Informal Family Law Trials – What Are They?
For the past couple of years, both King County [LFLR 23] and Thurston County [LSPR 94.03F] have had some form of IFLTs, or Informal Family Law Trials. Washington State is currently deciding whether to follow suit via Proposed GR 40, which is currently open for comment. Below is a summary of the proposed rule, and my recent personal experience in an IFLT in King County.
What is an IFLT?
An IFLT is about what you would think: it is a less formal way of conducting a family law trial, designed to be easier for people who represent themselves pro se or who believe it a better option while represented by counsel. Upon consent of both parties, and with approval of the court, an IFLT may be held to resolve any or all issues in family law matters to be established by statute including, inter alia: dissolutions of marriage, separate maintenance, invalidity, child support, parenting plans, and residential schedules.
What is the Procedure of an IFLT?
The parties may select the IFLT route within 30 days before trial. Both parties must affirm that they waive the right to appeal the court’s use of the IFLT process and the court’s admission of evidence pursuant to the IFLT process that is not consistent with the traditional court process, court rules, and Rules of Evidence. However, nothing in the rule prevents a party from filing a direct appeal of any final judgment or order at the conclusion of the IFLT. The court may refuse to allow the parties to utilize the IFLT, or a party who has previously agreed to proceed with an IFLT may file a motion to opt out of the IFLT at any time. If the parties request an IFLT after a traditional trial has started, the court will consider whether enforcement of traditional trial rules after the IFLT has started will prejudice either party or the best interests of any child. The decision to continue with a traditional trial shall be left to the discretion of the judge hearing the matter. A change in the type of trial to be held may result in a change of the trial date.
At an IFLT, the court asks the parties for a brief summary of the issues to be decided. The moving party will be allowed to address the court under oath concerning all issues in dispute. A represented party is not questioned by counsel but may be questioned by the court to develop evidence required by any statute or rule. However, the Court will ask the party or their counsel whether there are other areas the party/attorney wishes the Court to inquire about. The Court will then inquire into these areas if requested and if relevant to an area to be decided by the Court.
The judge will review everything the parties provide and will decide what information is important to consider. Parties can ask the judge to review any type of document including sworn statements from others. Importantly, only the judge asks the parties questions. However, if an expert witness testifies, parties may be allowed to ask the expert witness questions. The parties will not be subject to cross examination unless permitted by the court.
Significantly, the Rules of Evidence do not apply to IFLTs. The court shall receive and admit exhibits offered by the parties. The judge hearing the matter determines the credibility and weight of the evidence that is offered. The parties or their counsel will be offered the opportunity to respond briefly to the statements of the other party, and will be offered the opportunity to make a brief legal argument. At the conclusion of the case, the court shall make its ruling or may take the matter under advisement and make every effort to issue prompt rulings no later than the 90-day statutory requirement. Findings will be made, and orders entered consistent with statutes and case law. The court may modify these trial procedures as justice and fundamental fairness requires.
Why Opt for the IFLT Route?
First, an IFLT is more flexible. IFLTs may be easier for people who are representing themselves. The judge is more involved in asking questions, guiding the process, and helping the parties to focus on the specific issues that the judge needs to decide at trial. Second, parties can speak directly to the judge about their situation without interruption or objections for the other party or the other party’s lawyer. Third, the other party or the other party’s lawyer may be limited in asking questions, depending on the court’s rulings. Fourth, parties do not have to worry about formal rules such as the Rules of Evidence that limit what you can say in court. Parties can: speak freely about conversation, talk to the judge about what their children have said about custody and parenting time, and tell the judge whatever they think is important before the judge decides the case. Lastly, IFLTs may be shorter. Parties may have to take less time off from work. If a party has a lawyer, they may be able to prepare in a shorter amount of time. Therefore, the cost to have a lawyer may be less.
My Personal Experience with IFLT’s
I participated in an IFLT in King County recently, and it was basically a good experience with several caveats. First, because both sides were represented by attorneys, the Court had the attorneys question their clients and then allowed opposing counsel to ask questions, instead of just having the parties do the talking. Not traditional cross-examination, but definitely more aggressive than the IFLT guidelines suggest. It surprised me because that is not how IFLTs are described, but the Judge said he wanted to take advantage of the attorneys’ expertise. So if the parties do have attorneys, be prepared if your judge wants the attorneys to participate more than the IFLT guidelines state.
Second, I questioned whether the judge gave our experts the same level of consideration as in a regular trial. We had a tracing expert, and in the end the judge did not find the tracing evidence persuasive. I felt that perhaps because our expert did not testify, but instead simply submitted a report on the tracing, the Court did not hear via direct examination both the expert’s credentials and opinion in a way that was convincing. Most attorneys have experience with judges finding expert testimony very believable in a traditional trial setting, but it seemed less so when the expert did not testify in person. Attorneys and clients need to carefully consider how important their experts are to their cases, and how important it is to have their experts testify in person so their evidence and credibility is clear and persuasive to the Court. If necessary, the attorney or client should make a formal request under IFLT rules for their expert to testify in person. Further, given that expert testimony is so expensive, the expense needs to be weighed against how important the client and attorney think the expert testifying in person is to the case.
Finally, IFLTs are definitely less expensive and less time consuming. The total expense for the IFLT was probably at least half as expensive as a regular trial which can cost upwards of $30,000 to $100,000, and it only took one day
All these things need to be given careful consideration when making a recommendation to a client as to whether to choose an IFLT in King County, and if GR 40 is adopted. It may be worthwhile to ask questions of the assigned judge on any concerns before you and your client make the decision on whether to choose a traditional trial or an IFLT.
For more information about IFLT’s or other family law matters, visit our Family Law blog Wednesdays weekly at 12pm. For any questions you may have, email Beresford Booth at info@beresfordlaw.com, or give us a call at (425) 776-4100.