Fiscal Responsibility Of Litigants: An Effective Tool Under Utilized

BY

Charles F. Vuotto, Jr.
Editor-in-Chief

            As is evident from the other columns and articles contained within this issue, the family part in virtually every vicinage in the State is approaching a crisis situation with regard to a burgeoning docket in the face of declining judicial resources.  There is, however, an effective tool, which is under utilized by many judges sitting in the Family Part.  That tool relates to fiscal responsibility on the part of litigants for the decisions that they make in their cases.  In other words, if litigants were consistently required to pay the reasonable fees of their professionals as the case proceeds, most would temper the decisions that cause their case to become protracted and often spiral out of control.

            The issue of counsel fees was addressed in the Final Report issued by the Supreme Court of New Jersey, Special Committee on Matrimonial Litigation on February 4, 1998.[i]  The Final Report contained recommendation #3, which proposed a Rule Amendment to authorize the Family Part to direct the liquidation, encumbrance or hypothecation of assets so as to provide the litigants, where equities warrant, a source of resources to fund the litigation.[ii]  Recommendation #5 proposed a Rule Amendment to specifically authorize the Family Part to permit counsel to withdraw from representation in the event that a client fails to abide by the terms of the retainer agreement.  The latter recommendation specifically noted that the holding in Kriegsman v. Kriegsman should be relaxed.[iii]  The aforementioned recommendation #3 was essentially adopted by the revisions to Rule 4:42-9(a)(1).  Recommendation #5 was not adopted by rule amendment or changes in decisional law.  More importantly, the implementation of recommendation #3 in conjunction with no adoption of recommendation #5 has had a material impact on judicial backlog. 

            The concept is very simple.  When a litigant sees his or her income and/or assets being depleted to fuel irrational or unsupported positions, vendettas, emotional tirades or other bad faith litigation practices, he or she (in most cases) will likely make better choices.  Those better choices will reduce the number of pendente lite motions and trials, which will in turn lessen the burden upon our courts.  Further, when a payor spouse fails to meet his or her court ordered obligations, he or she should be assessed with fees on a consistent basis.  When a party engages in obstructionist discovery tactics, that party should be required to reimburse the other party for all fees associated with enforcement motions and the additional time spent by the non-offending parties’ efforts in obtaining the discovery from other sources that could have easily been provided by the obstructing party.

            Therefore, there are two essential ways in which our Family Part judges can directly impact the burden upon the courts: (1) make litigants responsible for their reasonable professional fees and (2) consistently shift the fees to offending litigants.  Although the committee’s recommendations and the clear intent of the amendments to Rule 5:3-5 were intended to give the Family Part judges sufficient authority to accomplish these goals, their actual implementation has been underwhelming.  The lack of an assiduous and consistent application of these tools has had a negative impact on the backlog of the Family Part and further drains dwindling judicial resources.  Litigants must have a true stake in the case in order for them to put emotions aside and be motivated to resolve their matter in a reasonable fashion.  Implementation of the two approaches stated above will motivate clients to act reasonably in the manner in which they direct their professionals.  Often time the courts blame the extent of litigation on the attorneys when, in fact, it is the clients who are directing the ship.  It is the clients who must be motivated to act reasonably.  If these recommendations, along with those contained within the conclusion of the excellent article authored by Jennifer Millner, Esq. of Fox, Rothschild, LLP found within this issue, are followed, it will have a profound impact on reducing the backlog of our Family Part.