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Straight Talk From The Trial Court Bench (pt. 2)

Transcript of Early Settlement Panel Opening Remarks

By the Court

The Honorable Robert FELDMAN, JSC: I’m going to make a couple of brief introductory remarks. Anytime somebody says that, you can understand that they will not be brief but at least will be introductory. And the remarks I want to make, I want to make primarily to the litigants. The attorneys are free to listen, some of them are even free to understand.

This could be the single most important day for any litigant sitting in this Courtroom today. Matrimonial cases, family cases, are without a doubt the most difficult for anyone to deal with. They’re difficult for attorneys, difficult for Judges, but the difficulties that we have don’t begin to match the difficulties that you, the litigants, have.

The Court is designed to serve you, it’s not designed to punish you, at least not the family Court. What we’re here to do collectively is to look at cases which in some instances, appear to be insoluble, and some up with a solution. And that’s what we will do.

Over 99 percent of all matrimonial cases settle by way of an agreement reached between both husband and wife, with the assistance of counsel. No more than one percent are ever tried to a conclusion. And if you stop and think about it for a second, what is a trial? It’s all of you telling me whatever it is you want to tell me, so that a stranger who happens to be invested with a black robe, can tell you folks how you’re going to live the rest of your lives.

Well, that’s stupidity, especially in the context of a family matter. I’m no more qualified to tell you how you’re going to live the rest of your lives than I am to build a rocket. What I can do is give you some advice. I can probably tell you what your arithmetic should be. But those issues are really miniscule when you stop and think about it.

The real issue in most of these cases, is that a husband and wife are ending a relationship that started based upon mutual love and mutual trust. And that relationship is ending. But when it ends, in most cases you will leave here no longer husband and wife. But, folks, you’re still going to be mother and father. And that’s the issue that concerns this Court.

Each day that has gone by since I’ve been doing this work as a Judge, and I did it for more than 20 years sitting where these August, ladies and gentlemen, are sitting as an attorney. Each day that goes by reinforces one view in my mind. That it is your children, it is our children who are the true victims of divorce.

I’ve interviewed hundreds and hundreds of children. They all say the same thing, every one of them. If they could rub a magic lamp, mommy and daddy would get back together again. Well, mommy and daddy are not getting back together again. The disputes between the two of you, they’re legit, you’ve grown apart. I can accept that. And ultimately, so can the kids, if you remember that you’re still both parents when you leave here, if you remember that what your obligation is when you leave here is to cooperate on a joint parenting venture.

Tell you what it’s not, it’s not interfering with a reasonable access schedule, it’s not, if you’re the non-custodial parent, not showing up when the kids are standing there with their noses pressed to the window waiting for you. And you know what, it’s not even enough not to be negative.

Each parent sitting in this room today has an affirmative obligation when this case is over to be the champion of the other in the eyes of the kids. And I assure you of this, that if you can fulfill that role, some of the pain that each of you feel today will automatically dissipate.

I would venture a guess that there isn’t any litigant sitting in this Courtroom that has not on a daily basis, since this case started, had to stop whatever he or she were doing to think about this case. And that’s a horror. No one should have to live with that kind of pressure.

To some extent, the system is responsible for that. Cases have a way of just dragging on and on and on. Later on this week, I’ll be trying cases that are almost four years old. Think about that. It’s an absolute crime. All that means is that somebody or somebody’s didn’t do what they’re supposed to do.

I’m fond of saying -- and I guess most of the attorneys sitting here have heard me say it on innumerable occasions -- there isn’t a case before me today that is more than two hours away from being settled. And that’s true, two hours. That’s the amount of time that it will take with the litigants and their attorneys to reach a reasonable compromise solution to any arithmetic issue.

When do you want to spend the two hours? Spend it today, that’s what the panel is designed to do, and your case will be over today. I will put through a judgement of divorce today. So at least that part of the pressure will be behind you. Or you can spend it six months from now, which is probably the next even date on the case, or two years from now, when I can probably reach you for trial.

And what would you have -- and what would you have accomplished? Well, let’s figure it out. Two years or even six months is probably going to cost most families sitting in this Courtroom today, in terms of additional counsel fees, accounting fees, expert fees, more money than anybody can afford. And that’s not because the attorneys don’t deserve what they’re going to get paid. To the contrary, they do deserve it. They earn their money.

But, I would much prefer, and quite frankly, they would much prefer that you folks use that money for your basic family needs, not to reward them. Cases that drag on and on and on do a service to no one, including the attorneys who are representing you.

There is also a catharsis in ending a matter, just getting rid of the pressures that exist now. More importantly, being able to make legitimate plans from this day forward without the sense of uncertainty that is plaguing all of us today. And that day’s going to come. Why in the world would anyone want to prolong it one instant longer than they have to?

You have to accept a couple of truisms. By the time I hear a case, I am no longer concerned with good guy or bad guy. That’s a hard concept for litigants to swallow. Many litigants come in this Courtroom angry, many come in frightened. Almost all of them some in with terrible insecurity. And understandably so.

But, my friends, if you think that the Courtroom is a place where you get even, then you’re making a terrible mistake. It doesn’t work that way. If you think it’s a place where you can point fingers, it doesn’t work that way. And even after you’ve pointed your finger, what does it get for you? The answer is absolutely nothing.

There is no one in this world who has ever won a matrimonial case and nobody ever will. The very best that the system can do for you is to try to make sure that nobody loses one either.

Because what’s going to happen at the end is the following, the longer hostilities go on, the longer that message is passed across to your children. Whether it’s done overtly or subliminally, the message is there, mommy and daddy are still fighting with one another. And that creates a terrible conflict in the minds and hearts of the kids.

In many cases, the younger kids begin to revert back to more infantile behavior. In virtually all cases, the kids begin to suffer somewhat in school. In the overwhelming majority of cases, the kids become very, very ambivalent in their relationship with the non-custodial parent. The fear is, in their minds, that if they express the love and affection that they truly feel, that somehow that is an act of betrayal to the custodial parent.

And so what it comes down to is that in the kids’ minds, because it’s the way their minds work, they are responsible for your dispute. They don’t know how to deal with that, something that you folks are going to have to deal with.

But those cases that wind up truly being trials, those are the cases that will never go away from either of you for the rest of your lives. Because once you go through the rigors of examination and cross examination on the stand, the scars, the hostility, they don’t go away. You will carry them to your grave. And your kids will know about it as well.

But, at least those cases where mother and father are able to take a step back and look at the realities of the economics that we have in the 90’s, those are the cases that at least stand a chance that parents will remember when they leave here that while the marriage didn’t work out, they are parents, they still have the ability to be sensitive to the legitimate needs and aspirations of the other.

In most cases, there’s not enough money to go around. It’s unfortunately true. Think about it. Most people who were living here today -- who were living together prior to today as a family unit, middle class families, who are saving nothing, getting by, somehow paying the bills. Now figure out what the costs are of two rents, two lights, and two heats, two everything.

The numbers aren’t going to change. All that’s going to happen is the expenses get larger. Incomes don’t change dramatically. So it’s going to be my decision if you can’t do it, to allocate the funds between the two of you. But let me ask you this. In the real world, who better then husband and wife can make that decision? A stranger?

One final word about the attorneys. By and large, the attorneys who practice in the matrimonial court are the finest attorneys in the legal system. They give more of themselves than any other type of attorney that I know of. They feel some of your pain and at the same time, have to be objective enough to step back and to look at the real issues to help you come to a reasonable compromise of every outstanding problem.

But, they are not the decision makers, you are. They will advise, they will recommend. I’ll tell you the cases I love and I mean this in all sincerity, it’s when we question the parties as we’re putting through the non-contested divorce and the attorneys turn to their clients and say you do understand that I have recommended that you do not accept this settlement, that I believe that if we try this case, you are probably entitled to more.

And the attorneys are absolutely correct in what their beliefs are. And the litigant says I do understand it, I appreciate your advice, but for whatever social reason there is, I am prepared to accept this deal, I don’t need the las bite of the apple.

And that doesn’t make the attorney a bad guy and the litigant a good guy. What it does make them are two people who have approached this problem of divorce exactly the way it should be approached. It’s the attorney’s job to tell you what his or her best opinion is as to what should be the result of the case. It is your job to factor that information in and make the appropriate family decision.

I would hope that of the more than 20 matters we have scheduled today for either early settlement panel or conference, that we will resolve at least 12 of them today. Not because I care much about the statistics, but more importantly, when a case is not settled, I feel that I haven’t done my job. Because my job is to help you resolve these disputes, to do it, hopefully, in a non-adversarial fashion.

And so the panel is going to meet in that room. The ground rules are as follows, when I call the list, I’m going to find out who’s here and who’s not here. Every case will go to the panel. If the panel can assist you in making a reasonable recommendation to settle this matter, fine, I can put the matter through today.

If for any reason you cannot resolve it after you meet with the panel, you are to come back and see me. It’s not because I like to hold people in the Courtroom, but I insist on conferencing every case myself if it doesn’t settle and at the very least, setting an event date when you’re going to come back.

I have been warned under penalty of death -- and I address this to the attorneys-- I may not set any return dates for another conference for the next month. I have so clogged up the calendar now in bringing cases back, and parenthetically, we’re moving more and more cases than ever before, that I -- the staff needs a break, we just don’t have the time. The earliest I could get you back would probably be sometime in June.

… I never know who the plaintiff and defendant are. And those are law words, I hate them down here. I know about husband and wife, I know about mother and father. I don’t know about good guy or bad guy, I don’t know about plaintiff or defendant. So, let’s use husband and wife.

I’ll give you one other pet peeve. I do not believe that non-custodial parents visit with their children. I don’t believe in visitation. I think you have access to your children, I think you have parental time sharing. The concept of visiting is a foreign and strange one to me.

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