they’re not aware of any difference between the judge questioning them and a GAL questioning them, the effects of the questioning cannot be any more traumatic when the judge conducts the interview then when a guardian ad litem conducts the interview.
But let’s assume that we’re dealing with the interview of a child who is 14 or 15 years old or older. At that age, one might expect a child to know the difference between a judge and a lawyer. The child might even realize that the judge is the one who ultimately makes the child custody and parent-time decisions. So what?
If a guardian ad litem sat down with a child and told the 14+ years old child, “Hi, I’m Eric, and I’ve been asked to help you, your parents, and the court find out what you want and need and what’s best for you and your family when it comes to where you and your siblings live after your parents get divorced. I’d like to talk about that with you now for the next hour or so,” how would the effect on the child be any different if a judge sat down with that same child and said essentially the same thing? The answer is it clearly would not be any different merely because the one asking the questions is a judge instead of a GAL.
There is nothing about judges talking to children that is inherently harmful, just as there is nothing about guardians ad litem talking to children that inherently has a beneficial or benign effect on the child.
Claims that judges questioning children does children harm require us to presume that would be because of their status as judges, because all judges are insensitive and incompetent questioners, or both. Obviously, neither premise is true. For it were shown to be true that a judge is insensitive and/or incompetent, then the problem wouldn’t be whether the judge interviews the children, but whether the judge can be trusted to act in the best interest of the children in the first place.
This post is the eighth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
To conclude that judges interviewing children harms them rests on the false premise that judges are insensitive and/or incompetent. There is obviously no inherent difference between having a judge interview a child and having a guardian ad litem interview a child. Lawyers and judges know that there is nothing about a guardian ad litem that is any better or worse than a judge when it comes to ability to question children. Judges are former lawyers, after all.
To conclude that judges who interview children inherently harm, or inherently expose children to undue risks of harm must necessarily rest on the premise that judges who interview children are insensitive and/or incompetent. For all my criticisms of the legal system, I would be lying if I claimed that all or most or even a statistically significant number of judges are too insensitive and too incompetent to question children about child custody issues without harming them any more than an interview conducted by a guardian ad litem or custody evaluator would harm children.
If a judge were to claim that his or her ability to question children is worse than a guardian ad litem’s ability to question children because the judge lacked GAL training, then the problem would clearly not lie in the judge’s status as a judge but in a lack of training.
GAL training is a matter of hours, not years or even months. So, the training and skills gap between a trained GAL and an untrained judge could be closed quickly and easily by the judge getting that same GAL training. It wouldn’t even cost the judge any money because the Utah State Office of Guardian ad Litem has offered to provide judges with GAL training free of charge.
Case files for child custody cases are classified as private and not accessible to the public, so unless the child is questioned in a public court proceeding (which happens so rarely one could honestly state that, statistically speaking, it never happens), we will never know (we can never know) what the child was asked or what the child said in response. Those judges who are willing to question children—as they are authorized by the Utah Code to do—almost never question children in public court proceedings but instead question them in chambers, although the questioning is conducted on the record and not covertly.
The law gives judges the opportunity to avoid hearing directly from a child by instead appointing an attorney for the children known as a “guardian ad litem” and thus avoid ever actually hearing any testimony from the child’s own mouth by having the GAL claim to have spoken to the child, albeit not on the record (and thus there is no objectively verifiable way to confirm this), to have elicited from the child his/her experiences, observations, feelings, opinions, and desires (again, without there being any objectively verifiable way to confirm this) and then, based upon literally nothing that is objectively verifiable, make recommendations to the judge as to how the judge should rule on the issue of the child custody award.
*The ostensible reasons that most judges give for refusing to question children or allow children to be questioned by an attorney or attorneys are that they:
A) fear that if parents find out what the child says, then the child may feel guilty for expressing a preference or preferences for one parent over another on particular subjects of parental abilities and fitness;
B) fear that once parents discover what the child had to say the child may be punished or retaliated against if what the child said upsets or offends one or both parents; and/or
C) conclude, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions.
Here is why I assert that such reasons are not rational:
1) First, parents are going to find out what a child thinks, feels, and wants with regard to child custody irrespective of whether the judge questions the child in court proceedings. Parents are going to learn of this (whether directly from the child or from his/her siblings, extended family members, friends, neighbors, teachers, counselors, coaches, ministers, etc.) before the child custody case is filed, during the pendency of the child custody case in court, at trial, and after the trial. It’s unavoidable. It’s inevitable. I submit that i) the belief that not questioning a child about his/her opinions and preferences regarding child custody will prevent the child’s parents from discovering those opinions and preferences, and ii) the believe that the only time and place in which the child will express such things is when questioned by the judge, is rather naive; it’s impossible to prevent parents from learning this information from and about the children.
Second, the value that many judges place on preventing children from feeling guilty or uncomfortable is misplaced. For two reasons. One, children who are going to feel guilty and uncomfortable about their child custody preferences, who are going to feel as though they are betraying a parent by expressing a preference for one over the other. are going to feel that way regardless of whether they express those preferences to the judge or a custody evaluator or a guardian ad litem (GAL). Two, getting to the truth about how children feel and why—when it comes to their child custody preferences—is far more important than sparing them from feeling guilty (especially when we already know they’re going to feel guilty regardless of whether they testify). Otherwise stated, preventing child testimony does no good: it protects the children from nothing, while denying the judge the clearest, purest sources of information about the children’s experiences, observations, feelings, opinions, and preferences as they relate to the child custody award.
2) If the judge believes that children will not be punished for expressing a preference for one parent over another, so long as those preferences are not expressed to the judge, again, that’s not rational either. It is impossible for a judge to prevent parents from learning a child’s feelings, opinions, and preferences regarding child custody. Thus it is impossible for a judge to prevent a parent who gets upset by those feelings, opinions and preferences from learning about them and from punishing and retaliating against his/her child once he/she learns of them. A judge can’t even mitigate the amount and severity of the retaliation and punishment because the judge is powerless to prevent the child’s feelings, opinions, and preferences from being discovered. And so once again, we find the court depriving itself of one of the clearest and purest sources of information and guidance on the subject of thee child custody award based upon a fear and a belief that has no rational basis. Closing one’s ears and eyes to what a child can say on the subject displays, frankly, a shocking disregard for the best interest of the child.
3) Concluding, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions. See self-fulfilling prophecy. While it is certainly true that some children may be, for various reasons (such as being too young to talk, too young to have a consistent and reliable understanding of right and wrong and truth and falsity, placed in circumstances that call the veracity or credibility of the child’s testimony into question from the outset, etc.), one sure way to guarantee that we never determine how informative, probative, and reliable a child’s testimony may be and what weight to give such testimony is to dispense with allowing the child to testify in the first place.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What can you do if you think your lawyer is doing a bad job representing you? Can you fire your lawyer? Your question is really two questions, and they’re both good questions:
1. If you think your lawyer is doing a bad job representing you, are you thinking correctly?
Not necessarily. Especially in divorce cases.
Divorce law is not rocket science, and so the odds your divorce lawyer is incompetent could be higher than among attorneys in other, more complex fields of practice. Do not misunderstand me: not every divorce attorney is incompetent, but many of them are.
Second, you’re only hurting yourself if your lawyer is competent and you’re just being unreasonable. Candidly, many otherwise intelligent and rational people develop incredibly unrealistic viewpoints and expectations once they become divorce clients. A common mistake many divorce clients make is equating what they want with they deserve. These clients then become enraged when their lawyers tell them that what they want is not what the law allows or what a judge would consider fair and equitable. I am amazed at the number of clients who believe, or who say they believe, that my job is to get them whatever they want. It’s not. It’s not up to your lawyer. If it were, lawyers would be even more expensive than they are now. Your fate in divorce is in the hands of your judge. A good lawyer will help you make your best case to the judge and do his/her best to persuade the judge to rule in your favor. The best way to do that is to make reasonable arguments based upon reasonable claims.
2. If you know your lawyer is doing a bad job representing you can you fire your lawyer?
Yes, period. You are under no obligation to continue to employ an attorney who is doing a bad job for you. Not only can you fire an incompetent attorney, you should fire an incompetent attorney, and immediately, as soon as you discover that your attorney is doing a bad job. Keeping a bad attorney on the job will only cause your case to go from bad to worse. When it comes to getting good legal representation, hire slowly (meaning do your homework and be very careful and selective in choosing who your attorney will be— and remember that you get what you pay for; cheap divorce lawyers are expensive, if you get my drift), fire fast (keeping a mediocre and incompetent attorney on the job one day longer than necessary is a risk you simply need not take—cut’em loose as soon as you can).
Utah Family Law, LC | divorceutah.com | 801-466-9277