Authored By: Christopher Pearsall, RI Divorce Attorney
a.k.a. " The Rhode Island Divorce Coach ℠ "
Within the past few months I've had several calls from people who had the same problem and I was able to identify it simply by asking a few questions. Unfortunately it's something that I've seen happen dozens of times over the years. Though I wouldn't call it an epidemic I would certainly say it's something our newer judges could do well to focus on.
So what is the problem? In a nutshell it is the failure to keep their eye on the ball. What does that really mean?
Judges have a coinsiderable amount of latitute and discretion in the Rhode Island Family Court System. They can continue motions over and over. They can defer to family court investigators. They can rely on a Guardian Ad Litem's recommendations without question. They can shuffle a matter off to mediation even if it is a matter in which mediation makes no sense. It's there. Discretion is part of our family court system and we count upon our judiciary to use it wisely.
Yet ultimately, it isn't used all that wisely when a judge doesn't keep his or her eye on the ball. For instance, I had one case where my client filed one motion. Remember that number now.... just one motion! The motion had such substantial merit that the opposing party and the party's attorney could do nothing other than to try to prevent it from being heard. In the case, the judge was not "on the ball" as I call it. Though I brought this to the court's attention at each and every hearing, it was ignored and the judge diverted on tangents as the opposing party filed countless and meritless motions that were titled as "Emergency Motions." In the end, the judge fell for it every time. At one point after 2 1/2 years of bogus motions from the opposing counsel I literally lost my temper and said to the Judge, "Judge, with all due respect you are doing my client and these children and injustice. We have had one motion pending for 2 1/2 years while this court has allowed itself to be pulled off on tangents by the 118 motions filed by the opposing counsel in an attempt to bury the one meritorious motion we filed to start all of this."
The truth be told, my client and I had been patient over and over as bogus motions continued to fly in and cost my client money and time. In the end I represented the client for the last 8 months for free because I was so disgusted at the way the matter was being handled by the court. All that was needed was for the judge to take a clear look at the file and see what was going on. It was as plain as the nose on your face that the opposing party was trying to bury his manipulation of the children and his failure to pay child support.
No matter what motions are filed I have learned one thing from countless judge in family court in Rhode Island. The judge's discretion controls everything! If the judge sees that the underlying problem is that a child needs counseling then the judge will act and go right to the route of the problem. When a judge does that, I applaud that judge. He or she does not end up being controlled by motions which may or may not have validity or even valid foundation (though they are supposed to if counsel is involved).
I think the greatest thing I have learned is that a good RI Family Court judge will see the crux of the issue and then focus on the ball to resolve it. Judge's who loose sight of the real issue usually do so because they listen to a lawyer who is spouting or whining or arguing about something to throw the judge off on a tangent so he or she will not see the REAL ISSUE and keep their eye on the ball.
A constant flurry of motions is not only a sign of a lawyer that may be trying to make more money but also a lawyer that may be trying to bury a key fact about his or her client that he or she doesn't want the judge to see. It is also a good way for some lawyers without scruples to abuse the system by requiring the opposing party's attorney to have to spend more time and money to respond so the responding party will be drained of resources as quickly as possible so he or she can't afford counsel to defend himself or herself.
These are all things that a judge can see from the file. The motions tell the story. The orders tell the story. Sometimes a brief review of the file will help them keep their eye on the ball.
A good judge can keep his or her eye on the ball in most cases and keep the case on track. No matter how many cases may be in the system, a case that is prolonged for no reason or is decided unfairly or inequitably because justice was not done because the judge was distracted from the main point (the ball) is merely a case that might be closed by frustration or one party becoming broke or defenseless
In the end, it is not justice! Once a judge fails to keep track of the ball on a case.... justice falls between the cracks. It is my sincere hope that our judges take a few minutes in each case to look, to listen, and to find the ball once again!