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In my opinion, the New York courts in which family law matters are being adjudicated are operating under a number of self-imposed disadvantages that tend to constrain all parties and hamper the effort to obtain the best outcomes for children.

","

I am not alone in this belief. At a 2015 conference jointly sponsored by the Association of Family and Conciliation Courts (AFCC) and the American Academy of Matrimonial Lawyers (AAML), I listened with much interest as attorneys and judges from areas other than New York expressed disbelief, disapproval and dismay regarding New York's extraordinarily atypical positions regarding the copying and electronic transmission of documents, and the limitations on discovery in litigation focused on issues of access to and custody of children.

","

Electronic Record Transmission

","

With distressing frequency, New York judges prohibit the electronic transmission of documents, and require reviewers to affirm that no document sent to them will be copied. The presumed objective of these measures is the protection from disclosure (or misappropriation) of sensitive information concerning the families who have sought the courts' assistance in resolving custody-related disputes. But let's keep this in mind: We are not talking about distribution of sensitive information to the general public, but to professionals whose work requires that they have unrestricted access to the information contained in the files created by evaluators.

","

With specific respect to the provision by attorneys of sensitive information to their retained consultants, the judges of the First and Second Departments have shown very little interest in improvements in encryption technology that have made the electronic transmission of files far less susceptible to loss, destruction or mishandling than transfer by means of the postal service or services such as FedEx and UPS.

","

And this “safeguarding” of records by prohibiting their electronic transmission has side-effects. Working with documents that have been transmitted as searchable pdf files, Optical Character Recognition software enables reviewers to search with remarkable efficiency for words and for numerical data. Rarely is it possible to obtain a superior service at lower cost, but work product reviews performed with searchable scanned documents are likely to be significantly more informative than those performed with paper documents, and the time required of the reviewers is reduced. When reviewers are able to search for specific words and phrases within documents, reviewers can analyze the documents in ways that would not otherwise be possible. (Unfortunately, a discussion of the analyses that can be conducted when documents are searchable is beyond the scope of this article.)

","

Admitedly, there are few, if any, technologies that cannot be used in the service of malicious objectives, but technologies have no mens rea. Judges who prohibit lawyers from scanning documents are depriving attorneys and their consultants of an inestimably valuable tool, and are presumably doing so only because it is possible to misuse scanning technology.

","

Of 32 states in which I have provided forensic psychological consulting services, New York is the only one in which some judges require that reports provided for review to retained consultants be delivered in paper form. No transmission method is infallible; however, with today's technology, transmitting documents electronically is far safer than sending them in paper form.In electronic form, an evaluator's report can be encrypted. And before being transmitted, it can be password protected. After the document has arrived at its intended destination, password protection can continue to be maintained, and the computer on which the document now resides can be password protected.

","

Which Is Worse?

","

It is my hypothesis that New York's judges expend a significant amount of time contemplating the bad things that bad people do and the bad things that good people do (when they are embroiled in litigation). At the same time, I suspect that little time is spent pondering errors often made by good people. In the field of law, as in the field of psychology, we err significantly when we fail to take common human shortcomings into consideration as we develop our professional procedures.

","

Consider the careless leaving of paper documents where they can be seen by individuals who should not see them. I know of no law firm that monitors clients on their way to and from the firm's restrooms. With regularity, litigants walk past file boxes stacked in halls and past conference room tables on which there are assortments of unattended documents. When someone is working with documents that have been spread out on a desk or conference table, gathering them, placing them in a file cabinet and locking the cabinet in order to make a short trip to the break room or restroom seems unduly burdensome. For that reason, it is far more likely than not that the physical file items will be left unattended.

","

On the other hand, documents that reside on computers can be protected from inadvertent exposure in ways that paper documents cannot. Placing a computer in password-protected sleep mode takes no more than a few seconds.

","

Precautions that are easier to take are more likely to be taken. Which is easier to safeguard, then — physical files or electronic ones?

","

Copying Is Not Calamitous

","

Forensic psychological consultants conducting work product reviews are likely to want to make marginal notations and highlight important words and phrases. With this in mind, prudent reviewers who respect transparency of process immediately copy documents that are sent to them because by copying documents, reviewers are able to preserve each document in precisely the condition in which it was received, and use the copies for their notations. In New York, however, the making of copies is not permitted in certain family matters.

","

Directing that copies not be made is shortsighted. Public confidence in all of the system's “working parts” requires transparency. Just as the work of evaluators should be subject to scrutiny, so, too, should the work of reviewers be closely inspected. Preservation by reviewers of the original documents sent to them facilitates an examination by others of reviewers' procedures. Attorneys wishing to cross-examine reviewers should be particularly eager to endorse the system being proposed here. If, when a reviewer receives a report, it already contains a retaining attorney's notations, preservation of the original document (and production of that document) would facilitate exploration of the retaining attorney's perspectives on the reviewer.

","

Discovery Is Illuminating

","

New York's First and Second Department judicial philosophy that is most perplexing is that “concern over the sensitive nature of the issues relevant to custody litigation and the potential for exacerbating the antagonisms incident to such litigation has resulted in the general prohibition of pretrial depositions on the issue of custody.” Ferguson v. Ferguson, 2 Misc. 3d 277 (2003), at 279.

","

A litigant's decision to proceed to trial must be an informed decision. But New York's First and Second Judicial Departments have developed a system in which litigants must first proceed to trial in order to obtain the information that, in other jurisdictions, is used by litigants and their attorneys in deciding whether or not to go to trial.

","

The fact that little has changed since the 2003 Ferguson decision is surprising in light of the fact that, early in 2006, the Matrimonial Commission issued a Report to the Chief Judge of the State of New York (2006), containing recommendations that included the following: “The forensic report should be open to all of the trial procedures which allow a litigant and his or her counsel to test the underlying basis for the report. In that regard, all underlying notes and test data, including raw test material, should be made available in discovery to counsel for the litigants, attorney for the child(ren), or a professional designated by counsel to review the material” (pp. 52-53).

","

The Lukewarm Crucible

","

The late Justice Antonin Scalia, delivering the opinion of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), alluded to the crucible of cross-examination (at 61-62). In New York courtrooms, the temperature in the witness box is often no higher than the temperature in the rest of the room. It is difficult for cross-examining attorneys to generate heat when they must compose their questions without benefit of discovery. Martindale's first principle of jurisprudential thermodynamics is: The heat that brings perspiration to the brows of evaluators whose work is flawed also creates the light that assists triers of fact.

","

Conclusion

","

There is, I believe, general agreement that there are deleterious effects on families: 1) as evaluators, consultants and others gather information; 2) as attorneys present that information; and 3) as the implications of that information are explored at trial. New York's courts are currently laboring under the illusion that they have identified, and are implementing, pre-trial procedures that diminish these detrimental effects of litigation on families. But the disadvantages of barring or limiting discovery are significant, and there is no basis for believing that the acrimony associated with litigation is lessened by New York's aberrant practices. Neither is there any evidence that expenses are reduced. In their rejection of the discovery procedures employed in our country's 49 other states and the District of Columbia, New York State's First and Second Judicial Departments are displaying institutional arrogance.
Those whose lives will be altered by judges' decisions are entitled to a judicial system that functions effectively and is open to scrutiny.

","

With respect to the issue of inappropriate disclosure of litigation-related documents, the judicial system's goal is clear; so, too, is the path to that goal. Documents intended for review should be accompanied by a court order in which the authorized recipients are identified either by name or by role. The order should state that the documents, and any information extracted from them, shall be used only for the identified case, and not for any other purpose, without the express written permission of the court. The order should also state that neither the documents, nor information contained in them, are to be discussed with, or disclosed to, the children.

","

*****
David A. Martindale, a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology. He offers forensic psychological consulting services to psychologists, attorneys and licensing boards. Website: www.damartindale.com.

","

Electronic Record Transmission

","

Which Is Worse?

","

Precautions that are easier to take are more likely to be taken. Which is easier to safeguard, then — physical files or electronic ones?

","

Copying Is Not Calamitous

","

Discovery Is Illuminating

","

New York's First and Second Department judicial philosophy that is most perplexing is that “concern over the sensitive nature of the issues relevant to custody litigation and the potential for exacerbating the antagonisms incident to such litigation has resulted in the general prohibition of pretrial depositions on the issue of custody.” Ferguson v. Ferguson , 2 Misc. 3d 277 (2003), at 279.

","

The Lukewarm Crucible

","

The late Justice Antonin Scalia, delivering the opinion of the United States Supreme Court in Crawford v. Washington , 541 U.S. 36 (2004), alluded to the crucible of cross-examination (at 61-62). In New York courtrooms, the temperature in the witness box is often no higher than the temperature in the rest of the room. It is difficult for cross-examining attorneys to generate heat when they must compose their questions without benefit of discovery. Martindale's first principle of jurisprudential thermodynamics is: The heat that brings perspiration to the brows of evaluators whose work is flawed also creates the light that assists triers of fact.

","

Conclusion

","

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