No One Smiles Here: Rethinking the Architecture of Divorce
A couple of years ago, my ex-wife (also a divorce lawyer) and I each had court appearances while our son was out of school. He tagged along with me while his mom covered her case and then stayed with her while I dealt with mine. He remarked separately to each of us: “I get why you are stressed a lot, no one smiles here. It is sad.”
Our son, like most children, is insightful. He captured more than he knew in those words. Spending only about 90 minutes in the domestic relations hallway of one of the busiest courthouses in the country, his experience was a fairly non-stressful one. Our son got to meet judges, handle a gavel, pose for pictures, and get candy. A deputy sheriff gave him a Cook County Junior Sheriff badge. As a visiting child-of-a-lawyer, he was not treated like a litigant or the child of a litigant, but instead he got a Junior VIP experience.
Since March 2020, that courthouse has been physically closed for the most part. Instead of walking the halls from courtroom to courtroom, we now login and pop in and out of virtual courtrooms, litigating remotely from our homes or offices. But there are still no smiles. I once wrote a previous version of this piece, before the pandemic. Much of what was set forth there remains intact here. With the benefit of time and in light of the pandemic, some of my thinking has changed on this topic, but not much. If anything has evolved, it is that I now have an even greater sense of urgency for the redesign of how our system processes family law matters and a more informed knowledge base relative to the necessity of even better refinement of the ways in which technology can aid that system.
Back in the “old days,” when I would go to court, I would enter as a lawyer. With a security card, I would enter without taking off my belt, or having my briefcase scanned, and I was exempted from standing in line and going through security. It was just a brief walk from my office across the street to get there and only a few seconds from the revolving entry door to the elevator door. Non-lawyers, however, would often wait for several minutes or longer to snake their way through the long line of people waiting to get through security. As I would make my way through the building, as a regular, I was greated by colleagues, judges, clerks, sheriffs and staff. We would schmooze and joke and trade stories. This was our turf.
For litigants, they would have to come from whatever part of Cook County they lived or worked in, often via public transport or through gnarled traffic. These people were often missing work or school or time with their kids or elderly parents. After making their way downtown, they would make their way to the courtroom via cramped elevators that deposit them into massive hallways in the spare, steel and glass edifice that is the Richard J. Daley Center. The litigants do not know the judges, clerks, sheriffs and staff. They typically know only their own lawyer and maybe the lawyer for their spouse. They do not schmooze and joke and trade many stories. They do not get or give many smiles. They are present on something serious and personal, their case. This is their life.
It has to be an alienating experience. The trip there. The experience to get in. The waiting and waiting for the case to be called. And then, after a brief period of time at the bench, to leave and head back out to wherever they came from. So much for so little. Take this experience and multiply it by 10, 20 or 50 and you will begin to capture what it must be like for a litigant without even a lawyer to shepherd them through the labyrinth. Alone. Without counsel. Disoriented by rules written and unwritten.
To be clear, remote judicial proceedings have made some of these things easier. With Zoom, self-represented litigants can log in via their phone, tablet or computer. They are spared the time spent in travel and processing. But there are still problems, of course. On many court Zooms, I look at the Hollywood Squares array on my screen, showing the faces of the people appearing before the Judge. The lawyers are in their offices at home or work. Many of the litigants are often in a car or in a quiet place at work. For litigants without means, their devices often do not have the ability to transmit video. Their remote appearance is made even more remote by virtue of the fact they cannot be seen. When their case is called, the box that shows only their name or phone number becomes highlighted and the only connection they can make to the judge is the disembodied words that they speak. As before the pandemic, the experience of the litigant is not a good one.
To give credit where truly due, the judicial leadership in the division in which I practice, Domestic Relations, is aware of and sensitive to all of these issues. Showing good stewardship over her division, our Presiding Judge led in the early days of the pandemic with a series of orders to implement and expand the means to facilitate remote litigation. Understanding that our system must serve lawyers AND litigants, she also expanded a Self-Represented Litigant program where lawyers volunteered to assist people without lawyers and help them navigate the new world of remote proceedings. Given the limits of budget, time, staff and the like, our Presiding Judge has done as much as is reasonably possible or practical.
And yet, solving the fundamental problem at the heart of what I am describing is much larger and would require a full scale Manhattan Project-type effort. Perhaps even thinking of what such a project would or should entail is utopian. But it is worth considering. I am not an architect or planner, but I am an observer. And from those observations, what I know is that we must think far more broadly and creatively about how to make the family law litigation experience better and more humane.
The critical feature that is lacking in our system is this: our forms do not follow our functions. Family law is not criminal law or tort law. It is primarily a psychological, emotional and personal process with a legal overlay by virtue of the laws we have enacted. It often involves children, but it always involves intimate partners. It is not well suited to the physical strictures of the traditional court room as it is structured. Litigants in family law matters are women and men in their individual capacity. They are involved in case that proceeds while their lives are still going. How we design for those realities matters greatly.
For example, instead of requiring litigants to come to divorce and parentage judges, should we not take our judges to the people? A more sane and humane system would establish truly localized Family Dispute Centers that are community and neighborhood based. The centers would be scattered throughout the county in a geographically intuitive pattern that is sensitive to both residential population masses and commercial outlet saturation.
The centers I envision are not mere district courthouses, we have those already. They would be architecturally warm places, with thoughtful design. Given their purpose, they would have meaningful child care available and they would be comfortable. There would be no granite or marble or stone. We would see no gavels or robes or benches. The centers would have rooms where parties could sit together around one table. Those rooms would have small ante rooms where the parties could retreat to be alone with their lawyer or just themselves. Perhaps litigants would enter these rooms from a nice waiting room that would itself have comfortable sofas and good chairs. Music would be playing. Perhaps a TV would be on. Beverages and snacks could be obtained from a small cafeteria or vending area. There would be art on the walls.
Each “dispute room” or pod of rooms would have the means to permit remote appearances for those who could not appear. The lawyers would not wear neckties and suits. They would dress for the work they are doing. Personal work. Family work. There would be mental health professionals available to people. A nursing room. A meditation or quiet room. Perhaps there would be an air hockey, foosball or pool table. And our judges, each day they would come to the people they serve in the places where those people live and work.
Fundamental to this pipe dream of mine, is this: we would treat the divorce like the thing it is instead of the thing it is not. We would embrace that this is a family matter. A private matter. A personal matter. We would see it as the fraught process that it is on all fronts. We would not shoehorn the divorce into the mold of the criminal case or the personal injury matter. We would give people and their cases the environment and context they deserve instead of an ambiance that exudes sterility and hostility.
So many of the things I set forth above are present to an extent within alternative dispute resolution processes that occur outside of court. Larger mediation firms have comfortable settings very much like this vision for the courthouse and many law firms have worked hard to fit their offices to make the experience better and less difficult for clients. But litigation, for those enmeshed in it, is not going away any time soon. There is no good reason apart from budget (and yes, I know that is critical) why litigation should not at least resemble and reflect a more human touch in architecture, planning and design.
Working in a field where “no one smiles” can harden and close you in ways you do not always realize. The comment our son made to me almost two years ago still sits uneasily in me. It sits even more so after a year of working remotely during the pandemic and also the events of this last summer, when inequities and inequalities were brought to greater and more sustained focus and attention. While so many issues are beyond my ken and ability to give informed opinion, this issue of divorce is not. I work in it daily and I have lived it personally.
The end of a marriage is tough stuff. The process to accomplish that end is very difficult too. We cannot wave a magic wand to make divorce easy. Perhaps, divorce should not be easy — given what it is. But it certainly should not be traumatic either, if it can be avoided. And above all, it should not be the burden that it is for the average person and his or her family. Unlike the criminal or contract case, divorce is unique in at least one respect. It is not primarily legal and the legalities are not exceedingly complex in most instances. The thing that drives the divorce case is the thing no judge or lawyer can address — the emotions, feelings and psychology involved. And unlike almost all other types of cases, the divorce case is not solely retrospective in nature.
In personal injury, we assess liability for an action or omission that occurred previously. So too in criminal matters. In divorce, we deal with historic circumstances of a marriage of many years and also fashion an outcome to guide the future after that marriage ceases to exist as a matter of law. It is a dynamic case and it is always in flux. It happens in real time. While other things happen. And it is always and already infused with the emotional material of all of those years of hopes, dreams, compromises, rejections, betrayals and disappointments. We involve the State in this disaggregation of family finances and the awarding of support, alimony/maintenance and parental rights because we must. But this is something that is at the sticky margins of what any government is equipped to do.
It is good to register that the marriage that occurred on the beach, at the bimah or in the ballroom is being dismantled in a place that is unwelcoming and disconcerting. It is unfortunate that we treat these matters in the way we do and we should be clear enough to recognize that this approach contributes to many of the received attitudes and assumptions we have about divorce. Thinking about how to make divorce less damaging is a good thing. I defined the issue as seeking form to follow function. If the function of a divorce is to end a marriage and to create a roadmap for the future of a family that is changing from version 1.0 to 2.0 — we should make the form that we establish, erect or design more representative of what is occurring and what we would like to see occur.
It may be that none of the above is practical or possible at present. What is possible, however, is to take those things that we implemented as emergency measures under the pandemic and refine and fashion them to constitute a new normal going forward for people in divorce. If we cannot allocate the extraordinary sums necessary to remake our courthouses, humanize them, and localize them fully, then we can at least allocate the far less significant sums necessary to make our remote litigation as intuitive, user-friendly, responsive and efficient as possible. The technology is there to do it. I know because I use it. While the pandemic has taken much and turned it upside down, it has also given us much. In my field, we can see now how status calls and hearings and briefing schedules may not require what we once thought they did. We have seen a path forward to streamline and hone the system and its processes. This is a good thing. And if there is one good thing to come of this, it is that we can give people a process that may not ever make them smile, but is a little easier to navigate and to bear.