January 25, 2014
This is Jerome Aaron’s, Esq., Family Law, response to the review that appeared in the Massachusetts Lawyers Weekly, “Divorce Corp.” Documentary Takes Unfair Aim at Family Court Judges and Lawyers. David A. Hoffman wrote the review, participated in the movie, and was a panelist at National Parents Organization’s screening of the movie in Boston.
To the editor:
David A. Hoffman’s critique of the film, “Divorce Corp.,” although well-meaning, unfortunately makes some of the same missteps of which he accuses the film of partaking. While the film, indeed, points up by means of vignette and insider comments the evils inherent in the divorce process and the weaknesses of the system which leave it ready to be exploited by money-hungry participants, yet Mr. Hoffman’s sweeping generalizations, some of which have little support and are merely his own anecdotal information, shed more heat than light on a troubled institution.
Mr. Hoffman says the filmmaker takes “the worst cases of injustice and overreaching and generalizes them into a blanket indictment of Family Court….” Mr. Hoffman’s judgment that these are the “worst cases,” and his implication that there is an indictment of all family courts, is itself a gross generalization, and an incorrect one. No one watching the film could believe that every judge in every family court is corrupt or that even most are corrupt; likewise, no one watching the film would be persuaded that most guardians’ ad litem would produce a favorable result if offered a bribe, or that they regularly solicit bribes. Mr. Hoffman has lost some perspective here: Yes, the incidents pictured in the film are shocking, but the point is that the system has serious weaknesses and misguided incentives. What is in the film occurs to a greater or lesser extent. I know. I practice in these courts constantly.
I am also eternally grateful that I do not practice in a state where judges are elected. That portion of the film details important abuses not present in states with appointed judges such as Massachusetts. The possibility of corruption of judges is magnified many times in states where judges must raise money to be elected, and where lawyers have the most to win or lose by giving or withholding contributions to these candidates.
The film is correct that the current system permits lawyers to spend huge amounts of their client’s money, “pouring gasoline on the fire,” as even Mr. Hoffman admits in the film, and in the process fueling enmity between the parties. This, in turn, motivates the parties to spend whatever it takes to obtain revenge by way of custody and property litigation. I have inherited clients who have spent a quarter of a million dollars fighting in court, only to have been virtually abandoned by their lawyers when the money ran out. The fact that the lawyers depicted in the film are grandiose in their desires to pocket their client’s money is not a reason to criticize the film. Perhaps the film depicts an extreme, but the phenomenon is real. Contrary to what Mr. Hoffman states, he is dead wrong to believe that “the market rewards lawyers known for putting their clients first.” That is not my observation at all. The “market,” whatever he thinks that is in the area of hiring a family law attorney, rewards lawyers perceived to achieve a result, regardless of the tactics. Clients believe they are paying for results, and wealthy clients often believe that if they pay enough they will have their result, no matter how sinister the tactics. The financial incentive of lawyers is not to dissuade them. Clients are spending their children’s college tuition and more fighting in court, and that should be intolerable in our system; but the system tolerates it.
Mr. Hoffman’s criticism of the film’s statement that in family court, “constitutional rights do not apply,” is correct as far as it goes, but it doesn’t go very far. Yes, the filmmaker technically is incorrect --- the constitution applies to all proceedings, but the Supreme Court has also said that important principles do not apply when parents are arguing about their children: the constitutional right to the care and custody of a child has been emasculated, especially when a custodian parent wishes to take a child to live in a distant location, beyond the reasonable reach of the other parent; the right to teach a child a particular religion can be overridden if a judge believes it has confused a child. More than a few lawyers have referred to custody determinations as the “wild, wild west.” More than that, the idea that “…Family Court proceedings are, in every respect, governed by statutory and constitutional strictures, is laughable. A determination of “the best interest of the child,” the central determination in every custody case, is not governed by any substantial “stricture.” Quite the opposite. Custody determinations are the most unrestricted decisions that a judge can make. These are almost never overturned. Parents justly complain about judges who tell them they cannot see their children. This happens all the time, sometimes to parents who should be seeing their children.
The film does not deal with mediation, it is true; but the film was not meant to show a 360 degree view of the legal system. Every indictment such as this film undertakes entails collateral damage, but that is not a reason to proclaim the film unworthy. The film was meant to point out the abuses of the system. To the extent we can see the abuses, large and small, we can begin to fix them. Mr. Hoffman should applaud what this film attempts to do.
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