July 2022 Millar’s JurisDiction - Unfamiliar Law

by Richard W. Millar, Jr.

When I first started practicing, I tried a number of divorce cases. Those were the days before “no fault,” and “fault” was often a decisive factor. The hard cases were where fault could not be easily found.

Things, of course, have changed, as has the nomenclature. “Divorce law” has been replaced with “family law,” implying in theory, if not in reality, a more friendly approach. Indeed, the roots of the word “family” in a number of different languages are redolent with kindred relationships.

The opposite of “family” is “nonfamily” or “outsiders,” which has a vague negative connotation. Similarly, the word “unfamiliar” means “not acquainted with” or “strange.”

“That’s fine, Millar,” you think, but what is this leading up to?

It leads to the question pondered for this column: “What happens when a judge assigned to family law court complains he is unfamiliar with family law?”

“Well,” you say, “often judges are assigned to areas in which they lack expertise and experience. Judges are expected to be generalists, not experts in every field.”

In response, I invite you to New Jersey where a formal complaint has been filed with the Supreme Court of New Jersey Advisory Committee on Judicial Conduct against a sitting judge who had been temporarily assigned to the Family Division.

According to the complaint, the judge, Michael J. Kassel, was unhappy with his temporary assignment to the Family Division, which was allegedly made due to staffing issues. The problem, at least according to the disciplinary counsel, was that he announced his dissatisfaction and unfamiliarity with family law in open court on more than one occasion.

Specifically, sixteen occasions.

In the first instance described in the formal complaint, the judge allegedly said to the litigants and counsel that he “knew very little about the applicable laws” as he had not served in that division for twenty years or so, and “compared his involvement in the matter before him to that of a cardiologist seeing his first patient,” remarking that he had not read all of the documents and did not understand that which he had read, but agreed to hear the matter if counsel would “walk [him] through their issues step by step” and “treat [him] like [he’s] a ninth grader in high school.”

In another instance cited by the complaint, the judge, in the middle of a custody dispute, allegedly told the parties and counsel, “I do have some paperwork, but I want to be perfectly candid—I don’t usually know what I’m looking at when I’m looking at the paperwork . . . I don’t understand some of this stuff.”

In a different variation, the complaint attributes the judge to saying: “It’s been literally almost twenty years since I’ve looked at or done any family division work. I’m not a family division judge. I know nothing about this case. Even if I tried to go through [the filings] I don’t understand half of what I’m reading.”

In still another case: “I don’t have the capacity to read through paperwork and financials to understand. I just don’t. That’s the reality.”

I have had a number of instances over the last fifty years when I suspected that the judge had not even seen the papers, much less read them, but I don’t recall ever hearing a judge say that he didn’t understand half of what he read. That would not be a confidence builder for any client, although it would doubtless be a repetitive quote in an appeal.

Again, according to the formal complaint, the judge made no bones about his displeasure with his temporary assignment. In a default divorce he commented: “I’m going to make a decision that I’m very sure is going to make at least one of you unhappy. I’m not here to make people happy. I’m not particularly happy in this position, but this is what I get paid to do.”

Then there is my personal favorite. In a virtual hearing when the attorneys stated they were going to mediation but expected a trial would be necessary to resolve child support issues, he is said to have responded: “As a matter of fact, by the time this conference call ends, if I’m still in the family division, I’ll be very unhappy about it, but it’s unrealistic to expect my liberation from the family division is going to be sooner than that.”

There is an old saying that “familiarity breeds contempt.” Perhaps the judicial corollary is that “unfamiliarity breeds a disciplinary hearing.”

Richard W. Millar, Jr. is Of Counsel with the firm of FSG Lawyers PC in Irvine. He can be reached at rmillar@fsglawyers.com.