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Bar News - December 18, 2009

Bench-Bar Family Division Group Reports Progress on Rules

Editor’s note: Hon. Edwin W. Kelly, Adminstrative Judge of the Family Division, and Margaret R. Kerouac, chair of the NHBA Family Law Section, collaborated on this article. It reviews the First Appearance process, an area of intense interest to members, then discusses more generally the work of the bench-bar discussion group, summarizes rule changes made so far, and looks at the work still to be done.

Looking at First Appearance

Hon. Edwin W. Kelly
Over the last 20 years, the number of individuals appearing before the courts without professional representation has increased dramatically. Indeed, if you were to look for the terms "self-represented" or "pro se" in the 1990 Report of the Supreme Court’s Long Range Planning Task Force you would be hard-pressed to find even one such reference. Yet, 14 years later the Supreme Court’s Task Force on Self-Representation found that 70 percent of all domestic relations cases include at least one self-represented party. That percentage increases when you include other parts of the Family Division jurisdiction, such as juvenile matters and domestic violence.

The Task Force on Self-Representation recommended expanded legal services, as well as case managers, public education and access to information, simplified rules and alternative dispute resolution, in order to assure access to justice for everyone coming through our courthouse doors, whether represented by trained legal counsel or not. The report of the Task Force concluded by saying, "[a]ll of the suggestions within this report, are grounded on the single principle that meaningful access to justice in today’s world means a clear recognition by those involved in the system that many of our constituents want to go it alone when they come to court. Our obligation is to give these citizens the help they want, need and deserve."

It is against that backdrop that the concept of a First Appearance in all marital matters involving children was developed. No one would dispute that, for a citizen entering a courthouse seeking relief, the experience can be confusing and frightening. While experienced staff are ready to answer questions, most people entering the building do not understand the process well enough to even know what to ask. Recognizing these barriers, the family division had a choice – to continue business as usual and let upwards of 70 percent of the people coming to the courts seeking justice stumble their way through the process or to act on the Task Force’s recommendations and create a process that is informative, helpful and focused on providing assistance to the thousands of New Hampshire families struggling through divorce and parenting cases.

Reducing the Adversarial Nature

Fashioned on a criminal arraignment model, First Appearance was designed to address the legislative goal of the family division expressed in RSA 490-D: 1, to reduce the adversarial nature of proceedings involving families. It is meant to give parties the opportunity to enter the court building and receive reliable, process-specific information from a judicial officer and trained staff. While parties are encouraged to receive advice and representation from lawyers, and many do, this setting assures that every couple with children that enters the divorce/parenting arena will receive the same information. The process also assures that parents will have a chance to personally meet the court staff they will turn to for assistance during the time their case proceeds through the court.

It is, in the end, a very simple concept and one with which it is difficult to disagree. There is no harm, only benefit that can result from First Appearance. Think of the last time you were required to go through a stressful and unfamiliar process. Might the presence of people available to answer questions have helped? Might it have been helpful to be introduced to those people at the beginning of your experience? Might it have been comforting at some level, to be in the company of others going through a similar experience?

One legislative member attending a First Appearance to get a sense of what it was all about told her Committee that she felt a palpable sense of tension leaving the room as the Master explained the process and as the participants began milling about the courtroom scheduling mediation, child impact programs and asking questions of the staff.

Better Understanding Reported

A survey conducted in 2007 revealed that of the 196 people surveyed, 98 percent felt that attending First Appearance gave them a better understanding of the court process and helped them to better understand how they might resolve their cases through mediation. Sixty-five percent of those surveyed reported feeling anxiety about the court process before attending First Appearance and 53 percent said the session helped reduce their anxiety. A striking 59 percent reported that they felt they were more likely to resolve their differences without going to trial.

All of these conclusions serve to reinforce that the First Appearance process is helping to achieve the legislative goal of reducing the adversarial nature of the proceedings in family-related cases.

Although many attorneys find the First Appearance sessions to be a helpful starting place for parents entering the court process, a few attorneys have commented that they believe their clients should be exempt from attending First Appearance because they will provide the same kind of information as the judicial officer at First Appearance. This view overlooks the benefits of the First Appearance as described above. The impact of a judicial officer setting a non-adversarial tone early in each divorce or parenting case is powerful and positive. There is a benefit to both parties hearing the same information, which likely affirms and amplifies similar information provided by counsel.

Clearly, a common starting point for all cases involving children has great value. All cases are given the same attention and information at that initial stage. For parents able to reach an early agreement about the outcome of their particular case, the process is expedited. For families with more complex issues, their cases will require more time to find resolution, but will begin with the same early focus on their children’s needs and the importance of exploring non-adversarial solutions.

Meeting the Needs of Citizens

The work of the judicial branch is anything but static. Court processes must change and evolve to address the changing and evolving needs of the society in which the courts operate. Just as the phenomenon of self-represented litigants was nowhere discussed in 1990 when a Supreme Court-appointed group of knowledgeable and influential practitioners met to consider the needs of the court in the 21st century, there will, no doubt, be other societal needs that will come to the fore to be considered 20 years from now. To borrow the conclusion of the Supreme Court’s Task Force on Self-Representation, our obligation is to give the citizens the help they want, need and deserve.

That obligation is one jointly shared by the judicial branch and the bar. While it is not always easy or clear what path to take in order to honor that obligation, it is critical that we bear it in mind and act on it as we carry out our respective roles in the functioning of our system of justice.

Origin of Discussion Group

In December, 2007 at the invitation of Eleanor Dahar, then president of the Bar, Judge Kelly attended a meeting of Bar officers to answer questions about the District courts and the Family Division. That meeting, which also included Graham Chynoweth, then chair of the Family Law Section of the Bar, was an occasion for frank discussion.

As an outgrowth of that meeting, Judge Kelly assembled a group of Family Division judges, masters and administrators – and the Bar invited a group of experienced family law practitioners to join them – to meet periodically to establish a line of effective and constructive communication with Bar members. At the initial meeting in March 2008, the group outlined broad topics for future exploration and suggested areas in the Family Division rules where improvements could be made to enhance family practice.

After the initial meeting, the group divided into two – one to discuss proposed amendments to rules and the other to discuss issues related to Family Division process. After several meetings, the general discussion group turned its attention to rules and the two groups merged. The group has been extraordinarily helpful in advancing a collaborative discussion of the Family Division rules, resulting in a mandatory disclosure rule being submitted to the Supreme Court Rules Committee for approval. The group has also helped to improve the work all who labor for the children and families who come to the courts for assistance.

Amended Rules to Date

Over the course of the last year, as a result of the work and dedication of these groups, many changes to the family division rules have been implemented. It should be noted that the groups met several times, perhaps on a dozen occasions over the course of the last year to discuss and debate possible rule changes, proper language and format of the ultimate rules to be proposed. Every suggested rule change was given consideration.

The following is a brief summary of notable amendments to the rules resulting from the work of the group:
(1) Rule 1.20 – Withdrawal (easing the ability of attorneys to withdraw from cases);

(2) Rule 1.22 – Testimony (adding rules concerning lay witnesses and subpoena procedure);

(3) Rule 1.24 – Pleadings (requiring certification of facts, limiting the attachment of exhibits, and requiring certain identifying information for attorneys to be stated in pleadings);

(4) Rule 1.25 – Discovery (establishing procedure for requests for admissions and incorporating RSA 517 concerning deposition procedure);

(5) Rule 1.26 – Motions (requiring verification of new facts by affidavit, prohibiting attachment of exhibits unless necessary to support an affidavit and clarifying that the filing date of a motion is the date to be used for calculating the date to respond);

(6) Rule 2.10 – Child Impact Seminar (tracking the statutory language of RSA 458-D );

(7) Rule 2.11 – First Appearance (allowing motions to excuse if "unique circumstances" exist); and

(8) Rule 2.28 – QDROs (sealing QDROs to protect confidential information).

These are the most prominent changes to the rules resulting from the work of the group.

Other Changes Considered

Additional significant changes may be forthcoming as a result of the group’s efforts. Most importantly, a new rule about mandatory self-disclosures has been forwarded to the Supreme Court’s Advisory Committee on Rules for consideration and implementation across the family division. Implementation of mandatory disclosures will reduce the need for basic discovery requests, eliminate many discovery disputes, and provide parties with the information needed to assess important features of their case, such as marital estate value and earning capacity. Since this information will be provided very early in the action, rather than several months after the commencement of the action, it will allow parties to be better prepared for mediation, temporary hearings and hopefully earlier settlement of family cases.

Other rules that practitioners have suggested amending include:
(1) Rule 2.21 – Pretrial Conference (eliminating requirement that counsel identify and mark exhibits at the pretrial, since this event may be long before the trial itself);

(2) Rule 2.4 – Alternative Methods of Service (allowing the Petitioning party to avoid the notice to the Respondent upon request, without the need for motion practice); and

(3) Rule 2.29 - Notice of Case Dismissal (requiring the court to send a notice before dismissing an inactive case).

Also proposed by practitioners is a statement, to be located at the outset of the rules, stating that self represented parties are bound by and charged with knowledge of the same rules and standards as attorneys and represented parties. Additionally, practitioners have expressed significant concern about pro se noncompliance with rules to the disadvantage of their clients and have requested that the courts increase enforcement of deadlines and the timely exchange of documents, as it is the intent of the family division to make the courts a level playing field for all, represented or not.

Comments or Questions

If you have questions or comments about family division rules or procedures, please contact the Family Division – District Court Administrative Office (271-6418) and your call will be directed to one of the Family Division administrators. If you would like further information about the Bar Association’s Family Law Section, please contact Margie Kerouac at 628-1330 or e-mail

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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