Assessing Rule 16.2—Part 2

15 Years and Counting

August / September 2020 By David M. Johnson

CRCP 16.2 was adopted to facilitate case management and discovery in family law cases. Part 1 of this article reviewed the rule’s genesis and case law interpreting it. This Part 2 looks at an informal survey of domestic relations judges and attorneys to examine the rule’s effect on family law practice today.

CRCP 16.2 became effective in January 2005. It was created to provide a uniform procedure for resolving all issues in domestic relations cases and thus reduce the negative impact of adversarial litigation wherever possible. To achieve its goal, the rule contemplates management and facilitation of cases by trial courts, to allow disclosure requirements, discovery, and hearings to be tailored to the needs of each case. The rule aims to provide parties a just, timely, and cost-effective process.

Part 1 of this article reviewed the genesis and history of Rule 16.2 and the case law interpreting it over the past 15 years.1 This Part 2 reports on an informal survey the author conducted among domestic relations judges and lawyers.2 The survey asked a series of questions about the rule and how it was being implemented. The answers are reported here anonymously.

Rule 16.2 in the Real World

The author conducted a small and unscientific survey of family law attorneys and family court judicial officers across the state from large, medium, and small judicial districts. The goal was to have the rule’s stakeholders share their experiences with the rule to assess whether Rule 16.2 is serving its purposes.

The survey questions and a summary of the responses follows.

1. Overall, do you find that the rule is meeting its goals?

Judges

• Overall, the rule is meeting its goal of case management, but it’s hard to say if it is reducing conflict.
• The rule is partially meeting its goals. That is because compliance is partial. The proliferation of cases without attorneys has an impact.
• The timeliness goal is difficult because court dockets are so congested. Not sure what we can do about that. The lawyers cannot control that. Requests for a continuance often are made because a pro se party hires counsel at the last minute.
• Reducing the negative impact of litigation is a huge goal. Most of the parties who come to my courtroom would be better served if they never came to the courthouse. If they had access to a person with legal training and training in change management counseling, they could get help in finding a more productive solution at a fraction of the cost.
• The rule is substantially meeting its goals compared to the free-for-all style of case management we used to have with each judge having his or her own case processing plan.
• I have found that discovery disputes are way down from the old days.
• There is a significant difference in compliance between attorneys and pro se parties.
• The work of the family court facilitators (FCFs) at the initial status conference (ISC) greatly cuts down on litigation. Diligent attorneys follow the rule. Less diligent attorneys do not. Most pro se parties do not follow the rule.
• Pro se parties have no understanding of the rule or even its existence.
• Pro se parties are lost.

Attorneys

• I do not think the rule is meeting its goals in [this large urban district]. The judges simply do not have the time or resources to tailor the needs of each case. New judges unfamiliar with domestic relations do not receive adequate training in domestic cases. Experienced and seasoned domestic relations judges have the wisdom to see through smoke screens, and they are invaluable. A dedicated family court in large districts is the solution.
• It is for the attorneys who read the rule. Some lawyers believe if there is a neutral expert, they simply have to provide information to the expert and not comply with the rule’s disclosures. That has resulted in last minute messes.
• Overall, I think it’s meeting its goals very well.

2. Judges: What do you do to actively manage and facilitate the domestic relations cases you handle?

• Adding a pretrial conference to my docket has done wonders for me and the parties in my courtroom. A key is giving parties a deadline to work against and impose consequences if the deadline is not met.
• A month before the final hearing I have an informal status conference to get a feel for final time requirements and to address any evidentiary issues. I have a discovery protocol that does away with written motions.
• If there are disputes, I schedule in-person or telephone conferences.
• I set a pretrial readiness conference a month or so before the hearing. We identify issues far enough in advance to be able to resolve them and so there are no surprises. You would be surprised how often this simple exercise of articulating issues and the parties’ positions on them resolves many issues and, sometimes, entire cases.
• I hold an initial case management conference in all cases at which time I set final orders. I ask the attorneys to focus on any anticipated discovery and legal issues.
• I will meet with the attorneys if necessary to regulate discovery or even to discuss the merits of the case, if they request it.
• Setting aside time for pretrial conferences is hard, but I do it because they are helpful. I require mediation before the pretrial and encourage additional mediation if the parties agree it might help. I require the parties to have mediation scheduled before my division will set the pretrial and final orders.
• When a case is set for final orders, I send out a Case Management Order with deadlines that lets the parties know what is expected of them. When one side files a motion to compel I don’t wait for a response, but I set it for a status conference so the issue can be resolved quickly.
• I am not as active in case management as some judges are. This is simply my style. I do not feel it is my case to litigate. If I tried to keep track of who filed a Joint Trial Management Certificate (JTMC) on time I would have to hire another clerk full time and they still would not do it. This is a hill I have declined to die on.
• I set quick deadlines for Parental Responsibilities Evaluation (PRE), Child and Family Investigator (CFI), and Child’s Legal Representative (CLR) motions. I require a motion for a supplemental PRE to be filed within seven days of mailing of the first report to avoid last minute continuances. A firm trial date requires parties to deal with the issues and focus.
• I don’t do pretrial conferences. Discovery has rarely come up as an issue since I have been on the domestic relations bench.

3. Attorneys: Do judges engage in active case management?

• It’s a mixed bag. There is no uniformity in the application of the rule due to differences in experience and temperament on the bench. Some judges simply hate domestic relations.
• Much better than a few years ago. Most domestic relations judges now set a pretrial conference about a month out and that helps settle discovery disputes. Dealing with discovery issues in a phone call with the court is much better than filing, for example, motions to compel.
• Judges who set a pretrial conference several weeks before final orders seem to have a much better handle on the cases, and these allow for advance problem solving as to discovery issues, witness issues, and evidentiary issues. Most attorneys find the pretrial conferences to be very helpful.

4. How do you grade the majority of attorneys who regularly practice family law for following the rule to achieve its goals: A=outstanding; B=good; C=average, no complaints; D=poor; F=ignores the rule and its goals.

Judges

• This is a hard one. It is so attorney specific and rule specific. I would say B- to a B. Most attorneys file the sworn financial statements but do not update them, or they update them on the date of the hearing. I routinely see motions to compel two weeks before a hearing when the case has been pending for months.
• I would say a B. The biggest problem is filing the JTMC on time, and timely notice of witnesses and exhibits. I wish attorneys would put more legal authority in the JTMC to support their positions.
• The attorneys I see do a good to average job complying, B- to C+. Big dollar divorces tend to result in a lot of careful disclosures when someone has hired a good attorney.
• I would rate most at between good and outstanding. I really do believe most attorneys have an appreciation of the rule’s goals and the benefits it provides without specific requests for discovery.
• B+, maybe even an A-. Judges like to complain about lawyers, particularly in domestic relations. However, I’ve had overall good experiences.
• I have attorneys in each category. I understand that sometimes the problem is that the client is not cooperating.

Attorneys

• I think most attorneys try to comply, but updates are rare and you have to chase down current information before mediation or trial.
• I would give a B to most attorneys. Pro se parties are a big problem. I don’t believe judges are strict enough with enforcing the rule with pro se parties.

5. How do you grade the majority of attorneys who regularly practice family law for their use of the Joint Trial Management Certificate to problem solve and narrow the issues? Same scale as question 4.

Judges

• B. The JTMC helps focus the court and the parties on the true issues in dispute. For me, what is most helpful is a description of the disputed issue, a few citations to the controlling law, and a brief statement of facts supporting the position taken.
• Most lawyers use the JTMC to manage their case. How much they use it for problem-solving or narrowing issues is hard to say, because I only see the end product. It is usually very clear how much effort the attorneys devoted to problem solving.
• In some cases, somewhat rare, the JTMC does serve the purpose of narrowing issues. This requires two attorneys who really want to narrow the issues. This is more common in big dollar cases.
• B. At my pretrial, I tell them exactly what I want to see in the JTMC (i.e., be specific with parenting time schedules, spreadsheets, amounts sought for support, and so on). It also helps me see how close the parties are to an agreement; therefore, I might invite the attorneys into chambers to point out how close they are, but they don’t see it because they are too in the weeds in their case.
• B. Overall most attorneys seem quite willing to narrow it to just a few disagreements.
• C. Most file the JTMC on time but it is of little value. It will say that debts, maintenance, or parenting time are in dispute with little detail. It will state that an undetermined equalization payment will be requested based on a spreadsheet to be submitted at trial. This is of no value to the judge. A well-crafted spreadsheet should have specifics on all the issues. I consider the JTMC to be the “road map” for the final order. Attorneys waste too much time by not stipulating to exhibits. A big exhibit book does not win a case. The JTMC should tell a story and have a theme.
• Most JTMCs are not very helpful. I require them seven days in advance and have my clerk call if they are not filed on time. When I read the file, it is often the night before the hearing, and so often the information in the JTMC is just a bunch of word vomit about the disputes without any proposed solutions, and no legal authority to support a position. A JTMC should be a road map for the court to follow.

Attorneys

• I would give a C- or D. Most lawyers wait until the last minute. Trying to get stipulations to facts or exhibits is like pulling teeth.
• C or D. There are a handful of attorneys who put in the time and effort to identify their positions in the JTMC, but most do it last minute and rush to just get something down on paper. Often, they come into court with a different position.
• This is a hard one. Lawyers don’t seem to meet face-to-face much anymore. There is no sitting down to go through the JTMC like in the past. However, judges are getting better at enforcing the importance of the JTMC, so it is easier now to get feedback from the other attorney.

6. Do the parties and attorneys make good faith efforts to comply with the rule’s disclosure requirements in a timely manner? Same scale as question 4.

Judges

• Overall a C. Attorneys are better than self-represented parties. Most of the cases are pretty simple, and we have adequate disclosed information.
• I have relatively little trouble with attorneys. With the pro se parties, who comprise about 75% of our dockets now, I see little compliance.
• B to B-. Most people file the sworn financial statement on time. Rule 16.2 disclosures are hit and miss, and updates come at the last minute.
• Late disclosures are very common. Grade of C. Sometimes it is the client who won’t cooperate with his or her own lawyer.
• C. It is the exception rather than the rule that I don’t have an objection that an exhibit has not been properly disclosed; always with pro se parties, and usually with attorneys.
• A- for represented parties. C for pro se parties.

Attorneys

• For the most part, yes. I rarely file a motion to compel. Usually it is not the attorney’s fault.
• I give most a C.
• I would say a B.
• Usually it is not the lawyer’s fault. The parties often try to manipulate the system. Some people think the law does not apply to them, or they say they are too busy or assert privacy objections. Judges seem unsympathetic to lawyers who are doing their job and meeting with uncooperative parties.

7. Do the parties and attorneys make good faith efforts to select a single expert for any issue needing an expert opinion? Same scale as question 4.

Judges

• It is rare in [this smaller judicial district] for parties to select a single expert in disputed matters such as business valuations, ability to work, and so on. Most common is a single real estate appraiser. We have only one qualified expert to do a PRE and everyone seems to think this expert is reasonable.
• C-. I don’t think this option is adequately used by counsel or pro se parties, and it could be a vehicle to reduce conflict and save money.
• I would give them an A to an A- on this. That may be because we have so few experts in town. I think a bigger noncompliance issue is expert disclosure when there are competing experts.
• Probably a B. I don’t see that many experts outside the CFI and PRE experts.
• I would give this a C. I rarely see an expert, even in cases that I think could use one. I don’t think they do a very good job at using a joint expert.
• Experienced lawyers get an A-. Inexperienced counsel, or those who never look for a common sense realistic outcome, I would give a D.
• I would give a B for child issues but an F on most property issues. I rarely see a joint expert on property issues, but I understand why some lawyers want to retain an expert to help strategize and educate the client.

Attorneys

• I would give lawyers an A or B. I think most lawyers try to save time and money with using a single expert.
• I almost always use a single expert for real estate values and personal property, but never for business valuations or for trust analysis or commercial real estate. Those issues are complex, and the expert can help educate the client and lawyer with discovery and settlement strategies. With good experts on both sides I almost never go to trial.
• Yes. On occasion I may retain an expert CPA to advocate for my client, but not often.

8. Do judges impose sanctions for noncompliance with the rule?

Judges

• Not often. The most frequent sanction I impose is to not allow exhibits that are not disclosed or have not been disclosed in a timely manner.
• Not often. The most often is to impose attorney fees if someone is not compliant with discovery. If a disclosure is really late, I will exclude evidence. This is where the pretrial conference is really helpful. There is no point in having the rules if we are not going to enforce them.
• Not often. A detailed analysis from the bench shows little if any prejudice. I am less concerned about “protecting” negligent attorneys than with allowing their clients to have their day in court with no sanction impacting their ability to get in their evidence. My sanctions for material breaches are often a short continuance or bifurcation of the case with the offending party paying the fees of the other side.
• Occasionally. I usually will order that a party cannot introduce evidence or testimony that was not disclosed. I also will impose attorney fees.
• I am almost never seriously asked to impose sanctions. I think I have done it twice. Sanctions are requested almost as a matter of rote but are appropriate only in rare cases. Disallowing a witness or an exhibit is asking for a reversal at the Court of Appeals.
• Not often. Occasionally. Almost never.

Attorneys

• Good, but they err too often on the side of allowing exhibits that are disclosed late.
• It seems the bench is very lenient on 16.2 disclosures, even with something as basic as income documentation and when lawyers represent both sides.
• Judges need to come down harder on parties who do not comply and lay down the law and impose sanctions. Judges need to recognize that good lawyers are doing their job when they seek sanctions in these cases, but they accuse us of whining and not getting along. Judges are far too lenient on pro se parties.
• Judges seem to allow the bare minimum for pro se parties.

9. Judges: Do you ever appoint an expert on your own motion under Rule 16.2(g)(2) and CRE 706? Comment if you wish.

• Rarely. Only in a pro se case, and it would be a CFI or CLR.
• I have appointed a CLR once to obtain information about the preferences of a teenage child, but otherwise no.
• No. There are times I would like to but do not. I am very leery of making the parties spend more money. I also feel that it would be shirking my responsibility to do my job.
• I have appointed a CFI on my own motion. Usually it is when the parties are pro se and I need a neutral third party to look at what is going on with the kids.
• Once in 18 years on the bench. That was a wealthy couple. I am generally reluctant to saddle the parties with more debt.
• No. I have never been comfortable with court appointed experts in civil or domestic relations cases. It feels too much like the court is placing its finger on the scales.
• I have not but will suggest it to the parties.
• “No” twice, without comment.

10. Judges: Have you ever conducted a settlement conference upon the consent of both parties under Rule 16.2(i)? Have you ever suggested this on a case? Has it ever been suggested by the parties or counsel on a case?

• Yes. I have called attorneys in to discuss issues. I have also had attorneys ask to see me to get my input. Sometimes it is when the parties are close to an agreement right before a hearing. They ask my input to help push the clients to an agreement.
• No. I would be troubled by pursuit of what I consider a true formal settlement conference by the actual decision maker. I think this has too high a risk of undermining the confidence in a disputed decision. I have certainly facilitated communication between the parties to help find common ground but only in a limited way, in the courtroom on the record in the course of the pretrial readiness discussion.
• I have not. However, when I bring the parties in for the status conference a good part of it consists of me trying to get them to reach agreements on anything they can.
• I order mediation in all cases unless there is a waiver due to domestic violence. I have not done any settlement conferences and have not been asked to do one. I am not qualified to do one.
• “No” to all three questions four times, without comment.

11. What would you change about the rule?

Judges

• No suggestions at this time. I think the necessary tools are generally in the rule. Candidly, I think we need to encourage the bench to be more involved and proactive in interacting with the parties and counsel to effectively manage all cases, including domestic relations.
• Maybe reference Rule 121 and that motions need to comply with Rule 121, cite legal authority, and the duty to confer. Almost no one complies with Rule 121 when asking for attorney fees and costs. Do we need Rule 16.2(c)(4)(B) [limiting motions practice]? People file whatever they want all the time. Generally, I like the rule.
• I would require the JTMC to be filed 14 to 21 days before the hearing. An earlier deadline would require the parties to confront the issues and exchange positions, and it would lead to better trials and more settlements.
• I have not noticed a problem with the existing rule. However, I would change our whole approach if I could and make the family court facilitator’s training more robust and keep them physically out of the courthouse. But that is beyond the scope of the question.
• Authorizing limited discovery for child support or maintenance modifications would make sense. Usually the only information needed relates to income.

Attorneys

• I would like the rule to be clear that the duty to make full disclosure is on the parties and that the appointment of a neutral expert does not relieve them of that duty.
• The best solution is a dedicated Family Law Court. The lack of uniformity between courts is mind boggling. Suggestions for this have been made in great detail after years of study and rejected as unfeasible.
• The rule could be more clear about what is expected for “supplemental” disclosures. Lots of paper is generated when months of bank statements or credit card statements are requested with no real purpose or benefit.
• I would reduce the scope of disclosures in post-decree child support cases to focus only on issues related to such things as income and medical expenses. The rule should allow appropriate automatic discovery in post-decree cases. The 63-day requirement for disclosure of witnesses is too far out, especially if mediation has not occurred. Twenty-one to 28 days makes more sense.

Conclusion

Rule 16.2 was a sea change in how the courts and family law practitioners handle cases. It recognized for the first time that “[f]amily members stand in a special relationship to one another and to the court system.”3 The rule embraces the principle that spouses and parents are in a fiduciary role to each other and to their children.4 Rule 16.2 aspired to make the process less adversarial and to provide families with “a just, timely and cost effective process.”5

Based on the author’s informal survey, it seems likely that the majority of lawyers now practicing family law on a regular basis do not recall the “bad old days,” because based on their years in practice, they have only practiced with Rule 16.2 in its current form.6 Lawyers who never practiced under the old rules have nothing to compare it to, but based on their answers, more seasoned practitioners see it as an improvement. It is safe to say that the concerns of many family law attorneys back in 2003–04 that the rule would destroy the attorney-client relationship have not come to fruition.7

Finally, the author concludes that the verdict on the impact of Rule 16.2 is a mixed one. As with any human endeavor, how the spouses, parents, family members, lawyers, and judges implement the rule and its goals is what counts. Unrepresented parties struggle with compliance, but that is not a problem unique to family law cases.8 Lawyers could do a better job of meeting deadlines and making sure their clients update their disclosures. Judges struggle with finding time to do meaningful case management given their busy dockets, but those who do so see favorable results with fewer contested trials or trials on narrower issues. Everyone would benefit if those involved would focus on defining what the important issues are and tailoring the process to the needs of each case. As suggested by one of the judges, the court system needs to keep searching for better ways to serve families,9 but in the meantime, the goals of Rule 16.2 are worthy of pursuit.

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