Editor’s note: On Sept. 19, the Texas Lawyer editorial department hosted a roundtable discussion in Collin County, “Domestic Relations: How to Make Your Case in Family Court.” Panelists included 296th District Judge John Roach Jr., 219th District Judge Scott Becker, 366th District Judge Ray Wheless and 397th District Judge Brian Gary. This is the second part of their discussion. The judges’ discussion covered property division pleadings, time limits on temporary order hearings, attorney fees and unrepresented litigants. It has been edited for length and style.
John Council, senior reporter, Texas Lawyer, Dallas: Judge Gary … what do you want to see in property division pleadings so everybody gets what they want?
397th District Judge Brian Gary, Sherman: … Some of you come up to Grayson County, just a few of you. I haven’t seen a whole lot of you in Grayson County though. … I’ll just throw a bone out for Carol. Carol comes as prepared as any lawyer that ever practices in front of me on a family law case—sometimes maybe a little too prepared. But what I know when Carol walks in and I’m having a property dispute is: She comes in with all of the stuff that she wants, all of the stuff that she is going to ask me to give her, and it’s all in the list that she has … as to what’s in the dispute. You know, I prefer that. I am the only courtroom—well, you know, if you want to show a DVD or something in some of the other courtrooms, you can roll in a cart you know, and play a DVD on the TVs, but I’ve got it hooked up in my courtroom where we’ve got—unfortunately our courtrooms are like the old Collin County courtrooms, you know, somebody thought a circle was a good idea. And so—because you can’t get one screen where everybody that needs to see it can see it, I’ve got three of them in there. I’ve got a drop-down screen and two flat panels on the walls. We’ve got the ELMO. There are plenty of tools that would allow a lawyer that’s prepared to, you know, to write it out, hand me a list, put a list up on the TV, do whatever you need to do. ‘What’s an issue and what relief you’re going to ask me?’ I mean, because—well, I hope these guys are going to echo what I’m going to say. It is difficult for me—I can listen and write notes at the same time. But a lot of time when you’re going over this property and that property. … ‘Here, I want this … This is why I want it,’ and I’m hearing all of this stuff and I’m trying to take notes and you haven’t come in with an inventory, or you haven’t come in with a list of the things in dispute. I’m busy writing notes, and I’m down to it. I’ve got trouble dividing that up. Now, I’ve got some procedures in my court before you have a final hearing … you’re supposed to have a property inventory on file so I can see it. The first thing that I ask anybody before I have a final hearing when I’m going to have to be dividing up property is: ‘Is there anything that’s not on this list?’ And, you know, they might add one or two things. … My rule is: If you don’t have the property on that list and not that inventory, I’m not going to divide it up later. I’ve had about four or five cases that I’ve had in the past two years, I divided up everything that everybody told me about. The party that proceeded that they lost, you know, all of a sudden that lawyer is writing me a letter because their client is mad. All of a sudden there’s an extra $20 or $30,000 worth of property that not a word was said about during the hearing. … So, my rule of thumb on that is: If you’re coming in for a final hearing, if it isn’t on the property inventory list that both sides have agreed is complete, don’t come back to me. So, I expect for that to be there, and I’m just giving you some advice on a temporary orders hearing, and [if] you want me to do stuff, you know, come in with a list, or come in with some of that stuff, so it’s easier. It’s not that I’m not paying attention, and it’s not that I’m trying to do it, but I mean, I promise you I will miss something. So, if you don’t come in with that ahead of time, you know, don’t be surprised if I miss something.
Council: Judge Wheless, what do you see lawyers do that makes property division a mess, and how can we avoid that?
366th District Judge Ray Wheless, McKinney: Go to mediation and resolve all of the issues in there. (Audience laughing.)
Council: That’ll do it.
Wheless: And then come in here and expect me to clean it up because I’ve seen that all the time … people go to mediation and they get the settlement and they—then they come to me and they say, ‘Well, we didn’t consider this.’ Well, then you don’t really have a settlement if you didn’t consider that. So, I send them back to mediation. … Resolve what you didn’t get cleared up, and then come back if you need me to.
Council: Judge Becker, are there language issues? I mean, spelling things out, exactly what is it that you want? Is that a problem in some of these pleadings?
219th District Judge Scott J. Becker, McKinney: … I like when both sides will do some sort of Excel spreadsheet or something along those lines, where you allocated, you know, what is the community estate, what [are] the various items that comprise that and then if you know, you allocated property: ‘A through M [is] spouse No. 1, and N through Z is spouse No. 2.’ What would that distribution look like, and what would be the evaluation? That’s helpful. And then as the judge I can take that to the back, and, if it’s in Excel, I can shift things back and forth. But it makes it difficult to shift things back and forth when … both sides are talking about the same thing, but they’re calling it something else, so it looks like there’s multiple pieces of property. … The other one calls it an IRA and puts an account number. I think that might be the same thing. I’m not sure, but—so those things—if there is a lack of specificity or specificity but in a different manner. One person calls it a portrait; the other one calls it a painting. You know, I don’t know how you can get together on these things and kind of use the same nomenclature, but that would be really helpful. Then I may still get your division wrong, but at least I’ll get it wrong one time so. …
Council: Judge Roach, what makes your life easier when you’re looking at a property division pleading?
296th District Judge John Roach Jr., McKinney: Well, what I clearly like is when the attorneys come together and make one Excel spreadsheet. So, they list the property in one column and list [the] husband’s evaluation in the other column and then the wife’s evaluation in the other column, the court’s evaluation in a blank column and then that’s it. And then send me the Excel spreadsheet and then I can just move the cells over and then figure [it] out. …
Becker: I like that way now. (Audience laughing.)
Roach: Let me tell you something, that’s the way to go. That’s what I require before a property [division] of a settlement is to have that spreadsheet done by both counsel, and there’s some disagreements about a couple of things, and that’s fine, but what you can easily disagree with is the evaluation. So, just put what they are, and then I’ll put the court’s evaluation in there. And then you can program the spreadsheet to have the percentages on the bottom. That helps me a lot, so I can see where I’m headed with it. That means all the difference in the world. That makes it very easy. If you will put arbitration clauses in your mediation agreements where the arbitrator resolves any remaining disputes and language in a divorce decree, it helps a lot because … we’re not allowed to change the contents of a mediated settlement agreement which we’re not at all [versed] on it because that’s the agreement. Second of all, we don’t understand what happened in mediation. We don’t know what they gave up and why. We weren’t there for the whole flow of things, and mediations are really fluid processes. …
Becker: And one of the ways that you get us this material, Judge Roach did a good job of getting all—I think we each have our own. Each judge has their own email address, obviously, but Judge Roach has procured for us a court email. So, some of you have been in front of us now where we’ve said, ‘Why don’t you email that to us, put the style and cause number in the subject line, copy your opposing counsel and you can email that to firstname.lastname@example.org blah, blah, blah or 296 or 366.’ And those email addresses should be accessible by the judge of that court as well as the rest of the court’s staff if the judge said, ‘Yeah, I want my coordinator to be able to see that.’ So, you can email us at the close of the case … get together, send us that Excel spreadsheet or something as an attachment.…
Gary: Yeah, I like the spreadsheet idea. I would say I do something similar to that. A spreadsheet would be a great idea if I could get everybody to do it. But you are required in my court, when I’m talking about that property of inventory, it’s supposed to be a joint one. Petitioner is supposed to send theirs to the respondent. Respondent is supposed to look at it. And then if they’re supposed to submit me a joint—I mean, they can … disagree, obviously, but they’re supposed to submit that to me before a final hearing. And so you need to do that. And, generally speaking, if you show up for a final hearing in my court on that and you have not done that, I will reset you … unless I think that somebody is just messing with the other side because … one side really wants to get it done, but it’s the same concept that Judge Roach is using. That’s a great idea on the spreadsheet. I probably ought to do it that way, but at least for the time being if you come up to—in my court in Grayson County, you can look on the website. They have a website dedicated to my court. There’s copies of, you know, the forms and documents of what I would expect you to file.
Council: OK. Judge Roach, I think maybe the biggest trap for an inexperienced family lawyer in Collin County might be a local rule of any temporary hearings to 20 minutes.
Roach: What’s a trap? I don’t get it. (Audience laughing.)
Council: Assuming this is not a trap, what’s the best way to use that time effectively, for example, if a hearing is going to involve any multiple witnesses or documents?
Roach: Well, a couple of things. One is the 20-minute rule is the only way we can do it. We’re just overwhelmed. We just don’t have time to do any more. And most of the time … and by most, I mean 98 percent of the time, that’s all I need is a 20-minute Band-Aid between now and until the time that we have a final hearing. And so the best use of your time is to do an opening statement. So, we know what to look for, because a lot of times they’ll say, ‘Judge, to save time I’ll waive opening.’ Well, I’m just sitting here: ‘Why?’ I don’t know what the issues are. I don’t know what your argument is. I don’t know what you want me to do at the end of the day. So, at least get something—some quick statement to do that. Give us your requested ruling in paper, which I think mostly everybody is doing these days. So we know what you’re asking for and then hit the highlights. It’s not a time to try the final case or the issues in a final case. It’s not a time to depose the other side or other witnesses. Get in, make the points that you want to make, and get out. But I will tell you that, if you’re not familiar with the Collin County local county rules, yeah, I’ve seen it. Some of these Dallas lawyers come up, and they get all day in temporary orders hearings in Dallas….You’ve got a distinct advantage when you’re ready for your 20 minute hearing, and they thought they were going to have eight hours, and we usually know it when they’ve got 10 witnesses to put their hand up and swear them in, and we’re like, ‘OK, they’re missing something here.’ (Audience laughing.) So it’s a big advantage to know the rules, but if you just get in and get out—we’re not cookie cutter. We don’t want to consider a case, ‘Oh, I’ve heard this before.’ That’s not true. That’s not fair to the litigants before you, because their case is special to them, and they need to know that, but we do beat a dead horse a lot.
Council: Judge Becker, what if I’ve got a somewhat complicated issue I want to deal with in a temporary hearing? How do I get my point across to you in the best and distinct manner possible?
Becker: Well, I’m probably not famous for going beyond the 20 minutes. In fact, I have the big timer on the screen. You can see where—I think somebody said they feel like their life force is being sucked out of them. (Audience laughing.) But the other side appreciates that because they know that they—if your opponent comes in and says, ‘I need to talk about these six things,’ and they’re on thing two, and you see that they have two minutes left, you’re feeling pretty good about your situation. (Audience laughing.) Now, [if] you know ahead of time that you’re going to have a few unique issues that might merit going beyond the 20 minutes, you can ask and … most of the time what I’ve done is I’ve said, ‘I’m probably going to hold you to 20 minutes, but if I get a sense that we need more time during these 20 minutes … we’ll figure out how much more time you need, but don’t plan on it.’ Don’t … sit there going, ‘Oh, he’s thinking about it … I know I can persuade him to give me an extra 20 or 40 minutes more.’ Usually, if we’re going to give you more time it’s been like five or 10 minutes more. It’s not been precisely because I know there’s some really unique issues about each person’s case, but those are … not able to be addressed at a temporary order’s phase. … It’s a Band-Aid hearing designed to get just the minimum stuff ruled on so that the people that know what’s going on in that case, the lawyers and the parties can then figure out how to make a final decision in that. And that matter might take several weeks or months to get to the place where everybody feels comfortable to finally resolving it. I don’t think you can resolve an alcohol substance-abuse issue with a special-needs child and an abusive spouse in a 20-minute hearing. Nor can you do it in a one-hour hearing. You need more time than that, and that’s what the final hearing is for. But you can’t come into court 12 days into the matter and do a final hearing. So, we’re going to give you the bare minimum, and if you need a little more time, maybe we’ll give it to you. But you’ll know exactly how much you’ve got, because it will be on the screen, looking down, slowly sucking the life force out of you. (Audience laughing.)
Roach: I mean, if you’re making progress and you’re prepared and you’re ready to go, I’m much more likely to give you more time—much more likely. If you’re coming to do that, and you’re prepared, and you’ve got everything ready, and you’re doing the documents, and y’all have worked together to agree [to] the admissibility of certain documents. It drives me crazy when someone objects to a document and they’re right, and then I sustain the objection, and the other side introduces the very same document. I mean, ‘What [did] we do that for?’ I mean, … they didn’t want it a second [ago] and then you want the same document in, it’s just kind of odd. But if you’re prepared, I’m much more likely to hear if you are covering good ground. What it prevents, the 20-minute rule prevents you from beating a dead horse.
Becker: I find, historically, when I have given more time, all it does is allow one spouse more time to feel out the other spouse. I kind of understand they’re emotional. They hate the other person that they used to love and made human life with multiple times. They now think they’re the worst example of a human being. (Audience laughing.) … If I give five more minutes … all they do is just say more mean things. I get it. In 30 seconds, I get you hate them. There’s not much more that they need to say about that.
Council: Judge Wheless, if I come to you and I really need more than 20 minutes and it’s complicated are you going to … give me another five? What do I need to do?
Wheless: Well, I think one of the things is that all of the judges are different. I’ve never really imposed time limits at all as a judge, whether it’s jury selection, opening statements or closing statements. When I was a county court-at-law judge I thought it was ridiculous to have a 30-minute time limit on picking the jury. There’s no time limit on the policemen investigating the case. There’s no time limit on the D.A. on how long they take to review the case. And then all of a sudden it gets to court on the business day, the most important day of someone’s life, we tell them that they’ve got the 30 minutes. … And so I never had time limits. And so, of the 20-minute rule, I know there’s some lawyers who would like the 20-minute rule imposed because they set their fee. They base their schedule on the 20-minute rule. But it’s wide open for me. If you come in there and say you need more than 20 minutes, then it’s kind of like an ethical consideration to know the difference between the disciplinary rule as opposed to a mandatory and ethical consideration … that’s what we strive for. The same thing. The 20-minute rule is something I think we strive for, but I’m not going to hold your feet to the fire. I allow leading questions to try to get through.
Becker: I do do that. If you object to leading, I overrule it and I allow both sides to lead back and forth, so you can help meet your time constraints.
Wheless: On the other hand, if I’ve heard enough, I’ll just say, ‘OK, I’ve heard enough.’ (Audience laughing.) And I don’t want to hear anything else. So, if you’ve had an hour and I’ve heard everything I needed to hear in an hour, I’ll just kind of cut you off and say, ‘No more.’ I’m done. I’ve made my decision.
Council: Judge Gary, I’m assuming you don’t have these time limits in Grayson County, but do you impose limits when they’re needed in your court?
Gary: OK. Well, I do a little bit of all of that, and the reason is … at one time Grayson County had the standing order that gets entered on every family law case, you know, when they get filed and then a couple of the judges, you know, had some complaints or had some cases where it really did more harm than good, so they quit going to it as a uniform thing. When I came on the bench, I did not have that. The problem I ran into quickly, though, I would try to—I wasn’t running a docket. I was trying to allow everybody, you know, to set it, have a hearing, say, ‘Hey, I need an hour for a temporary orders hearing.’ My court coordinator would try to come accommodate people so that we didn’t have a bunched docket. And what I found was—I did the analysis over about a four-month period. And what I found was that more than 40 percent of the cases that I was giving settings to did not go, either from lack of service, they reached an agreement … Lawyers wouldn’t bother talking to each other until they showed up in my courtroom for the hearing. ‘Judge, can we have five minutes? I think we can work it out.’ Sure, because I always encourage agreements. I think it makes family law matters go better. And, so, what I found was we were wasting 40—more than 40 percent of the court’s time. And I don’t mean personally my time, but we would have things set even if people would reach agreements ahead of time, [but] they wouldn’t even have the courtesy to call in and let us know, which by the way, please do that. If you reach an agreement or you know your hearing is off, the sooner you call and let me know or my court coordinator know, the better. Because what happens more than 50 percent of the time is: I’ve got a 2 p.m. hearing set, somebody’s calling at 9:30 that morning going, ‘Oh, yeah, we don’t need that. Oh, yeah, now it’s going to be a prove-up.’ Well, I mean, now, we’re just sitting around … other people, like some of the rest of you, might could have used that hearing time when you’re calling to get something set. And then you didn’t get it because somebody didn’t let us know. So, ultimately, what I ended up doing to try to address this thing—and y’all need to be aware of it, if you’re going to come up is: If you ask for a TRO in my court that’s not supported by an affidavit, I enter an order, which is much like the Collin County standing order. I’ve added a provision to it that allows, you know, without an affidavit to tell me, otherwise you get visitation under the family code or under any preexisting order that controls your case. I figure, if you’ve got a big enough emergency to alter that stuff, you ought to be able to submit an affidavit so I can look at it. You submit an affidavit, I’ll sign that, and we’ll get you set and get you in early in the TRO hearing. Otherwise, what I do is: I kind of run a docket like you’re talking about, a temporary orders docket. But what I do is … I’ll set seven to ten cases on that docket. And the first thing I do is—because most of the time, at least in Grayson County, it seems like a lot of lawyers who either haven’t been paid before they get there or the lawyers just don’t like talking about the case until they get there. I don’t even take a case until probably 20 or 30 minutes has passed and everybody has had a chance to talk. What I’ve found is that 50 percent of them will reach an agreement, and so I get rid of 50 percent. I take prove-ups first, and then I start going out there and call the document, and that’s your opportunity to tell me how much time you need. And then I listen to kind of what they’re saying. If you’re just telling me it’s—you know, if it’s something that I know, you know, that ‘I hate them, I hate them,’ but it’s a simple issue that I can do in 40 minutes, that’s what you get, and I keep a timer. But if you tell me that you’ve got an issue that involves alcohol abuse, drug abuse, physical—you know, I mean, there’s something once I hear from both sides and what it takes, I’ll give you more time. I’ll usually give you a time limit, but based on what you tell me and what I see about the case, I mean, I’ll give you more time. But I order the cases based on the timing, the lawyers’ schedules. You might have to come back in the afternoon or once I hear how much time you’ve got, I may set you to a different day. If you come in, depending on what the issues are, I’ll give you more than 20 minutes a side. But before I started doing it this way, I mean, 20 minutes a side is pretty much what you got, because that’s all I had time for. So it’s a moving target but. …
Council: Judge Gary, speaking of getting paid, what do you expect family lawyers to show you when they’re proving up their attorney fees?
Gary: It depends. The usual answer. Depends on how much you’re asking me for. Depends on how complicated the case had been and what you’ve been through. You know, if you’re going to ask me for a whole lot of money, especially on what seems like a relatively simple case, you better be prepared to talk about your billing. I’m not necessarily going to make you show me something that might be, you know, privileged documents. But you better be ready to talk about it in some detail. I mean, it’s just a—I hate to use the word ‘average run-of-the-mill case,’ because I’m sure the litigants never view it that way. But, you know, if it’s a pretty standard case, something that we see all the time I—you know, what you have to show me is going to depend on what the other side is griping about.
Council: Judge Wheless, how much detail do you want to see in a pleading like that?
Wheless: Can I go back to the temporary orders issue?
Wheless: … Temporary orders is the second bite of the apple. After you’ve had one, two, three orders hearings, you better have a good reason if you come back on a separate motion for additional temporary orders, because almost all of us are not going to hear it, and it’s got to be something really serious and something really important. And usually I’m going to ask you, ‘Why don’t we just have the final hearing and just get this over with?’ I think what you need is a divorce and not temporary orders again. So just keep that in mind.
Roach: Can I add to that?
Roach: I’m kind of king of statuses, because I think things are involved—especially when you have an alcohol problem or a drug problem and stuff, and a final hearing doesn’t really get you what you need. Because, once you have set that final hearing, wherever that parent is at that period of time at the final hearing is what they’re stuck with. They still have an addict—addiction problem. Then, the final hearing is going to be bound to them for three years unless a substantial change in circumstance and stuff. And so I just ask, ‘How is the visitation going? … How is the drug test coming? … How is this coming? How is the alcohol going?’. … Or someone trying to work their way back in their kid’s life, and they’ve been gone for a period of time. I kind of do statuses like that. But that’s my decision to do those to make sure things are coming along rather than doing additional temporary orders. But I agree with you, we do not set those without reviewing them first.
Wheless: And even on a motion to modify, like I know you give temporary orders on a motion to modify, we all know that. But if it’s that’s serious, normally you’re 45 days and you’re in trial. Going back to the attorney’s fees question, I like to equalize the attorney’s fees. And if I see that one party has already been paid a lot of money, the lawyer has been paid a lot of money and there’s resources there to take care of it, I like to equalize the attorney’s fees. So, that’s one thing that I really believe in.
Council: Judge Becker, what do you want to see?
Becker: I’ll second what the rest of the gentlemen have said. I’ll also say what I find hard to do. And the trouble is: I don’t think the lawyer should be working for free. I think they should get paid, but when I look at a case and neither side has two pennies to rub together, but both of them wants the other side to pay their fees, there’s just nothing that you can do about that so—and even to some degree, I mean, maybe once in a while you have a more financially stable spouse and one that is certainly financially disadvantaged. And perhaps the financially poorer spouse is the one who’s engaging in all the egregious behavior that racks up the cost. That can happen. It’s not a license to, you know, make things more expensive because you’re sort of judging through [the] attorney’s fee. I don’t think that’s a, you know, a free pass there. But it’s a discounted pass a little bit. I mean … there’s a certain point where they just can’t pay it. So, we are not going to order: ‘You have a piece of paper, and you can get in line with the rest of the people to collect it, or you can just kind of eat it and move on. I don’t know, and it’s easy for me to say because I’m not the one eating the bill. I get that. But it’s hard for me to order people to pay fees that I know they’re never going to be able to pay. And, so, just take heart in the fact that the one day you’re eating it you’ll be representing the poorer spouse in the future. … You’re going to be on both sides of that over the history of the court. It’s just hard to do anything about that. There’s no magic power that they taught me about in judge school to deal with that to make them pay your fees when nobody has any money.
Council: Judge Roach, how do you deal with that disparity when one side has a lot of money and the other doesn’t and one side is running up the bill?
Roach: Well, in a divorce case we use the community saving—
Roach: —and use certain assets. In a modification case, you really can’t. There’s really no reason why you can’t do that except for ordering attorney’s fees on motions that they have to keep bringing … But other than genuine pro bono cases, you’re doing yourself and your family and your clients a disservice for working for free. Because if there is no risk to go into trial, if the lawyer just keeps on fighting the fight, keeps on fighting the fight, but no downside to the client to do it and the mediations—when I was mediating cases or in court and that’s what I use a lot of. And I do that in court now, you know, I look at somebody and say, ‘Hey, how much is it going to cost to go forward, $10,000? How is it going to cost the other side $10,000? Y’all got 20 grand to fight about this?’ ‘Well, no, I don’t have $20,000.’ Well, then let’s stop the nonsense, and let’s get moving and get this case settled. Don’t work for free. Again, I know it’s inappropriate, we’ve got the legal services up here. (Audience laughing.). … What happens is you come into court, and you spend all of the resources of the case in the community estate or whatever. And then they’re pro se going forth and you haven’t helped me out at all in that situation, right. You haven’t helped the judges out if we’re stuck with two pro se people. But I’m a big fan of equaling out attorney’s fees. …
Council: OK. You just opened up the door of this giant can of worms. How do you deal with a situation where you’ve got a pro se on one side and they’re obviously running up the other side’s bill? What do you do? Can you limit that?
Roach: Well, like I said, in a divorce case you can because you have a community estate. In a modification you really can’t equal out the attorney’s fees and stuff, but you can award fees for the frivolous filings or the contentious deal if you need to do that. One bit of advice I’d give you is: Don’t ask for sanctions right off the bat. Ask for attorney’s fees, OK. Don’t call attorney’s fees saying—because sanctioning a lawyer has a lot of implications to it. If you’re board certified, that’s a problem. Or malpractice insurance, that’s a problem. It’s a big deal to sanction a lawyer for their conduct or a party. So ask for attorney’s fees first. Be sure you document the communications you had with the attorneys and no response and things like that. And then ask for your fees because that’s the only way we can do it is if you can prove up attorney’s fees and what they’re filing is frivolous.
Council: Judge Becker, how do you deal with this?
Becker: Well, I want to address sort of a brain issue of this.
Becker: And we have pro ses on one side and represented parties on the other. And there’s obviously a huge movement from the top panel to increase access to our portals to unrepresented parties. We refer to them as pro se litigants. Apparently, according to the most recent new Judge’s College, even the use of that term is, like, pejorative. They should be called unrepresented individuals because they don’t understand what it means to be pro se. So, there’s a huge move to increase access to the courts to people who can’t afford legal counsel. And, in theory, I think everybody sitting here is probably going to go, ‘Yeah, we shouldn’t be deprived of our justice system because we’re too poor to be a part of it.’ That’s not what America is about. Everybody is like, ‘Yes, more access.’ And then, when you think about that, everybody should have good quality medical care too, but we don’t give them a scalpel. We don’t give them the ability to operate on themselves or prescribe themselves medicine. We have clinics where people who are licensed physicians who make a nice living doing that donate some of their time and handle a few cases here and there. And, if they feel a calling, they end up going and doing that. I’m not here to tell anybody to stop practicing law for a lot of money. And I’m not here to tell you, you know, do it all for free all the time. But you have all encountered the pro se litigant on the other side. And how easier would your life be if they had a lawyer even just for a little bit. So, make that happen. We should be increasing access to legal representation, not increasing access to the courts directly. And I think that would solve a lot of the problems, because then that unrepresented litigant wouldn’t have the capacity to ratchet up the cost of litigation, because they’ve got a lawyer telling them: ‘You can’t do that. I’m your lawyer, and you can’t do that.’ … I think [that] would be a little bit smoother overall. … I’m preaching on the podium. That’s my preaching for this morning.
Council: Judge Wheless, how do you deal with runaway pro se or, what is it? Unrepresented litigants, is that what it is? How do you deal with that?
Wheless: I don’t know about runaway pro se. But whenever people come into the courtroom, I like for them to have a lawyer. And so if they don’t have a lawyer, I encourage them to go hire a lawyer if they can afford one. Find some community asset that they can all agree that can be sold so everybody can have a lawyer. If there’s no assets and they can’t hire a lawyer, then I send them over to Jack or Shelly. And, then, if there is some way to take some possession of some property to be sold, then I like to do that. But I’m not going to tell someone that they can’t have a lawyer. For example, someone borrows money from a family and they’ve got a lawyer, and the other person doesn’t have that resource on their side of the table. I mean, they don’t have a family member they can get money from. That person that has a lawyer is just luckier. They’ve got resources or family support that the other side doesn’t have. And, so, it’s unfair, I guess, to some, but that’s the way our system works.
Roach: Real quick, just because somebody’s pro se doesn’t mean they’re poor, either. We had a presentation at the district clerk’s office, and they did a very small study. But 90 percent of people who filed an affidavit … to get out of filing fees, 90 percent were not indigent. They make $38,000 or $45,000. It’s just priorities. And, so, don’t think that just because they’re pro se—and possibly they are—but just because they’re pro se doesn’t mean they’re poor and don’t have access to it. They just have their priorities screwed up.
Council: Judge Gary, I’m sure you’ve seen them from time to time. Do you give them any leeway when you see a pro se come into your courtroom?
Gary: Yes and no. You know, I’m not going to hammer a pro se. I mean, if you show up and ready to go and this pro se—I mean, unless they’ve done something outrageous or engaged in egregious behavior that I need to try to deal with immediately, I’m not just going to take a hammer to them. Usually, if they ask, I will strongly advise them to try to get an attorney. And I will reset a hearing to try to give them a chance with the strong admonition that, you know, if they don’t bother going to get one, I’m going to have a hearing the next time, and they’re going to have to represent themselves, and I’m going to require them to follow the rules. You know, if I need to allow, you know, money for them to get an attorney or you know, make some adjustment to the estate to do so, I will, depending on the circumstances, because like Judge Roach said, some of these people are just coming in just because they don’t like lawyers or they don’t want to spend their money on them or they think they’re going to get hosed anyway and so they just—
Becker: Is that a legal term?
Gary: It is now, in Grayson County. (Audience laughing.) But … it’s a fine line because there is a movement from the top down to try to give unrepresented people more access to the courts. But on the flip side I constantly struggle, and I mean, I’m sure that some of you have been frustrated by it. You go in the courtroom, and the other side is pro se, and you feel like the judge—by helping the pro se, it’s almost like the judge is giving them legal advice or taking actions that benefit them even though you’re representing the other party, and I worked very hard not to do that. You know I might not let you get to do some things you want to do because they’re unrepresented. But I try not to help that person to the point that I’m giving them legal advice or taking things that actually benefit them legally. Especially if I’m suspect as to, you know, why they really don’t have an attorney. But this is a problem, and it’s just getting bigger because people are coming in without attorneys. I guess they’d rather spend their money elsewhere, and they’ve watched ‘Judge Judy’ too many times. And that’s what I get all the time. And I tell them—a lot of times I will shut them down or I will stop them in the middle of something and say, ‘You know, this is not Judge Judy. This is not The People’s Court. That’s not the way we do things.’ But I think there’s an overall perception with some of these TV shows that they ought to be able to come in and just argue a case like that and that’s the way we do things. So, I put a stop to that as quickly as I can, but I try to give them their day in court, you know, but it’s a very difficult issue because, you know, if we’re not careful, we can find ourselves actually assisting somebody. Us being, you know, the umpire, you know, we actually, you know, it’s like we’re soft—it’s like hit, pitch, you know, maybe that’s the analogy. You know, just instead of becoming the umpire out there, we have to go out there and throw a few pitches for them to try to hit because they don’t know how to bring in documents, they don’t know how to give testimony and a lot of times there are things that we need to be hearing. So, it’s a real slippery slope that I don’t really know what the answers are.
Audience member: I really appreciate the tip on the inventory appraisal for the division of property. I’m so used to doing our own inventory and then having the opposing party present their inventory, but I want to protect my clients and their assets. I know in Dallas if we give something to the court because we’ve gone paperless, it now is filed and it’s online and anyone can now look that information up. … I also hear that you want to have specifics to make sure that you are dividing the same property. How can we give you this information in the age that we are now [in] … that it will go online and everybody can see it without having to ask to seal every case?
Council: That’s a great question.
Becker: … In Collin County we do have a blanket sealing order for a variety of different issues like juvenile cases, and certain matters are kept offline like Social Security numbers and things of that nature. Covering the privacy of different assets, I guess, is the concern you’re expressing here. We have—first of all, it’s my understanding of what we see on Odyssey, we can see the images of the documents coming up. What is viewable to y’all online is docket entry. And if you paid for access to the clerk you can also see the image. But random citizens don’t have access to the lawyer portal to see the attached documents. They just have access to the docket entry, so they’ll see inventory and appraisal or agreed inventory appraisal. They’ll see that that was entered. They won’t be able to see the substance of that. So, that should be not viewable to just random people or competitors if we’re talking about business inventories. So, I think that it’s already sealed, but maybe we need to look further at it.
Roach: In Dallas do they—when you admit an exhibit into evidence is that also scanned and made part of the court’s record?
Audience member: No.
Roach: OK. That’s what we do—or that’s what I do anyway. There are exhibits in court. They’re not filed with the court, because there’s a court’s record and a reporter’s record, and the reporter’s record is maintained by the court reporter, meaning the transcript and the exhibits that are attached, and we keep those things separate.
Audience member: So when we sent that to you, we need to make sure that we identify it as an exhibit?
Roach: As an agreed exhibit and have it admitted into evidence and not made part of the record. But confirm with the courts to make sure they’re doing it that way, but that’s the distinction that we made is an exhibit.