A family court judge bent on disposing of one of his oldest cases wrongly rushed a litigant who had just fired his lawyer to try his case pro se, rather than giving him to time to hire a new one, a state appeals court held on Thursday.
The litigant "had a due process right to be represented by counsel if he wished" and "suffered substantial prejudice as a result of representing himself," the Appellate Division said in Olszewski v. Olszewski, A-2000-11.
Robert Olszewski Jr. and his wife Christine appeared for trial on Oct. 26, 2011, with their attorneys, before Gloucester County Superior Court Judge Robert Becker Jr.
Olszewski’s lawyer, Christie Cockerill, had moved for an adjournment two days earlier in order to retain an independent expert on the issue of custody of the couple’s two daughters.
Cockerill told Becker she was prepared for trial but said she and Olszewski had a communication breakdown.
Olszewski confirmed he no longer wanted Cockerill’s representation.
Becker allowed Cockerill to withdraw and, on learning that Olszewski had not retained substitute counsel, said, "Well, then you’re proceeding on your own. … If you’re agreeing that you have thwarted her efforts at representing you, that she prepared a Trial Memorandum and you did not allow her to finish it, that’s fine. It’ll proceed without her."
Becker directed Cockerill to brief Olszewski on the file, and soon after proceeded with trial over Olszewski’s objection, citing prejudice to the defense.
Becker said: "Well, you are your own attorney because you fired your attorney of record; right? … And I am not allowing you — you have appeal rights at the end of this but … for the record, I am not allowing you to control the Court’s trial schedule."
Olszewski said he had no idea how to proceed and rested his case.
On the second trial day, Olszewski inquired about having Cockerill return, but Becker refused, remarking, "You released her yesterday. I didn’t. You did."
Becker recessed the case for a settlement conference, in which he participated, but reconvened the parties for more trial proceedings after the weekend.
Olszewski still had no substitute counsel but had consulted with a friend who was a lawyer. Becker — apparently deeming Olszewski less than forthright about having consulted an attorney — said he found Olszewski completely incredible and questioned his good faith.
The judge initially considered recusal because of his participation in the settlement conference and his opinion of Olszewski, but, at defense counsel’s urging, pushed forward with the child custody portion of the trial.
Prior to the testimony from expert David Davenport — a psychologist hired by both parties who had opined that the mother should have primary residential custody — Becker said he’d likely rule "somewhere between" Davenport’s recommendation and Olszewski’s request for equally shared custody.
Becker ultimately found Christine Olszewski more fit to raise the children and granted her primary residential custody. The judge also ordered Olszewski to pay $2,450, two-thirds of Davenport’s fee, and $15,780 to satisfy two-thirds of defense counsel fees.
Throughout the trial, Becker repeatedly waved off Olszewski’s requests for an adjournment, expressing concerns about the age of the case, the lack of an alternate case to try in the event of a continuance and the children’s well-being.
Appellate Division Judges Marie Lihotz, Mitchel Ostrer and John Kennedy
said Becker "should have clearly and fully advised plaintiff of the consequences of his decision to relieve counsel before inquiring whether he wished to discharge his attorney."
The prejudice to Olszewski in going pro se was much greater than to the defendant had the matter been adjourned, which would have been remediable by a monetary sanction, they said.
Olszewski "repeatedly demonstrated he was ill-equipped to represent himself" and surrendered his case "by essentially throwing up his hands, relying on his complaint … and then resting," they said.
As for Becker’s scheduling concerns, "We appreciate the scarcity of trial time," the court said. "However, trial courts routinely schedule a ‘back-up’ trial to assure that if one case does not proceed, trial time is not unused."
Becker "made no record-based finding that plaintiff was at fault for the falling out between himself and Cockerill," the panel said, seeing no evidence that he dismissed her "in a contrived effort to delay trial for delay’s sake."
Becker also should have "at the very least" permitted Olszewski to beg Cockerill’s return on the second day of trial, instead of simply saying it was too late, the court said.
In addition, conducting the custody trial after the settlement conference is, in itself, grounds for a new trial because Becker already had formed conclusions about Olszewski’s credibility.
The panel ordered that a different judge preside at the new trial.
The court also vacated the expert and attorney fee awards, noting that Becker pointed to Olszewski’s ability to pay — "It’s not like he has an attorney that he’s paying," the judge said — but did not consider he had paid Cockerill $27,575 and still owed her about $9,000.
Kimberly Engan of Pellettieri, Rabstein & Altman in Princeton, Olszewski’s appellate counsel, said "it was the first request for an adjournment, and it was not an unreasonable request."
Angie Gambone of Trace and Jenkins in Woodbury, Christine Olszewski’s counsel, did not return a call. Neither did Cockerill nor Becker. •