Podcast on Crimes Against Women
The Conference on Crimes Against Women (CCAW) is thrilled the announce the Podcast on Crimes Against Women (PCAW). Continuing with our fourth season, the PCAW releases new episodes every Monday. The PCAW serves as an extension of the information and topics presented at the annual Conference, providing in-depth dialogue, fresh perspectives, and relevant updates by experts in the fields of victim advocacy, criminal justice, medicine, and more. This podcast’s format hopes to create a space for topical conversations aimed to engage and educate community members on the issue of violence against women, how it impacts our daily lives, and how we can work together to create lasting cultural and systemic change.
Podcast on Crimes Against Women
Empowering Survivors: Guidance for Self-Represented Litigants in Court
This episode tackles the challenges faced by self-represented litigants in domestic violence cases and how courts can ensure procedural justice and safety for victims. Three legal experts join the conversation to discuss the role of technology and training in improving legal responses and empowering survivors.
The content of this episode is for informational purposes and should not be considered legal advice.
The Honorable Lora Livingston, the Honorable Mary Madden, and Attorney Darren Mitchell guide us through the intricacies of supporting self-represented litigants, shedding light on the critical responsibilities of judicial officers. Discover how separating victims from perpetrators, addressing intimidation, and maintaining a safe court environment can empower those seeking justice without legal representation.
Our discussion also ventures into the transformative effects of remote court proceedings, a shift hastened by the pandemic. Learn how this transition has eased logistical burdens, enhanced safety, boosted participation in domestic violence cases, and how virtual hearings continue to shape the future of justice access, offering a dignified platform for victims and ensuring procedural fairness remains intact.
Furthermore, we unravel the delicate balance between providing legal information and advice, especially for non-lawyer advocates assisting victims. Through examples and practical tips, we explore the permissible roles of advocates while underscoring the importance of collaboration with legal services. This episode is a treasure trove of strategies and insights aimed at improving court support for domestic violence survivors, ensuring they are equipped with the tools necessary to navigate their cases effectively.
You might want to take notes as you listen! Key resources from this episode include:
lawhelp.org
womenslaw.org
ncjfcj.org
Episode highlights:
• Discussing the statistics of violence against women
• Exploring the importance of procedural justice
• Highlighting judges' roles with self-represented litigants
• Examining courtroom management considerations for safety
• Learning about technology's role in enhancing access to justice
• Understanding the benefits of trained advocates for victims
• Sharing insights on systemic changes to support litigants
• Providing resources for further information and assistance
The subject matter of this podcast will address difficult topics multiple forms of violence, and identity-based discrimination and harassment. We acknowledge that this content may be difficult and have listed specific content warnings in each episode description to help create a positive, safe experience for all listeners.
Speaker 2:In this country, 31 million crimes 31 million crimes are reported every year. That is one every second. Out of that, every 24 minutes there is a murder. Every five minutes there is a rape. Every two to five minutes there is a sexual assault. Every nine seconds in this country, a woman is assaulted by someone who told her that he loved her, by someone who told her it was her fault, by someone who tries to tell the rest of us it's none of our business and I am proud to stand here today with each of you to call that perpetrator a liar.
Speaker 1:Welcome to the podcast on crimes against women. I'm Maria McMullin. As victims and survivors of domestic violence seek justice to obtain safety, possibly gain full custody of their children, apply for protective orders and ultimately hold offenders accountable, they are oftentimes pursuing legal recourse without an attorney. Unfortunately, most of these litigants are not lawyers and do not know the various and many times complex intricacies of court proceedings. Because of these challenges, it is imperative that self-represented litigants are equipped with as much information, tips and techniques as possible to give them the best chance at a favorable outcome that could ensure their safety and security.
Speaker 1:This episode will be a conversation with two judges and an attorney from the National Council of Juvenile and Family Court Judges to talk about the importance of procedural justice and safety for domestic violence victims and survivors within a legal framework. I am joined today by three guests with distinguished law and judicial careers, including direct experience with domestic violence in family courts the Honorable Laura Livingston, the Honorable Mary Madden and Attorney Darren Mitchell. Darren Mitchell is the National Council of Juvenile and Family Court Judges Fellow FVDR at the National Council of Juvenile and Family Court Judges. In this role, he engages in the development and implementation of effective research that will result in the use of its findings to build and help implement an array of evidence-based practices in juvenile and family courts across the country. Mr Mitchell received his Bachelor of Science in Biochemistry from the University of California, los Angeles, and is a graduate of Stanford Law School. Darren, welcome to the podcast.
Speaker 3:Hi, thank you for having me.
Speaker 1:Before we dive into the topic of self-represented litigants, tell us a little bit about the work of the National Council of Juvenile and Family Court Judges.
Speaker 3:Sure. The National Council of Juvenile and Family Court Judges, or we call it NCJFCJ, is the oldest judicial membership organization in the country and we've worked on improving court responses to domestic violence and other topics for more than 30 years. We provide training, technical assistance. We've provided that training and technical assistance to tens of thousands of judges and other professionals involved in both juvenile and family and domestic violence courts all across the country. We also provide cutting edge publications, practitioner tools and other resources for professionals, all of which are available on our website, wwwncjfcjorg.
Speaker 1:Prior to joining the NCJFCJ, mr Mitchell worked asa consultant on domestic violence and other violence against women issues with a focus on child custody and domestic violence, firearms and domestic violence, interstate child custody protection order issuance and enforcement and full faith and credit. So from what I understand in your background, you have extensive experience working with issues related to domestic violence. Help us build a framework for our conversation today with retired judges Livingston and Madden about self-representation in domestic violence cases and what information we can expect from this discussion.
Speaker 3:Yeah, absolutely.
Speaker 3:I'd be very happy to set the stage for the conversation. As you mentioned at the beginning, today we're planning to focus on how courts and how other professionals as well in domestic violence cases can better respond to self-represented litigants. We sometimes refer to those as SRLs, folks who don't have lawyers, who make up the vast majority of litigants, especially in domestic violence cases. We're going to explore how courts, judges and other stakeholders can help ensure that victims of domestic violence who engage with the legal system experience a process that both provides for safe outcomes and what we call procedural justice, which means an experience in which they're treated with dignity and respect. They were given a voice in the process, they understand what was happening at each stage of the legal process and they perceive it to, overall, be fair and neutral and we're very fortunate to have two experienced, accomplished judicial officers with us today as well and most of what we discuss will be aimed at judges and courts, but will also explore opportunities for other court-affiliated professionals opportunities they have to support self-represented litigants in domestic violence cases as well.
Speaker 1:That's really helpful context for this conversation and just to build on that a bit more domestic abuse offenders manipulate and exploit the legal system all the time and in many ways they still yield power and control over their victims In cases involving domestic violence. What are some general considerations for judicial officers regarding court management?
Speaker 3:Yes, well, whether or not the parties have legal representation, but especially when the victim is not represented, there are many, many things that judicial officers should be on the lookout for in domestic violence cases.
Speaker 3:As you mentioned, the courthouse may just be yet another forum in which the person who's engaging in domestic violence is attempting to exert power and control over the victim, and so it's really important for judicial officers to consider how to make the courthouse overall and the courtroom safe spaces for victims, and this can include things like instructing security personnel to monitor hallways and other spaces outside of the courtroom itself to ensure that they're safe, by seeing the victim and the perpetrator in particular ways apart from each other, maybe separate with other people in between them from each other, maybe separate with other people in between them as the hearing is going on, not letting one party speak over the other, and typically in domestic violence cases, that would be the person who's actually causing harm, although sometimes, you know, victims act in ways that we maybe don't expect, and they'll be agitated and loud in the courtroom too.
Speaker 3:So making sure to manage the courtroom in that way can be very important and also ensuring which we see many times attempts by the perpetrator to ask direct questions of the victim in the court.
Speaker 3:Judicial officers should be stopping that practice. They're the ones, if the parties are unrepresented or self-represented, who should be asking those kinds of questions as well. And the final thing I'd mention that I think is really critical and I know our judges today have additional strategies around this is judicial demeanor how judges speak to the victims in their court and whether they can use that as an opportunity to help the victims regain some agency, some autonomy and some sense of protection. And that can include explaining what's happening in the courtroom at each stage so they understand that, what the judge is going to be making their decision based upon. And also really the important way making advocacy, taking judicial leadership to make sure that there's an advocate available, ideally in the courtroom and accessible, or in the courthouse and accessible to victims, can be an important way to help make this environment safe for someone who has been subject to power and control in many instances for years.
Speaker 1:That is really helpful information. I hope people were taking notes because I think those were some very good tips for people who might need them that are listening today. The Honorable Mary Madden recently retired after serving six years as a district court referee in two Minnesota district family courts. She practiced family law exclusively for 20 years before joining the family court bench in 2008. While serving as a referee from 2013 to 2021, referee Madden was the lead judicial officer on three grants funded by the Department of Justice Office of Violence Against Women and received by Minnesota's 4th Judicial District, specifically the Family Court Enhancement Project Grant, a Mentor Grant and a Justice for Families Grant.
Speaker 1:Referee Madden is a former chair of the district's Domestic Violence Coordinating Council and Advisory Board. She has been an adjunct professor at the University of St Thomas School of Law teaching domestic violence and the law and is a consultant and trainer with the Council of Juvenile and Family Court Judges and the Center for Justice Innovation. Judge Madden, thank you for joining us and welcome to the show. Thank you for having me as well. You also have an extensive history with family law and victims may bring misconceptions and inaccurate expectations with them to court about what a judge will and will not do as it relates to their case. In your experience, what is the appropriate role of a judge in a case with self-represented litigants?
Speaker 4:I will reiterate many of the things that Darren just said. All of those things are very important. This is also a very big topic, so I'm just going to touch on some of the basics that I think are important, especially in these types of cases. One of them, as Darren mentioned, is safety. Now, the role of the judge in the courtroom is different than what other actors in the courthouse might be, but I think for a judge it requires minimally additional added observation of things going on in the courtroom. So where are the parties going to sit? They should not sit next to each other unless there's significant amount of space between them. They should not sit across from each other. Where are they going to testify from?
Speaker 4:Typically, a courtroom is set up where there is the witness in the witness stand and then directly across from them are the other party or parties or attorneys etc. I sort of suspend that practice when I'm doing civil protective orders and just have parties testify from where they are sitting to avoid that. Any intimidation factor reduces the stress of both parties etc. Also, monitoring intimidating behavior by any observers that may be sitting in the courtroom. We've received information over the years about intimidating behavior by supporting people who attend a hearing with the respondent, which we as judicial officers don't necessarily see, but we can obviously, if we're paying attention, see it in the courtroom and put a halt to that or excuse observers if necessary, observing for violations. If someone is a respondent is directly looking at a petitioner when they're testifying, making sure to call that person out so they understand that boundaries will be set in the courtroom so that everyone remains safe and, I think, really remaining active and engaged in the hearing. That is certainly possible without compromising neutrality, and I'll talk a little bit more about that.
Speaker 4:But I think it's really important to play a more active role in these types of cases, especially with self-represented litigants, than the more passive roles that judges may play in other types of cases. So procedural justice is a really important part of especially where there's self-represented litigants who don't have the benefit of counsel to advise them and inform them about what's going on. So it's important for judges to explain the process. Don't assume anything.
Speaker 4:This may be parties first time in court, they're nervous, they're traumatized, and the list goes on and the list goes on. But explaining what we are here for the day, how the hearing process is going to work, who speaks when addressing things like exhibits and witnesses in terms and with an explanation that makes them less daunting and intimidating for parties. Explain that there's a record being made, the decision-making process and explain the result if an order is issued from the bench immediately following the hearing, because it's important, for if you're in a situation where you are doing that, it's important for both parties, in particular in these cases and in particular, being self-represented is to understand, so that both parties have the same information and they can ask any questions and things are clear for everyone.
Speaker 1:Thank you for giving us all of that context. I want to ask one question about this, and that is is there anything additional that you may have to do, or something you might not do, if one side is represented and one is not?
Speaker 4:I think, for purposes of this discussion, whether one side is represented or not, the same principles apply, because, especially for the party, who is self-represented is going to feel most likely at a disadvantage. So I think, if you use the same process of explaining things, setting the stage for procedural fairness, that I don't think there's a significant amount of difference. You don't want to use terms of legalese when there's one attorney present so that the self-represented litigant doesn't understand. That's not going to be beneficial. So, using plain language, explaining terminology if you have to use some type of legalese, critical is treating everyone with respect and that includes explaining the courtroom decorum, explaining, as Darren mentioned, one person speaking at a time, explaining not speaking over the other person, so that we have a clear and accurate record and everybody has an opportunity to say what they want to say. And all of that creates a perception of fairness that is so critical to how people respond in these proceedings. That is so critical to how people respond in these proceedings.
Speaker 4:It's important to actively elicit information that's needed for decision making, which is a role that a lot of judges may or may not be comfortable with. Some judges see their role as just taking in information that's presented to them without playing an active role in eliciting information, and that is really, I think, doing a disservice to the process and doing a disservice to the parties. I think the judges who do that don't necessarily aren't doing it maliciously or anything. It's just it feels like it's crossing a boundary. But judges have a vested interest in procedural justice and a vested interest in getting all of the pertinent information available without relying on someone who's not represented or someone who's traumatized, etc. Be able to give that information off the top of their head. So to make good decisions about children and families, judges need to engage in the hearings. Neutrality, treating parties in the same manner as I touched on when you asked, maria, about whether we do anything differently where one party's represented and another's not.
Speaker 4:It's important to treat both parties in the same manner. Procedurally. Now, that doesn't mean that you ultimately order the same services or include the same provisions in a civil protective order for both parties, but it's to provide some meaningful information and support to specifically assist a family that's in front of you with respect to their specific needs and circumstances. I think it's important when you are playing an active role in obtaining information using non-confrontational questioning is explain to me what happened. You referred to an incident on this date. Can you elaborate what happened? And to the respondent, you've heard the information that the petitioner provided. What would you like to say about that? And asking I typically ask at the end of a hearing where both parties have had a chance to testify is if either of them has any questions or if there's any additional information that we did not cover that they think is important for me to know.
Speaker 4:There's a couple of other points that I think are important in presiding over hearings with self-represented litigants is being culturally responsive, work on eliminating bias and ensuring language access, which some courts have a lot of resources to ensure that that is available and others not so much, but we have many members of marginalized communities who appear before us that don't trust government systems, and obviously the court is one of those systems.
Speaker 4:There's historic oppression based on race, ethnicity and gender.
Speaker 4:There's negative interactions with other justice partners or other parts of the system, disproportionate rates of incarceration many, many reasons why someone appearing in front of us does not have trust in the system, and so I think, promoting cultural responsiveness as we move forward in these hearings and continuing to educate ourselves on that issue, as well as the issue of eliminating bias, which is a constant challenge for all of us on a daily basis, we all bring our own biases to the table. And lastly, being trauma-informed as a court is important. Most, if not all, of the parties and that includes petitioners and respondents most likely have experienced trauma in their lives, and so, as Darren referenced, survivors of domestic violence can appear in a variety of ways. They can be emotionless, they can be angry, they can be the whole gamut, and if we misinterpret their behavior and have it dictate our assessment of credibility, we can issue a decision that is a disservice to the parties and to the families and the children involved, and again, training is an ongoing issue with respect to that.
Speaker 1:And again, training is an ongoing issue with respect to that. This is so complex and important and I hope that people listening, whether they are a victim of domestic violence or have some other purpose for being in the courtroom understand that there's a lot that goes into it and there's a lot of responsibility on judges and others to make sure that people understand why they're there and how they're supposed to conduct themselves and what information is important. So I appreciate you providing so much information for our listeners to understand about this topic. Judge Livingston is a 1982 graduate of the UCLA School of Law. She began her legal career as a Reginald Heber Smith Community Lawyer Fellow, assigned to the Legal Aid Society of Central Texas in Austin, texas. After completion of the two-year fellowship, she continued to work in the area of poverty law until she entered private practice, with an emphasis on family law. She was an associate at the law firm of Joel B Bennett and a partner at the law firm Livingston and Parr.
Speaker 1:She began her judicial service as an associate judge for the district courts of Travis County, texas and, after her successful election, judge Livingston was sworn in as judge of the 261st District Court in January 1999. She is the first African-American woman to serve on a district court in Travis County, texas. Her judicial colleagues elected her to serve as the local administrative district judge for the Travis County Courts, and she led the Council of Judges for nine years. Her crowning achievement was overseeing the design and construction of the new Travis County Civil and Family Courts facility. Judge Livingston retired in 2022 and is now serving in the judiciary as a senior judge. I'd like to welcome Judge Livingston to the show. Thank you for being here.
Speaker 5:Thanks so much for having me.
Speaker 1:You've been practicing law for about 40 years and one would assume you have witnessed many changes over those decades, not the least of which was the changes within the courts during the recent COVID pandemic, based on the need for all the facets of court proceedings to pivot during the pandemic. What lessons about court access did we learn from the pandemic that can help improve access for self-represented litigants.
Speaker 5:Well, the pandemic certainly required a major pivot in our typical operations, but I think in many ways it was a good pivot, a time for us to reevaluate the way in which we were delivering justice and providing our services to the community. And so, while some people saw the pandemic as a huge challenge and it was in certainly many ways challenging but it was also an opportunity for us to take a fresh look at our business operations and our ability to provide justice in new and different ways. Technology became ever so important, but instead of being overwhelmed by the pivot that that required, it turns out your phone is a computer and so in many ways, everybody had equal access, because even those that are marginalized, in marginalized communities or in poverty stricken circumstances, many people have access to a smartphone and can connect and participate in the court process in ways that in-person participation limited their ability to do so. So technology became super important. Our ability to move quickly from an in-person environment to a virtual environment became really important, but it turns out we were able to make that pivot very quickly and very easily.
Speaker 5:The biggest thing I think that came out of the shift from in-person proceedings to remote proceedings, in my mind, was the participation of litigants. We had greater participation across all dockets, including family law, including family violence, but really all across the dockets. We had greater participation. We did fewer default judgments during the pandemic when we were operating in 100% remote environments. It eased transportation worries, it eased child care worries, it eased problems that people had taking time off from work and, frankly, we were able to better predict the ways in which we were going to conduct hearings. So we still had in some cases what we like to call cattle call dockets, where everybody shows up at the same time and you work through 30 or 50 cases in a day, in a morning or something. We still had some of that virtually, but less of that virtually. We were able to modify it. Even if you had a kind of cattle call docket first thing in the morning, you might be able to say and better schedule and be, frankly, much more efficient in the way in which we conducted proceedings in this remote environment.
Speaker 5:Participation went up significantly during this period of time. We still met all the legal requirements. We still were able to impose a dignified and formal proceeding for litigants, but we were able to do it in a way that made it easily accessible to everyone. I don't have hard and fast statistics on this, but anecdotally I can tell you that we also experience better compliance with some of our court orders. When people participate in a process, even if they don't get everything they want, there's a sense of buy-in to the process, a sense that they were heard, they were listened to, they got to say their piece. They got to was a sense that they got a fair treatment and that led to better compliance with the orders that we entered at the end of the day. So again, I don't have really hard and fast statistics, we didn't really capture that data, but that's certainly the anecdotal experience of myself and many of my colleagues.
Speaker 5:The other thing that I would say about the pivot during the pandemic, with regard to particularly domestic violence cases, our civil protection order docket was safer for litigants in many ways, and you heard Judge Madden and Darren talk about safety and how. We're always concerned about providing a safe environment for litigants, particularly in family violence cases. But when you are appearing online from a remote location and your perpetrator has no idea where you are or how to reach you, it's a lot safer for you. You're less intimidated by the face on the screen than you might be the face staring next to you at counsel table inside a courtroom in person.
Speaker 5:So there was a real heightened sense of safety and security in this remote environment. Fear lessened, People's shoulders dropped a little because they were safer and felt more secure during this period of time. Their physical safety was just enhanced by these remote proceedings. There was still an opportunity for the accused to be, you know, to have the opportunity to confront his or her witnesses against him. We still were able to provide that level of constitutional protection. Yet we did it in this remote proceeding where they were still face to face, but in a safe way, not physically intimidated, face-to-face, but in a safe way, not physically intimidated, and that, I think, made a very, very important difference during this pandemic time frame. So you know, in the old days when we had in-person hearings I can't tell you the number of times when I finished a hearing I would say okay, ma'am, you leave first and sir, you're going to be required to stay in the courtroom for 20 minutes until she safely left the area and then you may leave.
Speaker 5:And I would have a deputy stand by to make sure that you know the person against whom this order was entered wouldn't be able to leave and follow the victim or the survivor out the door and that sort of thing. I didn't have to worry about that in a remote context. She could be anywhere and still participate. He had his rights protected, she had her rights protected, but everybody was protected in a way that was just physically safer for everyone. So the pandemic did require, in many ways, a new way of delivering justice, but we were able to do it with all the procedural safeguards that the Constitution and our laws required, and we were able to do it in a safe way in a dignified proceeding. And so I think we learned a lot of really important lessons during the pandemic pivot, and we were able to improve access to justice for victims of domestic violence, for self-represented litigants and, frankly, for those who both showed up with lawyers.
Speaker 1:Yeah, I think you're right, obviously, but I think you offer some very interesting information about how victims kind of got. You know they got agency back a little bit by doing those proceedings virtually. Are you still doing virtual?
Speaker 5:proceedings. Yes, in some cases we are conducting virtual proceedings. Every state has a different sort of rule about that. Even within states, there may be some local jurisdictions who do things a little differently. In some cases it's a rule for this kind of case or this kind of docket. In some communities it's, you know, based on some other criteria set out by their supreme courts and so forth.
Speaker 1:but there are remote proceedings being conducted every day so, judge, you have a lot of interesting information and background on this and I thank you for that, and I I want to open it up to to Darren Mitchell and Judge Madden for their input about their experiences during COVID and in the courtroom.
Speaker 3:Thank you, maria, and thank you, judge, for that really excellent description of kind of the state of the art around virtual hearings now, and I can tell you, I do court observations around the country and work with courts all over the country, and I just to. I do court observations around the country and work with courts all over the country and I just to emphasize or reemphasize a couple of things that you said, judge Livingston. One is that you know this idea that you have anecdotal evidence of better compliance and, of course, that that is consistent with research around procedural justice. And when we talk about procedural justice, we don't do it just because we think it sounds good. There's actually, it's evidence-based, there's research establishing that, exactly what Judge Livingston said that if someone feels like the process was fair, they were heard, it was a neutral decision, et cetera, et cetera they are more likely to comply, even if they lost. And this is true for courts, it's also true for interactions with law enforcement and others, and so we are evangelists around procedural justice as something that all courts in the country should be striving for.
Speaker 3:A couple other quick things to say. One is that there are courts I've seen that are doing hybrids, lots of hybrid hearings, situations in which one party is in the courtroom and the other one is appearing remotely, and that takes special management by the court in terms of setting everything up so that not only technically, people can hear each other, but so that they don't speak over each other, that everyone understands what's happening in the process and there's just extra safeguards that need to be built in. But, again, it provides the flexibility that we that we just heard about, which is so important. Another thing, the last thing I'll say, around the virtual hearings, is that what I saw, which was really kind of interesting, interesting and I've seen courts now incorporate it into in-person hearings as well is it gave the court the opportunity as they had sort of a cattle call type situation where they had a bunch of people on Zoom, the court officer, court staff could come on and talk to all the litigants at once about expectations for the hearing, demeanor before the judge, courtroom decorum, but also help them to help make sure that any evidence that they wanted to present to the court was going to be in a form that the court could accept it, and for them to understand the process and their opportunity, how, what the flow of the hearing would be and things like that.
Speaker 3:So again, building on procedural justice helps people understand and know what to expect and they can then add their voice to the process, but in a really kind of neat way that most courts are not doing in person. And I've seen at least a couple of courts now try to do that as well in person, where a court officer will go out in the hallway and address the litigants around courtroom decorum and other aspects of the hearing too, around courtroom decorum and other aspects of the hearing too. So a lot of I think you know the judges and the court, the court administrators involved in this had a lot of pressure on them and had to do this really quickly, but they were so thoughtful and really developed some kind of promising practices that are, I think, way outlive the pandemic at this point.
Speaker 1:Yeah, that's excellent, so it sounds like it's here to stay right.
Speaker 5:Well, certainly in some communities. I mean, we set up YouTube accounts. Every court in my community had a YouTube account, and so we were able to make the courts open, because we have an open courts provision in our law, and so, in order to live into that provision, every proceeding that was conducted on Zoom, we also were able to live stream it on YouTube so the world could see what was happening. It was way more open than an in-person proceeding, because you know if you're not in that courtroom you don't see what's happening, but you could watch my court all day long from New Zealand and see what I was doing in my courtroom. And so we took into consideration, as Darren mentioned, lots of very thoughtful practices about how to deliver justice in this new environment, and I think some of those are here to stay. I hope that courts and jurisdictions will embrace the benefits of providing justice in this more accessible way, because I think it's a wonderful way to ensure not only procedural justice and fairness, but justice as a whole and access.
Speaker 5:People that live in remote communities can better access courthouses. You know, some people have to drive several hours to get to a courthouse if they live in a remote or rural community. That doesn't happen necessarily. We have judges in our state that ride a circuit that go to three or four different counties. Well, the judge doesn't have to travel four or five hours to get to a 10-minute hearing in one county and then another two hours in another county for a 30-minute hearing. He or she can do a million hearings from one location if they can do so remotely. It's just an enormous benefit and we ought to take what works and keep it going and learn from those lessons about how best to provide access to justice. I'm guessing Judge Madden also wants to tell you about her experience in the pandemic.
Speaker 4:Yeah, Well, I would concur with everything that Judge Livingston and Darren had to say. We did the same things and I can see the same benefits. It's still being done, and so I don't know that I have much to add. I will say that the hybrid format that Darren referred to is sort of the next step as we all struggle to step up to the electronic challenges we had during the pandemic that we probably would not have even been thinking about today if that hadn't happened.
Speaker 4:One thing that I want to add is this management of this virtual courtroom and the virtual waiting room.
Speaker 4:The dependence on a really good, personable clerk is really important. I relied so heavily on my clerk, who is great at just putting people at ease, being professional, making sure everyone felt respected, apologizing for waits that were inevitable, all that type of thing, and that really sets the stage for when the hearing actually begins and the litigants can expect the same treatment from the rest of the system, ie me. And one last thing, even though it's remote, I think we often, and myself included, assume that the parties are in separate locations, and so it remains incumbent upon us to continue to be observant, even though parties are appearing remotely. There are a handful of occasions. I don't know that it's that I'm not aware of any time that it happened in my courtroom, of any time that it happened in my courtroom but where I've heard somebody a judicial officer colleague have figured out that the parties were in the same place, just appearing on different cameras, and then you've got to really rein things in and figure out what's going on.
Speaker 1:In domestic violence cases.
Speaker 4:You're saying yes, so protective order cases yeah.
Speaker 1:I mean, I've seen some reports about that as well and it was super uncomfortable and not to mention dangerous for sure. I'm glad you brought that up, thank you. So we're going to switch gears a little bit for a moment. We're the co-executive director of the Legal Resource Center, a national nonprofit that provides training and technical assistance to attorneys and others who assist survivors of domestic violence in complex interstate custody cases. Based on your experience in that role and beyond, let's talk about entities such as non-lawyers, who play an instrumental role in helping victims prepare their court cases. Who play an instrumental role in helping victims prepare their court cases? How do these non-lawyers, working with self-represented litigants, help them to understand the process and obtain information to help prepare for the court experience?
Speaker 3:Yes, absolutely A well-trained and we're mostly talking about domestic violence advocates here who are non-lawyers, who are working with folks who are self-represented, and I really have to say a well-trained advocate is a vital resource for victims. And by well-trained I mean who understands court processes, what victims can expect, some understanding of what happens after hearings, what to do if there are violations, all those kinds of things that victims really need to know about. A well-trained advocate like that can be instrumental. So they certainly can exist victims with court processes, but it's really critical to understand that there are significant limits on what they can do if they're not licensed attorneys within the legal setting.
Speaker 3:If they're not licensed attorneys within the legal setting and it's a very complex area. It varies by state, but I do want to share some important considerations here, because I think it's important for folks to understand, and not cross lines, that they shouldn't be crossing into areas of unauthorized practice of law where you're providing the function, you're taking on the role of an attorney without being a licensed attorney.
Speaker 1:Yeah, good idea. Let's hear what those are.
Speaker 3:Yeah, of course. So the dividing line generally is that non-lawyers, like advocates, can't provide quote legal advice or legal representation. So they can share legal information about processes or information about legal processes, but they can't engage in what we sometimes refer to as applying the law to the facts of the individual situation.
Speaker 1:Can you give us like one example of doing that?
Speaker 3:Yeah, absolutely. Let's say a same sex couple comes to an advocate and has questions around their rights to maybe they share children around. What can be done if one wants to separate from the other parent? Will they lose any rights they have to the child? What does that look like?
Speaker 3:That's a complex legal issue that really varies from state to state. An advocate may know, may have worked in enough cases, may know, you know, may have talked to lawyers about this, and may know the answer to how laws around custody and parenting rights apply in safe sex couples within that jurisdiction. But they can't tell the person oh, if you go to court, you can argue for joint legal and physical custody of the child because you're considered to be a parent of that child or that you have to go through another hoop to get there. Instead, what they would have to do is say, ideally, refer them to an attorney and I'll talk a little bit about relationships between attorneys and advocates and trying to make that process work for folks. But really they need an attorney to give them legal advice for what to do in a process like this.
Speaker 3:But they can potentially tell the person about legal avenues. You can go to family court and you can try to pursue an action in family court. I can't tell you which one's going to apply in your situation, but if you ask them at the court, they may be able to tell you or talk to an attorney. That's just one example. It's really saying you know, this is the law and, given your situation, this is how these different legal standards or requirements will apply. Non-lawyers can't do that, Of course. They can't represent people in court, they can't make arguments for them in court.
Speaker 3:Many of the things are obvious, but sometimes that line between legal information and legal advice can be fuzzy or difficult to describe. One way we talk about it sometimes, which can be helpful in some contexts, is that a non-lawyer cannot advise a person a victim or otherwise about what they should do in terms of pursuing a legal action. They may be able to describe legal options that are available, what the victim could choose to do, but they can't use that should. In your situation, you should do this. This is the appropriate proceeding for what you're trying to accomplish, given your situation. So, again, it's a complex topic. We do training on this for advocates and for attorneys to help folks kind of understand that line, but it is an important one for non-lawyers advocates to be aware of.
Speaker 3:There are some things they generally can do with survivors in terms of helping them with court proceedings, so they can talk about what you can expect in court, how you should dress in court, what this process is that you're now entering. They potentially can help gather, help the person identify what information may be helpful to pursue a case. But that can vary state by state as well, and in some places non-lawyers can help petitioners actually complete paperwork, such as protection and order petitions, provided they act only as a scribe. They don't suggest what you put in the petition, but it says this here. What's your response? They can write it down. So for someone who's uncomfortable with it, who may have language access challenges, et cetera, et cetera, in some jurisdictions they can do that, but again this varies from state to state.
Speaker 3:So my suggestion for all the advocates who are out there listening to this is that you should talk to a lawyer within your community, a local legal services organization, legal aid, talking to folks there about where the line is drawn.
Speaker 3:And in addition to that, sometimes self-represented folks go into cases, start cases and then an attorney comes in and they're in a position where something was done before their involvement that made it more difficult to actually advocate for particular outcomes, and so advocates understanding that what some of those red flags are can be really helpful too. So we've worked with folks, we've helped convene conversations between advocates and legal aid organizations to discuss these kinds of issues and develop these really important relationships and I strongly suggest that folks do that to develop printed materials, online materials for self-represented. And then it gets in domestic violence cases that are vetted to make sure that they don't cross the line into legal advice, but do provide very helpful information to victims who are contemplating entering into a particular legal process, like trying to get a civil protection order, for instance. So those are just some initial thoughts around a very complex area.
Speaker 1:Yeah, I wish I had been taking notes, so I hope someone's taking notes on all of that helpful information Judge-represented litigants can do to help prepare folks to come to the courthouse.
Speaker 5:One simple thing really is to encourage self-represented litigants to actually come on a day that is not their day of court and just watch the proceedings, come and talk to the bailiff and meet the court staff and just you know, can I observe and let me see how other cases are being handled, let me see how the judge handles this or that, or, you know, watch lawyers do it, watch other people that are self-represented. I think you can learn a lot from that, but it also demystifies the process. When you've seen it before, you know what to expect. Certainly in my jurisdiction, people are welcome to come and use the technology that we have available at the courts to practice on that equipment on a day when we're not otherwise involved in a hearing. So you can arrange with the court staff to come and actually use the equipment, learn how to use the document camera, learn where to put your exhibits, how to get an exhibit sticker from the court reporter.
Speaker 5:You know all of that where you're going to sit, where, when to stand, when to sit, every every court has its own rules about sort of local rules around decorum, and so there's a lot of very practical things that people can do to demystify the process and to learn just generally what to expect and how things are going to go, in addition to the more complex concepts that Darren was just speaking about. Practice makes perfect.
Speaker 1:Yeah, that is great advice. I didn't know that you could do that, but I would encourage people to do the same. Since her retirement, judge Livingston has also served as the interim director of the Texas Access to Justice Commission, as a mediator and as a legal consultant. She is also an instructor in the practice court at Baylor University School of Law and has dedicated her legal career to promoting access to justice for all. So, judge Livingston, as judges prepare to oversee proceedings where victims are representing themselves, they also face challenges. Could you share with us what some of those challenges are and an idea of a judge's day-to-day practices to improve handling cases with self-represented litigants?
Speaker 5:Well, every professional, and certainly judicial professionals, need to be concerned about their work-life balance. I think fatigue is a real issue when you hear over and over again the things that people do to one another that are unkind, violent, dangerous, difficult. So you have to guard against fatigue and burnout. Judges and court staff are certainly prone and subject to secondhand trauma secondhand trauma and so I think you have to be concerned about your own wellness and the wellness of your staff and take steps to balance work-life responsibilities, but also pay attention to what it means to take care of your own wellness and mindfulness. So there's that you can also, on the other hand, fall victim to what I like to call the insensitivity of violence. I will never forget sitting in a room of colleagues and someone said well, how bad was it? Was anybody bleeding? As if to suggest that if there was no blood, it wasn't a serious violence case. That kind of insensitivity to violence is another thing that we have to guard against, because that's a really dangerous mindset for a judicial officer to be in Patience when you're dealing with self-represented litigants, when you're dealing with people who are in circumstances where they are excited and emotional and have been the victim of some terrible tragedy. Oftentimes, judges are challenged by requiring a lot more patience than they might in other kinds of cases, and so I call on judges to be extremely patient. We have to often redirect, maintain some sense of what's relevant, what we're going to do today, what we're not going to talk about today, and so there's a fair amount of redirection that has to happen. Active listening skills Judge Madden has already talked about Explaining things so that people understand what the expectations are and what's required of them, what we're going to do, what we're not going to do, how this is going to work All of those things and all of those strategies are really important in these contexts. You have to balance letting people talk and tell their story versus staying on topic and staying within the time limits allowed for a specific type of hearing. Some only get 20 minutes per side, some might have an hour per side, so you have to work within those limitations, and doing these things will help keep you on track.
Speaker 5:Paperwork is one of the biggest challenges, because you cannot always count on particularly a self-represented litigant or a litigant who's really emotional to really understand the need to craft and draft an enforceable court order.
Speaker 5:And so my one tip, my one piece of advice for today is something Darren sort of alluded to, and that is forms.
Speaker 5:If you have a form order, you already know what your law in your state requires regarding findings that you have to make to order a protection order, for example, and so if you're going to enter a protective order, those statutory requirements and statutory findings can be preprinted in a form and you can check a box.
Speaker 5:You can fill in additional information with specific findings, specific findings. But if you have a form order, then everybody leaves the courtroom that day with a signed enforceable order and a copy of it in their hand that they've been served with in open court. That, to me, is the best way to make sure that the matter is concluded, that everybody knows what they're expected to do or not do, everybody is told what's going on and they understand their responsibilities and your court process is protected and the order is signed on the day of the hearing. That's my tip Create form orders and use them to the fullest extent, because I think it'll save you and your litigants a lot of time and energy and it will improve your ability to get compliance and you will have fewer enforcement actions, and if you have to have an enforcement action, you'll have the paperwork you need in order to enforce the order you've entered.
Speaker 1:So just to clarify, because I'm not very familiar with the process bring the form to the courtroom and get it signed that day. Is that what you're saying?
Speaker 5:I'm suggesting that courts have those forms available. Here's what I like to tell judges when I speak to judges At the end of the day, it is your court order, it is your signature that goes on. The court order that says so-and-so must stay 200 yards away from someone else. That's your court order. Judge, courts can have a form order. You can require the litigants to fill it out, but before they leave that courtroom you want to review that court order, make any changes to make sure it's accurate and has in it all the information that you've ordered in the case, and then you put your signature to it. It goes to the court file copies to the parties. Everybody leaves with clear rules and expectations about what they're to do and not to do and the court order is on file before they leave that courthouse and I think that will help enforcement. I think it will provide clarity to the parties about the do's and don'ts and I think if the court is prepared with form orders, they can customize for any particular case. That goes a long way to making sure that everybody gets what they need.
Speaker 5:If you depend on a self-represented litigant sometimes, if you depend on a lawyer to go back to their office and draft a document that says court order on it. You might not ever see it again. If you do that, you might want to, on the day of the hearing, create another date by which everybody has to be back with a copy of that order. So if you're going to let somebody go away and draft it, enter an order on that date that says I want to see you back next Friday at 9 am for an entry date so that we can get the order signed on that day.
Speaker 5:My tip is, in cases that are fairly prescribed by law in terms of the kind of findings you must make to enter, say, a civil protective order, that's pretty relatively preordained, if you will, in terms of what has to be found. The judge can then customize that order. But it's got the basic statutory language in it already and the judge can then customize it based on the evidence they hear. In that case everybody walks out with a signed order. That's what I'm suggesting.
Speaker 1:So when we have these court orders, these are usually cases that can turn violent and for some reason, you require that kind of protection as a victim of domestic violence. Darren, can you offer some insight into what judges should keep in mind about cases like those with self-represented litigants and, for example, the safety considerations related to intimidation and coercive controlling tactics in court?
Speaker 3:Sure. First off, a key thing for judges and actually everyone involved in these cases is to understand that when a victim appears before the court, they are likely at a heightened state of endangerment At that moment and beyond. There have been many studies that have documented what we call separation violence, and that's the research based understanding that a victim is at greatest risk for abuse and or greater risk for abuse or lethal violence. Greatest risk for abuse and or greater risk for abuse or lethal violence, even when they take steps, including coming to court, for an order to separate themselves from from their abusive partner yeah and jeopardize that person's power and control, and so that's something we should all understand.
Speaker 3:You mentioned, um, intimidation, coercive control, just so we're all on the same page.
Speaker 3:What we're talking about here are, um, generally non-physical forms of abuse that a person uses to restrict another person's safety and autonomy using intimidation, threats, whether they're explicit or implicit, or by requiring them to comply with rules that they set, and Judge Madden, I think, really did a nice job of talking about how judges can be attuned to these types of, how a course of control shows up in the courtroom, in terms of body language, also, when it looks at the other person, and even we see things like trying to gaslight the victim in the court by trying to humiliate them, confuse them, saying everything is because they're having a mental health or a substance use issue, et cetera, et cetera things like that that judges should be attuned to in the court.
Speaker 3:A final thing that I'll mention, which we see more and more, in which we see a growing number of states enacting laws to help judges address, is what we sometimes call litigation abuse, and that's where a person who is typically a forcefully controlling abuser uses the court process itself as a mean of furthering their power and control by bringing repeated court actions, motions for modification, for contempt, for things like that, and judges can and should step in in these cases and put a stop to that and, as I said, some state laws are now explicit about court authority to do so, because of course, that can have severe financial consequences and significantly intimidate, disrupt the victim's life. So those are just a small number of things to be concerned about in the court around coercive control.
Speaker 1:Referee Madden also spearheaded the development of the district's family court firearm surrender protocol and civil protective orders required under both state and federal law. In 2019, referee Madden was one of 13 judicial officers in the country selected as a fellow to participate in the Judicial Engagement Network Inaugural Fellowship Program, which identifies and brings together judicial offices to promote cutting-edge practices that result in better outcomes for families, provides opportunities for judicial officers to craft and hone leadership skills, and supports the passing of knowledge and expertise to the next generation of judicial officers. Judge Madden, can system change help improve access and responses to self-represented litigants in domestic violence cases, and how have you seen that happen?
Speaker 4:We started looking at this in my district, hennepin County, several years ago and at the time we had 15 judicial officers in family court who heard the civil protective orders and you could easily get 15 different outcomes, 15 different provisions, etc. And while all of our caseloads were full. That wasn't a very good way to serve victims of domestic violence and their children. So in 2016, we piloted something called a child-related relief calendar for civil protective orders and on that calendar, any case where parties had a child in common and there was a hearing required because some type of child-related relief was requested went on that calendar. So, for example, custody issues, parenting time issues, child support treatment or programming went on those calendars. They were separated from cases where parties did not have children in common. The focus of that calendar, those calendars included providing petitioners and children with financial relief that is allowed by our state statute but not consistently provided due to time constraints and full civil protective order calendars. Providing custody and parenting time arrangements that protect the safety and well-being of both petitioners and their children. Holding the offending parent accountable for abusive behavior and, lastly, establishing the least restrictive parenting time arrangements, considering all of the above priorities. So we began in 2016 with four out of our 15 judges on that pilot calendar and the purpose was to implement some new practices, make strategic changes as we encountered challenges and we learned from our experiences in order to maximize the quality of the Corps' handling of those cases. It was a lot of work that we got through that first year and made lots of changes. A year later, we determined that we needed to double the number of child-related relief calendars that we were hearing, and we added another three, so seven out of 15 judges and a year later all judges began hearing those calendars. So the pilot became fully implemented and became a significant procedural change that reflected a more consistent handling of those cases and better outcomes for families and children.
Speaker 4:Prior to that time, what was happening is we would issue our standard two-year order for protection. Most of these other issues weren't addressed due to time constraints etc. And so once the two-year order expired or was dismissed typically at the request of a petitioner before that two-year expiration date, nothing had changed, and so we decided to slow the process down and we took more time to get information about what's going on with custody and parenting time. What kind of arrangements are really going to be in kids' best interest? Do we need to appoint a guardian ad litem to help us figure that out? Safety needs to be at the top of the list, so maybe the guardian ad litem can help in that regard. So maybe the guardian litem can help in that regard. We slow down to address the issues of child support, because addressing child support can remove an obstacle to safety if a petitioner is financially dependent on the respondent for support of the children, and that's we've talked about the role of advocates, and that is a significant role that advocates can play is helping a petitioner get that financial information and have it ready to the court, because that's not something a petitioner without that assistance would typically think of.
Speaker 4:Oftentimes we heard that petitioners just want the violence to stop. We hear I miss him, the kids miss him, and so taking the time to really tailor the relief to this family and focus on remedying some of the underlying issues that have resulted in the family getting to this point. So, for example, providing domestic violence programming for the respondent, ordering a chemical health assessment if the domestic violence seems closely connected to chemical use or misuse, therapeutics for the respondent, the children, etc. Doing supervised parenting time you can't just well, you can, but it's probably not in kids' best interest to just issue supervised parenting time for a period of two years and have that needs to be done, getting a chemical health assessment finished and expanding parenting time if appropriate, either removing it from supervision or expanding the time and frequency.
Speaker 4:One of the other things we did was implement a same-family, same-judge policy. So if we had a family in with a civil protective order that later filed a custody case or a divorce case, that same judge would hear that heard the protective order case, would hear that case, which allowed for more consistency of the family. So we had no illusions about solving domestic violence in its entirety as part of this project and shifting calendars, but the shift in focus anecdotally did result in better outcomes for families and kids.
Speaker 1:Yeah, that's an excellent example and I love the idea of you know. One judge for the family overseeing all of the cases makes a lot of sense and probably can result in better outcomes for everyone. Unfortunately, we are out of time and this is such a complex topic. I bet you we could learn more about it. Darren, what resources do you have for us to learn more about self-represented litigants, as well as the National Council of Juvenile and Family Court Judges?
Speaker 3:Yes. Well, as far as the National Council, or NCJFCJ, is concerned, I mentioned our website, ncjfcjorg. The vast majority of the information there is tailored to the needs of judicial officers and other professionals who work on domestic violence cases, so if you fall in those categories, please check it out. We also did produce, several years ago, a series of self-represented litigant publications for self-represented litigants about obligating court processes, in which we collaborated with the Better Women's Justice Project. Those are available on the website as well. And for survivors or victims who can't find a lawyer to represent them or cannot afford a lawyer, we strongly, of course, suggest working with an advocate, if you can find one in your local community, for safety planning purposes and, of course, to get information about the legal processes. As I mentioned earlier, you can get some information without getting legal advice or having representation information without getting legal advice or having representation. And one of a primary way to get to find out who your advocacy organization is is to call the National Domestic Violence Hotline, which is 1-800-799-SAFE, that's 1-800-799-7233. They can provide assistance and they also can connect you with your local domestic violence program.
Speaker 3:There are a couple of websites as well I want to just briefly mention, because they can be very helpful too. One is there are a series of law help websites that are developed and maintained by legal services organizations, and many of them include tips for self-representation. So, for example, in North Carolina it's lawhelpncorg, but if you go to lawhelporg it has links to all the state websites. Finally, victims can go to womenslaworg that's womenslaw all one word, org which is run by the National Network to End Domestic Violence, and it contains just a myriad of helpful information for survivors, as well as information on self-representation. So any of those resources, I think, will be very valuable.
Speaker 1:Excellent. Thank you all for talking with me today.
Speaker 3:Thank you.
Speaker 5:Thanks very much for having us.
Speaker 1:Thanks so much for listening. Until next time, stay safe. The 2025 Conference on Crimes Against Women will take place in Dallas, Texas, May 19th through the 22nd at the Sheraton Dallas. Learn more and register at conferencecaworg and follow us on social media at National CCAW.