Perceptions of Remote and Walk‐In Service Delivery in Family Law Cases

In recent years, the number of litigants representing themselves without legal counsel has increased across the United States. Courts have responded by creating programs and services to help litigants represent themselves. Self‐help centers nationwide use different models to deliver legal advice and information to unrepresented litigants. Some offer court‐based, walk‐in self‐help centers. Others provide services remotely via phone, web, email, video conferencing, and live chat. In Maryland, self‐help center services are offered at walk‐in centers and remotely by phone and live chat. This article examines litigants' perceptions of in‐person and remote delivery of legal advice and information on family law matters. Results revealed that all three service delivery methods have high satisfaction rates, but chat users were less likely to feel as though they knew what to do next. They were also less optimistic about their case than were phone or in‐person users.     

Legal professionals’ knowledge and experience of autistic adults in the family justice system

Abstract

Access to justice is a key theme in the family justice system, especially for those with particular vulnerabilities. Autism, a development condition characterised by difficulties in social communication and interaction, and the presence of rigid, repetitive behaviours, presents particular challenges in this area. This paper reports the findings of a mixed-methods study with legal professionals working in the family justice system, asking about their knowledge of autism, their perceived self-efficacy when working with autistic clients, and their experience of cases involving autistic litigants. The study reports high levels of knowledge, but low levels of confidence, by legal professionals (N = 204), and addresses the experiences of particular cases in follow-up discussions (N = 10). The paper concludes by making a series of recommendations for legal professionals to assist autistic people to engage fully in family court proceedings.     

Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law

This article contrasts policy advocacy of alternative dispute resolution, and demonization of lawyers and court proceedings in family law, with research evidence that calls those policy positions into question. The research demonstrates, broadly, that restrictions on the availability of publicly funded legal representation do not necessarily lead parties to choose alternative resolution processes, that lawyers are much less adversarial than self–representing litigants, and that lawyer representation and litigation may produce more satisfactory and appropriate outcomes than mediation in some kinds of family disputes. The article argues that legal aid policies should respond to these realities rather than clinging to adversarial mythologies.     

Lowering the Bar: Privileged Court Filings as Substitutes for Press Releases in the Court of Public Opinion

In the civil lawsuit against Kobe Bryant for sexual assault, the judge admonished lawyers for engaging in “public relations litigation”—the use of pleadings to attract media attention and try cases in the court of public opinion. This article examines the legal ramifications of such practices and the doctrines of law that encourage some lawyers and litigants to use pleadings as a form of press release. These include the law of republication and the fair report and judicial privileges as well as the power of judges to gag trial participants. The article concludes that courts have adequate tools to control such practices, and lawyers and public relations professionals can responsibly use court documents to communicate with the public, so long as they do not abuse the judicial process.     

建立我国反倾销司法审查制度的探讨

我国一旦“入世”,建立反倾销司法审查制度即成为我国必须履行的国际义务,故这一制度的建立已迫在眉睫,这一制度的设计应遵循以行政诉讼法的原则规定为指导、密度联系反倾销实践的特殊情况及借鉴国餐先进立法经验等基本原则,反倾销司法审查受案范围,应为有关机关在倾调查中作出的、会对利害关系方权利义务产生综合性影响的决定及裁决。审查模式应以法律审为主,事实审不能“无”,但要“弱”。应设立专门法院,负责反倾销司法审查。     

Training of legal professionals in DNA evidence

The South African Criminal Legal System is based on Roman Dutch law. Court proceedings are led by a single presiding officer of the court. Prosecutors and defence advocates present the court with evidence in an adversarial manner. This system has inherent advantages and disadvantages and therefore the training of legal professionals in handling DNA evidence in court is important. The prosecutors resort under the National Prosecuting Authority and the defence advocates act independently or e.g. under the auspices of Legal Aid South Africa.Education curricula of legal professional do not include forensic science evidence. Principles such as evidential value in the forensic context are not addressed. Training of legal professionals with our Essential DNA Evidence™ Course has been a multiplier of forensic science knowledge in the legal profession in South Africa. We present prosecution and defence perspectives in an unbiased manner, compensating for the possible subjective interpretations of evidence that may be presented in court. Forensic evidence is subsequently carefully evaluated prior to being court presentation thus improving court efficiency, and allowing for a more focussed approach to the presentation of evidence. Approaches to the customisation of course content that adds value has been identified via evaluation of training programmes.Experience has shown that legal professionals have the ability to incorporate relatively complex scientific concepts into their legal arguments if provided with the appropriate training opportunity. Appropriate training in DNA evidence has made the court process more effective, both in terms of time and costs, and ultimately serves justice.     

支持理论下民事诉讼当事人法律意识的实证研究

传统研究重视“法的供给”视角,致力于创设“良法良制”。通过转向“对法的需求”视角,本研究基于支持理论和法律意识理论,访谈了142名四类常见民事诉讼案件的当事人。本研究发现,当事人对司法的信赖分为“特定支持”和“普遍支持”两个维度。负面的诉讼经历仅会降低当事人对主审法官(法院)的评价(特定支持),尚未削弱他们对法院系统及司法制度的评价(普遍支持)。此外,当事人可以被进一步分为“门外汉”和“入门者”。前者不信赖法院的根本原因在于其法律意识与司法制度间存在巨大的冲突和矛盾;“入门者”的意识则限定于法律体系内,只在意法官的审判质量。随着司法系统的日渐完善,“入门者”对司法的信赖有望逐步提升。但“门外汉”则需要通过“知情(法)受益”这一过程先转化为“入门者”。     

“What He Did Was Lawful”: Divorce Litigation and Gender Inequality in China

Sociolegal research has shed considerable light on gender inequality in the civil justice system. Existing research, however, rarely looks beyond court proceedings to examine gender inequality stemming from the prior stages in civil litigation. This article fills the gap by addressing the question of whether and how the early moments in disputing produce inequality between women and men. Based on a mixed‐methods study of divorce litigation in China, I identify two critical moments in the early stages in disputing: the initiation stage and the suit‐filing stage. Findings from the two stages indicate that, early on in disputing, the legal profession routinely dismisses and violates women's rights in marriage and family. Moreover, due to the legal profession's failure to convert important rights on the books into formal claims, women's marital grievances and rights claims fall through cracks long before they can enter court proceedings. These findings suggest that gender inequality can result not only from judicial decision making, but also from dispute processing conducted prior to—and outside of—court proceedings.     

PRO SE DIVORCE LITIGANTS

With the increased number of divorce litigants appearing pro se in the past century, trial court judges and court personnel are forced to deal with their conflicting obligations with more frequency. It is virtually impossible for a trial court judge to ensure all litigants have a fair and meaningful trial without compromising their neutrality. Likewise, court personnel are allowed to give out legal information but not legal advice, with the definition of legal information and advice not neatly packaged into two separate and distinct categories. Consequently, changes must be made. This note suggests various solutions that can be imposed to either reevaluate the role of trial court judges and court personnel so that they no longer have conflicting obligations and are able to accommodate the needs of the pro se litigants or implement services that can provide pro se litigants with other avenues of obtaining information and assistance.     

INVISIBLE PARTIES: LISTENING TO CHILDREN

This article discusses how children are involved in family court proceedings in New Zealand. On July 1, 2005, the Care of Children Act 2004 came into force. One of the changes brought about by this Act is an increased expectation that children will participate in proceedings involving them, by the court giving the child a reasonable opportunity to express his or her view. Children may participate in three ways, the primary mechanism being through the lawyer for the child. Children's views can also be elucidated through a specialist report, and direct participation can be achieved through judicial interviews. As each child is different, it is important that the unique circumstances of the case are accounted for. This article will discuss how each of the three methods can be combined to tailor an approach that gives every individual child a reasonable opportunity to express his or her view. There are a number of examples given of this approach in practice, showing how the court has adapted the process to accommodate the child's situation and personality.     

Cases, Conflict, and Accommodation: Patterns of legal Interaction in an American Community

This article provides an overview of an empirical study of a civil trial court and the environment of indigenous law and conflict resolution in which the court operates. The article combines an analysis of civil cases and litigants with an investigation of alternative nonjudicial approaches used by residents of the community. The first section of the article examines the emergence of legal conflicts from the fabric of social relationships in the community and compares cases and parties in the court with those that gravitate toward nonjudicial settings. The second section compares processes and outcomes available in the court with those that may be obtained nonjudicially. The article concludes that different categories of cases emerge from different kinds of social relationships and for this reason are associated with fundamentally dissimilar patterns of values, norms, procedures, and outcomes. It also emphasizes the benefits to be obtained from investigating the complex relationships and interchanges that link local level trial courts to their communities.     

Children's Participation in Family Law Proceedings: A Step Too Far or a Step Too Small?

The Children (Scotland) Act 1995 established children's rights to have their views considered in family law proceedings. These rights go further than elsewhere in the UK: in requiring parents to consult their children when making any ‘major decision’, in creating a range of mechanisms for children to state their views and through facilitating children becoming party to legal proceedings if they are legally competent. Such rights are not without controversy, either in abstract (Is it in children's best interests to be involved in court proceedings? Should children have such rights?) or in practice (Do children and parents know of these rights and accompanying duties? How do legal professionals judge a child's competency?). This paper explores such controversies, using findings from a feasibility study undertaken with children, parents and legal professionals.     

Inquisitorial Adjudication and Institutional Constraints in Chinese Civil Justice

Based on participatory observations of trials and extensive interviews with judges, this article examines the operation patterns of the civil justice process in China and explores the underlying reasons behind. It finds that, despite the reform efforts placing more responsibility on the litigants, the Chinese civil proceeding remains largely inquisitorial. The decline of out‐court investigation is evident, yet judges rely on a limited form of cross‐examination aimed to obtain oral testimony that can be used to justify a decision. This kind of judge‐initiated questioning becomes an inexpensive substitute for the previously labor‐intensive court investigation. The article further argues that the judges do not adjudicate based on whatever evidence presented by the litigation parties, a change mainly attributed to the institutional constraints to which the judges are subject. They respond to the incentives by handling cases efficiently with the minimum possibility of reversal and complaint. The article concludes by offering theoretical implications on the study of comparative legal process more generally.     

The media coverage of court proceedings in Europe: Striking a balance between freedom of expression and fair process

Press curiosity to report on legal proceedings has been a salacious feature in history of mass media. Pre-trial comment, media coverage of press proceedings and the protection of privacy of the defendant are some of the main legal issues which are raised by the ambiguous relation of media to court proceedings. The Internet revolution and the emergence of the blogosphere have added a new dimension to the analysis of these legal issues. A balance between freedom of expression and the guarantee of a fair unprejudiced process has to be achieved in the context of application of legal mechanisms of protection of the justice’s authority, such as contempt of court. As regards the question of media coverage of the court proceedings, the decision of the UK Supreme Court on May 2011 to permit television coverage of its hearings demonstrates an important shift as regards how publicity is perceived by the administration of justice in the UK, while there is a certain disparity between national legislators in the way they deal with this issue at a European level. The legal question of the protection of the defendant through the effective guarantee of the presumption of innocence and, consequently, that of a fair trial is often combined with the debate about the right of the defendant’s privacy not only when there is a pressing social need for information to the public before or during the court trial but also many years after the end of the legal proceedings.     

Factors that influence engagement in pre-proceedings practice: presenting the roles of professionals working within the family justice system through personal narratives

Public discourse around changes introduced as part of a drive to tackle spending on welfare, reflect a less than tolerant attitude towards welfare generally, but more specifically towards parents who require state involvement to care safely for their children. The introduction of a deadline of 26 weeks for the completion of care proceedings, together with a clear steer to resolve disputes wherever possible prior to making an application to court has introduced further instrumental approaches to working with parents. In this paper we explore practitioner experiences and understandings of working within the new legislative frameworks and consider the dominant cultural narratives they are working within. However, in some cases professionals felt able to challenge the economic narrative of the pre-proceedings protocol, and they experienced the legal and policy changes as an opportunity to engage in a helping alliance with families with the provision of support that otherwise they would not have been able to offer.     

Understanding Pathways to Family Dispute Resolution and Justice Reforms: Ontario Court File Analysis & Survey of Professionals

This article reports on two related studies about varying pathways to the resolution of family disputes and the effects of family justice reforms in Ontario: a survey of family court professionals (n = 118) and an analysis of 1,000 closed court files of family cases involving children. Both studies reveal that the vast majority of cases are resolved without a trial, often by negotiation. While professionals generally support family justice reform initiatives, there remain significant gaps in the implementation of these strategies. For example, many litigants do not attend information programs despite the requirement for mandatory attendance; there is limited use of mediation; the views of children are being sought in only a small number of cases; and there is a large proportion of self‐represented family litigants. Despite the increase in shared care and joint decision‐making arrangements, a majority of cases in the court file study were sole custody arrangements to the mother, whether the case was settled or resolved by trial. Mediation was associated with greater time of contact with the non–primary residential parent (usually the father).     

审判中心视角下的行政诉讼制度构造

"以审判为中心"的政法政策同样适用于行政诉讼制度改革,它要求法院发挥自身司法能力和司法制度能力,有效地介入涉法行政争议之中,并藉此保护法益。在行政诉讼中,司法权与行政权之间是法律监督上的国家权力结构关系。法院优位于行政机关,法院作为独立裁判者指挥诉讼管理关系和裁判过程。以审判为中心的行政诉讼制度构造,应最大限度地发挥法院司法能力在解决行政争议上的优位角色,应完整地发挥行政诉讼法的制度能力,即发挥立法、司法解释、司法组织及指导性案例的制度功能。行政诉讼司法准入、行政机关负责人出庭应诉、诉讼管辖、庭审制度等,是否体现了"以审判为中心"的制度改革方向,主要看其是否有利于行政争议的实质解决和法益有效保护。"多元化纠纷解决机制"政策和行政行为合法性审查为中心的行政诉讼制度,影响了法院的诉讼角色和功能。回归司法权和诉讼制度本质,宜在行政争议、行政行为和法益之间构造出一致性的诉讼结构关系;宜从组织和体制改革转向程序改革,发挥行政程序和司法程序在塑造司法公正和司法效率上的作用。     

From litigator to researcher: the burdens and benefits of moving between the profession and the academy

A researcher who understands litigation practice and is connected to the profession has advantages in terms of accessing and interpreting the litigation setting. However, the knowledge and connections complicate relationships to research participants. This article considers a research method designed to provide insight into how litigants in person conduct litigation and how the professional participants (lawyers, court staff and judges) respond to them. The researcher’s previous roles of judges’ clerk and lawyer helped secure access and understanding but created issues with recognising and managing participant reactivity, maintaining critical distance, as well as an ethical and personal struggle in watching a legal case heading for disaster. The research site, the ‘large village’ of New Zealand with its tight-knit closely networked legal profession, compounded these issues. The article concludes that despite these difficulties, watching litigation with anthropological curiosity resulted not only in insights about the research questions but also the importance in litigation practice of engaging with the client’s social world.     

PARENS PATRIAE

This article discusses the role of the court in protecting children in Australia and provides a means for comparing this process in other jurisdictions. It addresses the different perspectives of mental health and legal professionals in obtaining insight into case law and precedent in the English-speaking countries.