Talk about being a day late and a dollar short! In Michael Farren’s 2010 divorce, the trial court found that Mr. Farren had destroyed his substantial earning capacity by physically attacking his wife and ordered that 75% of the marital assets be awarded to her.
Unhappy with the outcome, Mr. Farren filed a post judgment motion with the trial court on the 20th day after judgment –just under the wire to preserve his right to appeal the decision. But there was a problem. After initially stamping the motion “FILED”, the clerk noticed that Mr. Farren had forgotten to pay the required filing fee for a post judgment motion and faxed the motion back to him. Mr Farren paid the fee and re-filed the motion the following day but the trial court refused to hear the motion because of the late filing.
After an appeals process that has taken almost three years, the Connecticut Appellate Court in a decision released this morning denied his appeal, agreeing with the trail court that one day late is still late.
That wasn’t the only fatal mistake Mr. Farren made regarding the rules of procedure. The rules required that he file a memorandum of law together with his motion. He hadn’t. Ms. Farren moved to dismiss the motion and won. Mr. Farren argued that because he had corrected the oversight by filing a memorandum after the fact, no harm had been done. The trial court was not persuaded. Again, the Appellate Court agreed with the trial court that rules are rules and strict enforcement of them can never be error.
It is not possible to tell from the decision whether Mr. Farren was representing himself at trial. He appeared pro se in Appellate court but was joined by counsel on the brief. In a way it doesn’t matter whether the deadlines were missed by a pro se individual or by his lawyer. The result was the same.
Mr. Farren may never have been able to alter the division of assets in his divorce case had be been allowed to bring his appeal on the merits, but he didn’t get the chance. This was an appeal restricted to issues of procedure.
The role of the Appellate Court in situations like this is not to substitute its judgment for that of the trial judge, but just to determine whether the trial judge committed clear error or an abuse of his or her considerable discretion. In this case, all the trial judge had done was enforce the rules of court.
Lawyers often speak among themselves about the difference between deadlines and “drop-deadlines.” In this case, at least for Mr. Farren, failing to file his post-judgment motion within the 20 day appeal period was a drop-deadline — a lesson that took three years to hit home. Appeals are long, arduous, and costly and in the case of family law, not often successful.
In this era of increasing pro se litigation, it is important to understand that courts are not necessarily willing to bend the rules depending on the experience or lack thereof of those who appear before them.
After more than 20 years of marriage that ended in divorce in 2003, Connecticut resident Peter Larson seems to have been no stranger to the courts. When he returned to court in 2010 to seek a reduction of child support and alimony orders, he had two previous efforts at modification under his belt and probably felt confident that he would win his pro se bid for relief. After all, his income had gone from about $85,000 in 2003 to about $21,000 and he was unemployed.
And, in fact, he did come away with some degree of success without the help of a lawyer. The trial court recalculated his child support dropping it from its original level of $347 per week to $115 per week. In addition the court reduced his alimony order to $1 per year — not a permanent victory on the alimony front, but still an important win.
Unfortunately, Mr.Larson’s former wife, Matilde, did hire a lawyer who filed a counter-motion for contempt seeking past due child support and attorney’s fees. Ultimately, although he received a break in his current orders, Mr. Larson was also ordered to pay almost $100,000 in past-due support and was also ordered to pay almost $27,000 in attorney’s fees.
In a per curiam decision of the Connecticut Appellate Court scheduled for release next week, the Court upheld the trial court’s action.
As he had at the trial court level, Mr. Larson represented himself on appeal. His arguments of error were;
- The trial court hadn’t reduced child support enough
- The trial court should not have found him in contempt of prior orders
- The order of attorneys fees was excessive because the fees were unreasonable
The Court’s response to these claims makes it clear that Mr. Larson would have benefitted from consulting with a lawyer before filing his motion and, later, before filing his appeal. First, the court stressed the enormous discretion accorded to trial courts by appeals courts in family matters. It is never enough on appeal that the appellate judges might have decided the case differently. This means that strategic errors at the trail level can rarely be corrected on appeal.
Second, Mr Larson would have been cautioned that, because he was not fully in compliance with existing orders, he should have expected a counter-offense if he chose to seek a modification. Based on the amount of the arrearage that the court found, it is clear that his former wife had tolerated his non-compliance for a very long time up to the point that he made the first move in 2010. To the extent that Mr. Larson thought his current financial situation would — or even could — protect him from being held in contempt for falling behind, he was mistaken and any experienced lawyer would have made that clear to him.
Third, he would have been advised that law that requires courts to consider the respective finances of the parties when allocating responsibility for attorneys fees in divorce cases, does not apply in enforcement proceedings where there has been a finding of willful contempt. In such cases, attorney’s fees can be shifted to the party who failed to obey a court order as a simple matter of punishment.
While Larson complained that he had not been given a fair chance to challenge the reasonableness of the fees, the appellate court noted that, not only had the trial court afforded him the opportunity to do that, but had actually scheduled a separate hearing for that very purpose. Although Larson attended the hearing he did not, according to the court, present any evidence on the subject. It is not unusual for inexperienced litigants to expect the trial judge to take the lead in a factual inquiry.
In a 201o op-ed piece published in the New York Times entitled “A Nation of Do-It-Yourself Lawyers” John T Broadrick, chief justice of New Hampshire, and Ronald M. George, chief justice of California, stressed the disadvantages faced by litigants who, for financial reasons, feel compelled to go it alone. The authors urged members of the bar to step up to help mitigate the problem by offering so-called unbundled legal services so that litigants who could not afford comprehensive representation could nonetheless receive limited assistance in the form of consultation, coaching, and help with document preparation.
What many do not understand is that limited representation can be a minefield for lawyers since the rules in many states do not adequately protect them. We cannot reasonably expect lawyers who would otherwise be willing to play a supporting role in a lawsuit, to risk taking responsibility for the final outcome of litigation they do not fully control or to be required to provide additional or even comprehensive services without remuneration.
Still, in every community there are lawyers who recognize the problem and who are willing to address it as long as roles are clearly defined and the expectations are clear. When the stakes are high, it makes sense to seek them out.
The mission of the American Bar Association’s Committee on the Delivery of Legal Services is to make courts and the justice system more accessible to everyone. These days, the Committee’s work has become exponentially more difficult because, at the same time more and more individuals lack the income and resources necessary to hire lawyers, courts – including courts in Connecticut – are increasingly underfunded. Last summer, Connecticut’s Chief Administrative Judge, Barbara Quinn, made the scope of the crisis abundantly clear in her report to the legislature. In it, Judge Quinn outlined a myriad of across-the-board cutbacks made necessary by severe cuts in the budget of the judiciary affecting every facet of operations in the State’s courthouses.
This means that judges are increasingly overworked, courtrooms are increasingly understaffed, and the pressure to settle or streamline cases is stronger than ever. Rambling, unfocused hearings in which litigants are unprepared and proper procedural groundwork has not been laid, waste precious court time and cannot be accommodated. While Connecticut, like most states, makes an effort to provide document preparation and other basic services to support to self-represented litigants, those programs are also stretched to the limit. Law libraries in many parts of the state, once a front-line resource for pro se litigants have closed due to budget cuts making matters even worse.
Faced with this reality across the country, the ABA Committee on the Delivery of Legal Services has made recommendations designed to make it easier for lawyers to “unbundle” their services in order to make legal support and assistance more available to individuals who cannot afford to retain a lawyer to provide comprehensive representation in their cases.
In the course of representing a client in any type of litigation, lawyers perform a wide variety of services. These include drafting and serving pleadings, collecting evidence, analysing cases and setting goals, drafting settlement offers, developing trial strategy, writing briefs, and arguing on behalf of clients at hearings and trials.
When a client retains a lawyer to prosecute or defend a lawsuit, the lawyer typically files a document known as an appearance, and thereafter becomes responsible for performing any and all of the functions necessary to bring the case to a conclusion. As part of that process, the lawyer remains available to consult with the client at all steps of the procedure and to provide advice and guidance whenever it is needed. The lawyer also becomes responsible for keeping the client informed about new developments in the case, and of upcoming events.
Because the scope of full representation is so broad and comprehensive, lawyers in most types of cases — with the exception of injury, accident and malpractice cases — charge clients a retainer designed to cover some or all of the anticipated time and expense that will be devoted to the case.
For too many people in this bad economy, the cost of full representation may be out of reach. For those individuals, the choices are limited. They may choose not to participate at all in the litigation or may enter a so-called pro se appearance, signalling to the court that they will be representing themselves. At a minimum, this ensures that they will receive notice of scheduled hearings and other events in their cases.
The unbundling of legal services is designed to provide a middle ground for those individuals. The growth of so-called virtual law offices is part of this trend. Many of these businesses are little more than document preparation services while others offer broader and more skilled support.
Brick and mortar law firms are increasingly willing to offer limited services to clients who must represent themselves in court. The most straightforward unbundled service is document preparation at the commencement of a case. While it may be convenient to pay for such service, the bare-bones documents needed to start a lawsuit are generally available at no cost through each state’s official judicial website or at the office of the appropriate court clerk.
The more difficult part of any case comes after the initial papers have been filed. Unbundled services beyond the opening salvos of a case include case analysis, preparation of litigation checklists, procedural guidance, ghostwriting of legal memoranda and briefs, review of proposed agreements, preparation of subpoenas and document requests, and coaching in preparation for depositions or hearings. None of these services are generally available through court-sponsored pro-se assistance programs since they fall under the category of legal advice. Under existing rules, court personnel including pro-se assistants, clerks, judges, and others are precluded from offering legal advice of any kind. Mere document preparation assistance does not cross that line, but more substantive assistance does.
Unfortunately, most states still do not allow lawyers to file so-called “limited appearances” that would allow them to argue at a hearing on behalf of a client without committing to full ongoing involvement in the case, so court appearances generally cannot be part of the unbundled services lawyers are able to offer.
For those who cannot afford to have a lawyer speak for them in court, it is still worthwhile to seek out experienced counsel who will meet with them to perform some or all of the other services that go into case preparation and development. By unbundling those services, lawyers can perform specific tasks on a flat fee or hourly basis depending on the needs and budget of the client.
In the past, lawyers have been reluctant to offer services related to litigation on a piecemeal basis. This is because no amount of quality document preparation or coaching can guarantee that the client will achieve satisfactory results. For that reason lawyers worry that based on their limited involvement they may be blamed for difficulties or setbacks — whether forseeable or not — that the client might later encounter. Now, though, with the growing support of both the bench and bar oversight bodies, lawyers have become more willing to work with clients in limited capacities as long as those limits are carefully outlined in an appropriate engagement letter.
For anyone otherwise facing a lawsuit alone, where the stakes can be high, unbundled legal services can be a life-changing investment.