For several years, Idaho has been experimenting with an “Informal Custody Trial” (ICT).  They have recently released the evaluation, and we have permission to post it on this blog here, Informal Custody Trial Evaluation Report.

Big kudos to the state for the experiment, and for evaluating it.  As so often, these pioneering experiments raise more questions than they answer, and this is an important contribution.  As described in the evaluation:

On September 29, 2008, Idaho Rules of Civil Procedure 16(p) was adopted to include a Consent and Waiver for Informal Custody Trial (ICT). The basic premise of the ICT is suspension of the formal rules of evidence, waiver of the rules of discovery, and waiver of the normal question and answer format of trial that allows litigants to directly present their case, issues, and concerns to the court. The ICT model excludes cross-examination, a procedure that can increase conflict in an already highly emotional and often hostile environment.

In the ICT model the judge still directs the proceeding, allowing the parties to speak, and the judge is allowed to ask parties additional questions designed to clarify and keep the testimony focused. Although the parties waive their rights to formal rules of evidence and other trial rights, including the right to direct and cross-examination, the judge still hears the evidence, makes a decision for the parties, and enters the orders based on his or her decision. This decision may consist of creating, modifying, or enforcing an order.

Based on observations of court proceedings around the country in recent years, this Idaho procedure may reflect the standard procedure in many states for dealing with cases in which both parties are self-represented, Judges take control of the courtroom process and proceed in this informal manner – ignoring the standard question and answer format of presenting evidence and using the rules of evidence only as a guide to the weight to be given to evidence introduced. The major difference is with respect to waiver of the formal rules of procedure: under the Idaho ICT there is a formal, written waiver; in other jurisdictions there is no such waiver.Some of the more detailed findings from the Idaho ICT are described as follows:

An encouraging finding is that 73% of parents reported that they understood the ICT before agreeing to participate. The data also shows that parents overall more often than not agreed that the ICT was fair (56%), focused on the best interests of the children (57%), that decisions made were good for the children (55%), and were glad they had decided to do an ICT (57%). Of note, statements on whether or not the ICT focused on the best interests of their children or whether the decisions made were good for their children garnered the most “strongly disagree” responses (36% strongly disagreed/disagreed for both statements). Also of note, parents were the most evenly split on perceptions of whether or not the ICT model decreased conflict: 34% agree/strongly agree, 31% neutral, and 34% disagree/strongly disagree.

Parents were also presented with two questions about their perceptions of the judge presiding on their case. The majority of parents (74%) agreed or strongly agreed the judge treated them with respect, and 60% believed the judge listened to them.

 As the report itself emphasizes, there was no survey of those who did not participate in the ICT, or affirmatively chose to refuse participation, so there are obviously huge limits to the inferences that can be drawn, but at least questions can now be asked about what might have shaped these results.

Some of the most interesting data comes from the second half of the study in which the participants were asked about the outcome.

 In the middle of the data collection period, it was determined that the parent survey should be enhanced with an additional statement: “The outcome of the informal custody trial was in my favor.”  This statement was added in order to better understand the extent to which the outcome of the ICT influenced parent responses to other survey questions.

Thirty-two (32) of the 75 respondents completed a survey with this additional question. A comparison was then done of those who believed the outcome was in their favor to those who did not believe the outcome was in their favor. Individuals who agreed or strongly agreed the outcome was in their favor also more often believed the ICT was fair, focused on the best interests of the children, and believed the decisions were good for their children.

 The report cautions that “This is a small number and making conclusions on this data is discouraged. The data presented is for informational purposes but cannot be considered conclusive. More study is warranted.”

Bearing that caution strongly in mind, however, the data is interesting:

As a general matter, it is unavoidable to conclude that litigants’ views were very significantly correlated with the outcome, and the extent of this effect (0% versus 100% for one question) means that even a small sample must be viewed with respect.

One the other hand it is interesting that more of the “outcome not in favor” group thought that the judge “listened to me” (23%) or “treated me with respect,” (42%) than that the ICT was fair (0%).

When I first read these results (and indeed for a time afterwards), it seemed to me that they were profoundly inconsistent with the procedural justice research, which teaches us at the most general level, that litigant satisfaction is driven more by how people are treated – specifically by whether they feel listened to, treated the same as the other side, treated with courtesy and respect, and whether they trust the judge – than by whether they win or lose. This, of course, is not consistent with the general expectation of the bar or judiciary, and this research has had a huge impact on facilitating a discussion within the judiciary about engagement as opposed to passivity.

The Idaho study collected data on two of the four procedural justice factors, but not on the other two (an even playing field for the participants and trust in the judge as a benevolent figure who cares about the parties and visibly seeks the best resolution of the proceeding. If fact, from this research we do not know enough about what really transpired in the ICT courtrooms to suggest an explanation of the high correlation of negative feelings about the process and the litigant’s perception of losing the case. However, the findings are sufficiently disturbing that they warrant further such studies. Idaho will soon begin implementing new family court rules under which the rules of evidence will be inapplicable in all family law hearings unless both parties stipulate to their applicability. Idaho would be well advised to continue to gather data on litigant outcomes and litigant satisfaction under the new procedures, perhaps with the addition of a control group of cases in which the parties opt to make the rules of evidence applicable to their hearings.

In any event, forcing people to surrender formality is a path, regardless of constitutionality, that should be treated with great caution.

In the end, it is our job to ensure engagement and fairness regardless of procedural environment, as well as to understand what procedural environment best produces engagement and fairness.

Much more generally, obviously, as pointed out in the Report, we need proper control data, and really a randomized experiment, in which some would be offered, and others would not, the ICT.

Similarly, we need better data on what happens in actual ICT cases, and thinking about which procedures should be waived.  I, for example, would prefer to full waiver of cross examination, a system in which the litigant is asked by the judge if there are any questions that the litigant would like the judge to ask the opposing party.  This seems to work quite well in some administrative procedures, such as New York unemployment hearings.  While it does away with the element of surprise, it keeps the value of the admission by the opponent, which is far more useful that the assertion by a party on their own behalf.

This is totally speculative, but it might also be that additional judicial probing skills might increase the sense of fairness. In particular, I think that when a judge feels that a litigant has not carried the burden on an important element, the judge should so inform the party and ask if they have any other evidence.

More generally, we should be thinking about how to design a new set of friendlier procedures that nonetheless improve satisfaction and also actually improve substantive outcomes (an issue not explored at all in this evaluation, yet obviously critical.)

All in all, there is lots here to think about, as we try to make the system that deals well with the reality that most people just do not have lawyers.

Note: Special thanks to John Greacen, who helped particularly with this post.  Opinions and faults remain my own.