The Power of Court Watching

by Jeff Golden, April 2000

After having been a good citizen all his life, family court has stripped a father of his home, his car, his bank account and his children. He is in a daze of disbelief, but he still has faith in the American system of justice. His ex-wife has not had his name removed from the title of the car she was awarded, and now she is withholding the children at his parenting time.

He wants to return to court to right the wrongs, but he can no longer afford to pay his lawyer. He decides to try it pro se (representing himself). He picks up a "pro se kit" at the courthouse, carefully follows all the instructions, and files and serves his papers.

His day in court arrives. He patiently waits for his turn to present his case. He sits there while the judge hears all the other cases. Finally, only the father, his ex-wife’s lawyer and a few court employees remain in the courtroom. (The ex-wife isn’t even there.)

The judge calls his case. He and the lawyer sit at the counsel tables. One of the guards hovers menacingly behind him. The judge asks him to state his name, then says "I’ve read your papers," and invites his ex-wife’s lawyer to respond.

The lawyer goes into a dissertation on how the father’s complaints are without merit. It is full of lies and distortions. He raises issues that weren’t in the papers. The father waves his hand and tries to tell his side of the story. The judge gruffly says "keep quiet, Mr. Jones!"

When the ex-wife’s lawyer is finished, the father still isn’t allowed to say anything. The judge renders his decision. The judge rules against the father on every issue, reduces his already insufficient parenting time with his children, increases his child support, and orders him to pay his ex-wife’s lawyer’s fees.

The lawyer is charging for an hour of phone conversations with his client, three hours preparing their response papers, three hours waiting for the case to be heard today, and even a half hour of travel time driving to the courthouse. He charges $200 per hour, so he wants $1,500! The judge gives the father thirty days to pay.

Frustrated and humiliated, the father leaves the courtroom.

What went wrong? Why was this father treated so poorly? He was the victim of the unwritten rules of family court.

First, "family court" is a misnomer. It should be called "women’s court." Women go there to get something; men pay. The mother was treated as a damsel in distress. The judge, who was probably raised in an upper-middle class family and taught to be chivalrous to women, thought he was Sir Galahad in shining armor, charging in on his white horse to rescue her from the fire-breathing dragon.

Assuming that no one has committed a criminal act, when they walk into the courtroom for the first time and the judge knows nothing about either party, men have less than a forty percent chance of winning. They have to score percentage points early just to get even. The father’s first mistake was being the litigant with the penis.

Second, the father arrived in court alone. He should have brought an audience. If you were going to commit a crime or otherwise behave improperly, you wouldn’t do it in public. You would try to make sure there were no witnesses. The same thing applies to a judge. If he is going to break the rules or act improperly, he doesn’t want a lot of people watching.

Also, while women are damsels in distress, the court thinks of men as dangerous rogue wolves and "loners." That’s why the guards were hanging around. Their job is to pounce on the guy when he leaps over the bench and wraps the his hands around the judge’s neck, or pulls out his Uzzi and starts spraying bullets.

Third, the father hadn’t done any homework. Oh, yes, he may have watched Perry Mason or Matlock re-runs on TV a few times, so he thought he knew what goes on in a courtroom. He may even have once defended himself for a traffic violation, but he didn’t find out how "women’s court" works.

Fourth, he didn’t know that the judge and the lawyer are buddies. No, there was probably no overt conflict of interest (although they might have been former business partners, or golfing buddies, or, in one actual case, neighbors and former political running mates), but they do know each other, or at least they are acquaintances. The lawyer is in that courthouse, presenting cases to that judge every day.

And last, he didn’t know the rules. If he had never played poker, and he went to a casino and sat down at a poker table and put his life savings on the table, he might win, but more likely he would lose it all before he mastered the game. If he had first read a book on poker, he might do a little better. If he spent some time watching others play, he would do better still. If he attended poker school, he would do even better.

What could this father have done differently? Court watching! What’s that?

Court watching is sitting in the courtroom and observing what goes on. Why would I want to do that? Because, since you are not a lawyer and you never went to law school, for you court watching is "Law School 101." You will observe other cases and find out what are the judge’s "hot buttons" (what he likes and dislikes). You will learn what arguments lawyers are making in other cases that you might be able to apply to your own. You will see what mistakes other pro se litigants make and how the judge treats (or mistreats) them. You will learn precedent cases, points of law and rules of court and how they are applied.

How did we learn the power of court watching? Shortly after FACE was founded, a member was in a position very similar to that of the father in the example at the beginning of this article. He had run out of money for lawyers. He was going back to court pro se over and over, but was getting nowhere. He did notice, though, that the judge was always hearing his case last and, with no witnesses present, was more disrespectful to him than to people in cases heard earlier in the day.

He asked some fellow FACE members to come with him to his next motion hearing to provide moral support, and so he wouldn’t be talking to an empty courtroom. When most of the cases had already been heard, the judge was shuffling through some papers on his desk and looking around the courtroom. He said "I only have three cases left to be heard, and there appear to be too many people here."

No one said anything. After a long pause, the judge asked "Does anyone want to tell me what they’re doing here?"

One of the court watchers stood and said "We are here to observe the Smith case. We want to see if Mr. Smith’s rights will be violated today."

Another long pause, then the judge said "Alright, I’ll hear the Smith case next."

Mr. Smith didn’t do much better in court that day than he had in the past, but he did notice that there was a 180 degree shift in the judge’s attitude toward him. He decided right then to never again go to court alone.

Why did this happen? Remember the "rogue wolf" theory? The judge learned that day that Mr. Smith is not a lone wolf. He is a member of a community. He has supporters who are interested in his and his children’s welfare and the outcome of his case.

Other similarly situated FACE members wanted -- needed! -- to be pro se, but didn’t have the confidence to do it. We began a formal court watching program. When a pro se FACE member went to court, as many of us as could would go along with him. We wanted the judge to know who we were and that we were observing him, so we all wore our FACE buttons.

We also wanted the judge to know who we were there for, so instead of remaining seated all around the courtroom, when our member’s case was called we all moved forward and sat as close behind him as we could. We provided moral support for the guy whose case was being heard that day, and encouragement for the court watchers who also wanted to become pro se.

People who had never represented themselves in court would sit next to more experienced pro se litigators, who would explain what was going on and point out key events. All of the FACE court watchers brought paper and pencils with them, and took notes on all of the cases. Later, they would exchange information and discuss what they observed. They would debrief the FACE litigant, telling him what he did right and what needed improvement for next time.

We bought copies of the Rules of Court and studied them. Sometimes we would observe the judge blatantly violating the rules or otherwise acting improperly. When we did, we would either write to the judge and give him an opportunity to correct his mistake, or we would all send complaints to the Advisory Committee on Judicial Conduct.

We knew we were being effective when lawyers began complaining about us being there "to intimidate the judge." This is the most asinine thing I ever heard. The judges have the sheriff’s officers, the metal detectors at the front door, the handcuffs, the jail cells, the power to sign the court orders. How could we possibly intimidate them?

We weren’t there to intimidate anyone. We were just citizens observing the judicial process in action. The judge and other court employees are "public servants." We are the public. We just want to see how our servants are doing their jobs.

Sometimes judges tried to eject us from the courtroom. Sometimes, when a FACE member’s case was scheduled, the judge would have the bailiff lock the courtroom door before all the court watchers were inside. Its not the judge’s courtroom; its the people’s courtroom. Our taxes paid for the courtroom and everything in it. Although there are some instances when a judge is permitted to close a courtroom (i.e. cases involving the welfare of a child -- abuse, termination of parental rights, etc.), courtrooms and what happens inside them are open to the public.

When we were improperly barred from court, we would complain to the assignment judge. A phone call would be made, and the courtroom would be reopened to us. Later we learned to avoid this problem by having all the court watchers enter the courtroom before our guy goes in.

Since New Jersey judges are appointed (rather than elected), we were also able to use the information we gathered while court watching in another way. After an initial seven year term, judges go through a "confirmation" process to become "tenured" (appointed a judge until age seventy). Because we had observed and taken notes on untenured judges so often, we developed a database of judges’ improprieties. When judges’ confirmation hearings were held, we would notify the litigants whose rights were violated, and go to Trenton with them to testify against reappointment.

Court watching is your most important resource. Often, people say "I can’t go court watching. I can’t afford to take the time off of work." Wrong! Actually, you can’t afford not to take time off of work. Consider it an investment in your and your children’s future.

Fridays are "motion days" in New Jersey family courts. Usually, all motions are heard in the morning. Let’s say, for example, that you net $500 a week, you pay $150 a week in financial child support, and your youngest child is three years old. If you arrange to take off ten Friday mornings to court watch, it will cost you $500. (One half of $100 per day is $50; multiplied by ten Fridays equals $500.) You will be paying child support for at least another fifteen years. If you learn something that you can use to reduce your child support by only $10, you will save at least $7,800 before your last child is emancipated! That will go a long way toward your child’s college education.

If you learn how to effectively oppose your ex-wife’s counsel fees, she will have to pay her own lawyer. If you do this a few times, she will learn that it is very expensive for her to continually litigate in court, and its less expensive and far less stressful to just resolve issues between yourselves.

Some people ask "Can I just go into any courtroom, sit down, and watch what’s going on?" Remember the 1962 movie "To Kill A Mockingbird?" It stars Gregory Peck as Atticus Finch, a lawyer appointed to defend Tom Robinson, a black man falsely accused of raping a white woman in Alabama in 1932. Before the trial, the townspeople spent most of their time sitting on park benches in the public square, but during the trial, they all filed into the courthouse and packed the courtroom. There was no TV in the 1930s so, when there was a trial, that was their entertainment.

There is a tradition of open, public courtrooms in America, and we consider countries where trials are held in secret to be repressive. It’s your courtroom. You own it; the judge doesn’t. Your taxes paid for it. Go in and see what your tax dollars are buying.

"What if the guard asks me what I’m doing there?" Just tell him "I’m a citizen, observing the judicial process in action." If he gives you a hard time or tries to exclude you, complain to the assignment judge and file a complaint against him with the sheriff.

"Can I bring anyone with me?" Yes! In fact, never go to court alone. Bring as many people as you can. Bring your mother, your father, your sister, your brother, your elderly Aunt Sylvia, your retired Great-Uncle Joe. Try to all sit together. Make the judge know that you are a member of a community, and that people care about you and your children’s welfare. If the judge acts improperly or treats you unfairly, they can all send letters to the Advisory Committee on Judicial Conduct.

"Won’t the judge be annoyed with me being there so often?" Maybe, but are you satisfied with how he has treated you without you being there? If you read this far, you’re probably not. The judge’s job is to dispense justice fairly. If he had done that, you would have no need to come back. Make him do his job properly. If he gets really annoyed, all he has to do is decide the case in your favor, and he’ll never see you again.

Now, my favorite court watching success story: John Doe joined FACE shortly after his divorce. There were some issues that had not been fully resolved in the final order, and he wanted to file a motion. We helped him write his papers, told him how to file them, and invited him to come court watching with us. He could see the benefits of court watching, but was uneasy about being seen in court with FACE members.

A few days after filing his papers, John phoned the court and asked to which judge his motion had been assigned. For the next four Friday mornings, he observed in that judge’s courtroom.

For the first two weeks, John arrived at 9:00 AM and observed all the motions heard that day. He took notes on all the cases. When all the motions had been heard, he left and went back to work. He didn’t understand all of what he observed, so he asked us about it.

On the third Friday, something strange happened. About three quarters of the way through the cases, the judge asked everyone in the room for which case they were there. When John was asked, he said "I filed a pro se motion that you are going to hear in two weeks. I’m not a lawyer, and I don’t understand everything that’s goes on here, so I’m here observing to prepare for my own motion."

All judges are egotists, and this judge was no exception. He was pleased to see a mere mortal pro se litigant worshiping at his feet. He said "Well, we’re very glad to have you here. You are, of course, welcome to observe. If there’s anything you don’t understand, feel free to ask my staff about it." John sat through the rest of the cases that day, then left.

When John was there the next week, about half way through the motions the judge made eye contact with him. The judge gave him a nod and a little smile, and John nodded back to him. They were now "acquaintances." They nodded "hello" when they saw each other.

John Doe’s motion was heard the next week. This was his first time in court as a pro se litigant, and he won on every issue!

In recent years, FACE members have become complacent about court watching. When we were very actively court watching, we had a "court watching coordinator" who kept track of scheduled court dates, members available to court watch for others, and members who have court watched in the past. The coordinator would make sure observers were present at every pro se hearing. We need someone to volunteer for that job again today. With internet and email capability, it will now be even easier to communicate. To volunteer for this job, phone the FACE hotline at 856-786-FACE, or email info@facenj.org.

If you are a FACE member who would like court watchers at your hearing, let us know what the issues are, and when and where it will be heard. Remember, court watching is an educational process for everyone involved -- the litigants, the court watchers, the judge, the lawyers. If you don’t have an interest in or time available for court watching for your fellow FACE members, don’t be disappointed if they don’t come to court for you.

Copyright 2000, FACE New Jersey