Culture of Family Court

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Courtroom Psychology - The culture and theory of "groupthink" in the family court. the human nature need to fit in that can create an atmosphere where fiduciary duty and industry pressures can collide. Attorneys may ignore duty to report infractions of the Judge or other attorneys to maximize relationship values within the industry to avoid dis-favor .

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1AKING ;AVES OR /EEPING THE 'ALM# %NALYZING THE
-NSTITUTIONAL 'ULTURE OF *AMILY 'OURTS 8HROUGH
THE 0ENS OF 7OCIAL 4SYCHOLOGY +ROUPTHINK 8HEORY
Melissa L. Breger

I. I2863(9'8-32
The study oI the institutional culture oI Iamily courts oIIers a Iascinat-
ing glance into the inner workings oI courthouses. Yet, Iamily court cul-
ture has been largely overlooked in legal and cultural literature. While
there is no dearth oI scholarly writing on the issue oI culture, and a grow-
ing body oI work on the culture oI courthouses,
1
there is a paucity oI lite-
rature pertaining to the speciIic organizational culture oI Iamily courts.
2
This article seeks to commence a meaningIul dialogue concerning the or-
ganizational culture in Iamily courts nationwide. It will utilize the social
psychology theory oI groupthink as a backdrop to hypothesize why Iamily
court culture is unique and worthy oI Iurther study and to suggest ideas Ior
reIorm.
Why is the study oI courthouse culture so critical? ¨It has long been
recognized by court administrators and judges that culture plays an impor-
tant role in how courts Iunction.¨
3
Culture may have an impact upon
access to Iairness, justice,
4
due process, dignity,
5
and the perspectives oI
parties beIore the court. As such, analyzing courthouse culture, especially
criminal and Iamily court culture, is essential to ensuring that these ideals
do not go unIulIilled. These are the courts which ¨are called upon to re-
* Melissa L. Breger, ProIessor oI Law, Iormer Director oI the Family Violence Litigation
Clinic, Albany Law School, J.D., The University oI Michigan Law School, B.S., Psychology Honors
Program, The University oI Illinois at Urbana-Champaign. Thank you to ProIessors Annette Appell,
Christine Sgarlata Chung, Leigh Goodmark, Deborah Kearns, Mary Lynch, Timothy Lytton, and Jane
Spinak Ior sharing their valuable and constructive insights. Thanks to Bob Emery and the phenomenal
library staII at Albany Law School. Tremendous thanks to the research assistance oI Melissa Gonza-
lez, Lela Gray, and JenniIer Kim.
1. See, e.g., B6-%2J. O78631 )8%0., T6-%0C39687%7O6+%2->%8-327 (2007).
2. For some oI the leading works, see Amy Sinden, ¨Why Won'/ Mom Coopera/e'': A Cri/ique
of Informali/y in Child Welfare Proceedings, 11 Y%0)J.L. & F)1-2-71 339 (1999) and Martin Gug-
genheim, Divided Loyal/ies: Musings on Some E/hical Dilemmas for /he Ins/i/u/ional Criminal Defense
A//orney, 14 N.Y.U. R):. L. & S3'. C,%2+) 13 (1986) [hereinaIter Guggenheim, Divided Loyal-
/ies]. See also Martin Guggenheim & Randy Hertz, Reflec/ions on Judges, Juries, and Jus/ice: Ensur-
ing /he Fairness of Juvenile Delinquency Trials, 33 W%/)F36)78L. R):. 553 (1998).
3. O78631)8%0., supra note 2, at 3-4.
4. See id. at 92.
5. See id. at 146-47.
56 Law & Psychology Review [Vol. 34
solve some oI society`s most insoluble problems and to handle people with
whom other social institutions have Iailed miserably,¨ yet which ¨oIten
operate under a cloud.¨
6
Hence, ¨[t]he invisibility oI [trial court] activi-
ties contributes Iurther to the public`s skepticism oI these courts¨ and
¨reinIorce[s] perceptions . . . to Iurther undermine their credibility and
legitimacy.¨
7
My thesis is that the institutional culture oI Iamily courts across the
nation too oIten stiIles conversation and innovation, muIIles the voices oI
the disenIranchised, and serves as a disincentive Ior zealous legal advoca-
cy. The social psychology phenomenon known as ¨groupthink¨ can be
shown to be a contributing Iactor to this culture. In particular, lawyers,
court administrators, caseworkers, and judges involved in Iamily court
cases oIten operate in a groupthink-like modality, and that modality
while admittedly possessing some positive attributescan be harmIul to
parties involved in Iamily court proceedings and undermine perceptions oI
Iairness and justice. ThereIore, breaking groupthink bias would be a Ior-
ward step towards rethinking the culture oI Iamily courts.
There are some remarkably prominent patterns oI thinking and deci-
sion making that occur in the Iamily court setting, parallel to groupthink,
when crisis is injected into adversarial decision making involving the same
courthouse actors interacting in the same setting day aIter day. HopeIully,
awareness oI these patterns will encourage courthouse actors to conscious-
ly avoid Iaulty group decision making that adversely impacts parties and
Iamilies in the Iamily court system.
Part II deIines groupthink and discusses how its original proponent
and others have expanded and reIined its contours over the years. Part
II.A. discusses the three principal antecedents oI groupthink. Part II.B.
outlines three overarching symptoms oI groupthink. Part II.C. discusses
the link between Iaulty decision making and bad decisions. Part III.A.
deIines culture as it is utilized in this article. It then discusses the original
intentions oI Iamily court and certain aspects oI its culture, and identiIies
the power imbalance in Iamily court proceedings. Part III.B. analyzes
Iamily court institutional culture through the lens oI the principal group-
think antecedents. Part III.C. examines how the overarching symptoms oI
groupthink intersect with Iamily court institutional culture. Part IV out-
lines ideas Ior reIorming Iamily court institutional culture by drawing
Irom groupthink reIorm ideas. Part IV.A. discusses maintaining institu-
tional accountability and control and limiting the practice oI judges ap-
pointing particular attorneys to their cases, the Iirst reIorm idea. Part
6. P)8)6 F. N%6(900-, J%1)7 E-7)278)-2 & R3= B. F0)11-2+, T,) T)236 3* J978-').
C6-1-2%0 C39687 %2(8,) G9-08= P0)% P63')77 1 (1988) [hereinaIter N%6(900-)8 %0., T)236
3*J978-')].
7. Id. at 2.
2010] Making Waves or Keeping the Calm? 57
IV.B. introduces the second reIorm idea, which involves protecting whis-
tleblowers and dissenters` rights to opt out oI settlement negotiations. Part
IV.C. presents and discusses the Iinal reIorm idea. educating repeat play-
ers about the dangers oI groupthink. Part V concludes.
This article does not attempt to make any statistical or empirical claim
that groupthink is the sole determinant oI Iamily court institutional cul-
ture.
8
Rather, it uses the theory as a backdrop Ior analyzing the existing
culture oI Iamily courts while also oIIering ideas Ior reIorm. It is my
hope that this article will shed light on this understudied Iield and provide
a Ioundation Ior Iurther discussion and social science research eIIorts.
II. O980-2-2+T,)S3'-%0P7=',303+=T,)36=3*G63948,-2/
¨Man is by na/ure a poli/ical animal wi/h an inna/e /endency /o form in/o
groups.'
9
Aris/o/le
In 1972, Irving Janis arguably revolutionized social psychology when
he published Vic/ims of Group/hink.
10
Groupthink may be deIined as ¨a
mode oI thinking that people engage in when they are deeply involved in a
cohesive in-group, when the members` strivings Ior unanimity override
their motivation to realistically appraise alternative courses oI action.¨
11
Groupthink is one oI the more commonly cited and utilized theories oI
social psychology in the world,
12
having legitimized scores oI group dy-
namics, psychological research studies, and other experimental work by
8. My hypothesis is, however, drawn Irom sixteen years oI Iamily court work within and across
two states and seventeen counties across those states, as well as a decade oI discussion with other
Iamily law proIessors and practitioners in Iamily court about the culture and nature oI Iamily courts.
Additionally, I draw Irom the existing academic literature on the topic. I am not positing that all
Iamily courts in all jurisdictions nationwide are constant and unvarying, however, there are strikingly
similar parallels across every jurisdiction. A Iuture article is in progress that will inIuse these hypo-
theses with qualitative data oI a slightly diIIerent Iocus, introducing the concept oI organizational court
culture through the overlay oI other psychological theories, such as cognitive dissonance. This article
is part oI a larger project which analyzes Iamily courts as well as the lawyers, judges, and parties that
come beIore the court.
9. A6-78380), T,)P30-8-'7 (T.A. Sinclair trans., Penguin Books 1992) (350 B.C.).
10. See I6:-2+ L. J%2-7, V-'8-17 3* G63948,-2/. A P7=',303+-'%0 S89(= 3* F36)-+2-
P30-'= D)'-7-327 %2( F-%7'3)7 (1972) [hereinaIter J%2-7, G63948,-2/]. Since its inception,
groupthink has consistently rebutted critiques, remaining a valid principle to this day. It is also rou-
tinely included in many introductory and social psychology textbooks. See, e.g., G6%,%1)H-00, A
L):)0P7=',303+=T,639+,D-%+6%17271 (2d ed. 2001).
11. J%2-7, G63948,-2/, supra note 10, at 9.
12. See Marlene E. Turner & Anthony R. Pratkanis, Theore/ical Perspec/ives on Group/hink: A
Twen/y-Fif/h Anniversary Appraisal, 73 O6+%2->%8-32%0B),%:. & H91. D)'-7-32P63')77)7103,
103 (1998) (describing groupthink as ¨one oI the most pervasive and Iascinating models in the beha-
vioral sciences¨).
58 Law & Psychology Review [Vol. 34
giving a context to the processes and potential risks oI group decision
making.
13
Janis emphasized that it is the context, not the people, that contributes
to groupthink,
14
however, that is not to say that groupthink is a Iixed
attribute oI any group, nor is it dependent upon the types oI personalities
that happen to be dominant within the group.
15
A Iamous example oI a
Iiasco caused by groupthink, and the core inspiration Ior the theory, was
the Bay oI Pigs invasion.
16
Janis was particularly intrigued by the Bay oI
Pigs invasion because nearly the exact same group oI individuals involved
in this Iiasco engaged in positive decision making years later in averting
the Cuban Missile Crisis. One oI the more intriguing aspects oI the Bay
oI Pigs invasion to him was that the group members he studied were all
well-educated, intelligent individuals capable oI making reasoned and in-
dependent decisions. Essentially, these individuals might well have
reached diIIerent conclusions had they made their decisions outside oI the
groupthink dynamic.
The group mentality at work in many organizations prevents its mem-
bers Irom properly or independently thinking through their decisions as
thoroughly as they should, thereby causing them to deIault to short cuts or
stereotypes.
17
No one is truly immune Irom groupthink, even competent
individuals with high selI-esteem.
18
In Iact, Janis believes that ¨in certain
powerIul circumstances that make Ior groupthink, probably every member
oI every policy-making group . . . is susceptible . . . whenever circums-
tances promote concurrence-seeking.¨
19
He Iurther explains that.
II the same committee members show groupthink tendencies in
making decisions at one time and not at another, the determining
Iactors must lie in the circumstances oI their deliberations, not in
the Iixed attributes oI the individuals who make up the group. The
13. See id. at 4-5.
14. See J%2-7, G63948,-2/, supra note 10, at 8-9.
15. See id. at 9, 13.
16. See id. at 14.
17. I6:-2+ L. J%2-7, G63948,-2/. P7=',303+-'%0 S89(-)7 3* P30-'= D)'-7-327 %2(
F-%7'3)7 174-75 (2d ed., rev. 1982) [hereinaIter J%2-7, G63948,-2/ 2( )(.]. The term ¨group-
think¨ is reminiscent oI ¨doublethink,¨ a term coined by George Orwell in 1984. See J%2-7,
G63948,-2/, supra note 10, at 9. Many beIore Janis have said groups can bring out the worst as
well as the best in man. Friedrich Nietzsche went so Iar as to say that ¨madness is the exception in
individuals but the rule in groups.¨ Id. at 3 (paraphrased by Janis), see also F%6,%(D%0%0, R%'),
C30396 %2( 8,) P63')77 3* R%'-%0->%8-32. N); P)674)'8-:)7 *631 G6394 A2%0=7-7,
P7=',3%2%0=7-7 %2( S3'-303+= 33 (2002), K%8,0))2 M. G%0388-, M%/-2+ D)'-7-327 T,%8
M%88)6. H3; P)340) F%') I14368%28 L-*) C,3-')7 131 (2002). In this second edition, Janis
reIined and updated the theoretical constructs oI groupthink. The book also contains a re-examination
oI the six policy decisions analyzed in the Iirst edition along with Watergate and two positive policy
decisions, the Cuban Missile Crisis and the Marshall Plan.
18. See J%2-7, G63948,-2/2()(., supra note 17, at 243.
19. Id.
2010] Making Waves or Keeping the Calm? 59
determining Iactors thereIore seem to be variables that can be
changed and lead to new and more productive norms.
20
A common misconception about groupthink is that congeniality and
collegiality equals groupthink. Even though Janis cautions that high levels
oI ¨amiability and esprit de corps¨ within a group increases the chances
that groupthink will supplant individual members` critical analyses oI
problems, he points out that a high level oI such amiability will not auto-
matically lead to groupthink.
21
In Iact, iI certain saIeguards are present, a
cohesive group will likely make better decisions than a non-cohesive
group.
22
In another related theory oI group dynamics, social comparison
theory, people strive to veriIy iI their opinions are correct, but when the
correct answers are unavailable, they compare their ideas to those oI oth-
ers.
23
Janis cites to social comparison theory when explaining groupthink
decisions, which are not necessarily decisions in which a powerIul leader
subjugates the views oI others, but rather are a product oI true group dy-
namics.
24
In other words, group members buy into the decision and do
not necessarily Ieel as though they are being Iorced into a particular pat-
tern oI thinking, perhaps unaware oI the underlying subtle pressures ex-
erted by the group in order to reach consensus.
25
Over the past several decades, many researchers have come Iorth to
validate, expand upon, or criticize groupthink.
26
Paul 't Hart, Ior exam-
ple, has Iurther distilled, reshaped, and expanded upon the theory. He
20. Id. at 158.
21. See id. at 245.
22. See id. at 246.
23. Id. at 277 (noting the work Leon Festinger, A Theory of Social Comparison Processes, 7
H91. R)0. 117 (1954)), R94)68B63;2, G6394P63')77)7124 (2d ed. 2000).
24. See J%2-7, G63948,-2/2()(., supra note 17, at 193.
25. See id. at 3, B63;2, supra note 23, at 126-27, J%1)7 C. F6)92(, A(:-7) %2( I2:)28.
T,)L%;=)6%7C3927)036-S86%8)+-78%2(O8,)6E77%=7 28 (1990).
26. See e.g., P%90 '8 H%68, G63948,-2/-2 G3:)621)28. A S89(= 3* S1%00 G63947 %2(
P30-'=F%-096) (1990), Ramon J. Aldag & Sally Riggs Fuller, Beyond Fiasco: A Reappraisal of /he
Group/hink Phenomenon and a New Model of Group Decision Processes, 113 P7=',30. B900. 533
(1993), Robert S. Baron, So Righ/ I/'s Wrong: Group/hink and /he Ubiqui/ous Na/ure of Self Censor-
ship, 37 A(:%2')7E<4)6-1)28%0S3'. P7=',30. 219 (2005), Matie L. Flowers, A Labora/ory Tes/
of Some Implica/ions of Janis's Group/hink Hypo/hesis, 35 J. P)6732%0-8= & S3'. P7=',30. 888
(1977), Jeanne Longley & Dean G. Pruitt, Group/hink: A Cri/ique of Janis's Theory, 1980 R):.
P)6732%0-8= & S3'. P7=',30. 74, Clark McCauley, Group Dynamics in Janis's Theory of Group-
/hink: Backward and Forward, 73 O6+%2->%8-32%0 B),%:. & H91. D)'-7-32 P63')77)7 142
(1998), Gregory Moorhead & John R. Montanari, An Empirical Inves/iga/ion of /he Group/hink Phe-
nomenon, 39 H91. R)0. 399 (1986), Christopher P. Neck & Gregory Moorhead, Group/hink Remo-
deled: The Impor/ance of Leadership, Time Pressure, and Me/hodical Decision-Making Procedures, 48
H91. R)0. 537 (1995), Glen Whyte, Group/hink Reconsidered, 14 A'%(. M+18. R):. 40 (1989).
For a comprehensive overview, see generally James K. Esser, Alive and Well Af/er 25 Years: A Re-
view of Group/hink Research, 73 O6+%2->%8-32%0 B),%:. & H91. D)'-7-32 P63')77)7 116
(1998).
60 Law & Psychology Review [Vol. 34
casts groupthink in a more ¨comprehensive theoretical Iramework¨ de-
signed to reIlect the interdisciplinary perspectives oI social psychology,
public administration, and political science.
27
Others have argued that groupthink is a much broader concept with
wider application than when it was originally conceived.
28
For instance,
Baron insists that groupthink is much more ubiquitous than Janis implied
and applies to everyday situations just as much as high-powered political
decision making.
29
Although groupthink was initially conceived in a polit-
ical context and centered on Ioreign policy decisions, Janis himselI has
acknowledged a wider application oI the theory and addressed its use in
other areas, such as business decision making.
30
A. Three Principal An/eceden/s of Group/hink
The convergence oI three principal antecedents creates groupthink.
31
The Iirst antecedent is cohesiveness within a group.
32
The second antece-
dent is the presence oI structural Iaults within the organization oI the
group and can include insulation, lack oI impartial leadership, a lack oI
methodical procedures, and social and ideological homogeneity among
group members.
33
The third antecedent is the existence oI a provocative
situational context, which oIten encompasses high external stress and mor-
al dilemmas.
34
Cohesiveness is a multi-Iaceted construct and is Irequently examined.
35
Despite extensive research, many psychologists disagree about how cohe-
siveness is actually Iormed. Some studies have Iound a link between
¨selI-categorization and social identity aspects oI cohesiveness, rather than
. . . mutual attraction.¨
36
Other studies have shown that group identiIica-
27. See '8H%68, supra note 26, at 5.
28. Some psychologists still remain skeptical about the validity oI groupthink because it has never
been empirically tested. However, experimental testing may not be a realistic possibility as it would
be extremely diIIicult to artiIicially create group cohesion or devise a highly stressIul situation compa-
rable to a real-liIe crisis. Thus, even though the theory oI groupthink has not been conclusively prov-
en through scientiIic testing, it is still widely considered a viable theory despite its inherent testing
limitations.
29. See Baron, supra note 26.
30. See J%2-7, G63948,-2/2()(., supra note 17, at 242-43.
31. Unlike Janis, Baron suggests three diIIerent antecedents Ior groupthink. (1) social identiIica-
tion with a group oI individuals, (2) salient norms, and (3) low selI-eIIicacy. See Baron, supra note
26. In this article, I draw heavily Irom Janis`s original antecedents when applying groupthink to
Iamily court culture, however, I will also brieIly address the application oI Baron`s ¨salient norms.¨
32. See J%2-7, G63948,-2/2()(., supra note 17, at 243-45.
33. See id. at 244.
34. See id.
35. See Paul B. Paulus, Developing Consensus Abou/ Group/hink Af/er All These Years, 73
O6+%2->%8-32%0B),%:. & H91. D)'-7-32P63')77)7362, 368 (1998).
36. Glen Whyte, Recas/ing Janis's Group/hink Model: The Key Role of Collec/ive Efficacy in
Decision Fiascoes, 73 O6+%2->%8-32%0B),%:. & H91. D)'-7-32P63')77)7 185, 188 (1998).
2010] Making Waves or Keeping the Calm? 61
tion and social attraction are more positively linked to cohesion than actual
Iriendship.
37
In Iact, one study has Iound that cohesiveness can exist with-
in a group without the group members even liking each other.
38
Nardulli and colleagues careIully studied the courthouse culture oI
criminal courts Irom a sample oI demographically diverse counties in three
states to learn more about cohesion within those courthouses.
39
The re-
sults show that cohesiveness is tied closely to the prevalence oI ¨the gra-
pevine¨ (i.e., the exchange oI inIormation between individuals) among
courthouse workers.
40
The study also notes that some legal oIIices appear
to have automatic ¨internal cohesiveness,¨ thus Iacilitating the quick ex-
change oI the latest news about the courthouse.
41
Individuals who seek cohesion, peer approval, and preIer their work
colleagues to be good Iriends, regardless oI their Iriends` competence, are
more susceptible to groupthink.
42
Baum has also suggested that judges
desire to maintain their group identity and selI-preservation and oIten seek
approval Irom others, making them susceptible to groupthink as well.
43
These Iindings have important implications not only Ior lawyers, court
administrators, clerks, social workers, and judges who work together daily
in Iamily court, but also Ior the litigants appearing beIore Iamily courts.
B. Three Overarching Symp/oms of Group/hink
Next, we look at the three overarching symptoms that would be
present in cohesive decision-making groups operating under groupthink
bias.
44
These symptoms may be categorized as. (1) overestimation oI the
group`s invulnerability or belieI in inherent morality and insulation oI the
group Irom the judgments oI outsiders, (2) close-minded, stereotyped im-
ages oI outgroups, and (3) pressure towards uniIormity or the leader`s
promotion oI her preIerred solution.
45
Janis was surprised at his Iindings,
particularly in the context oI a group`s adherence to group norms and the
pressure towards uniIormity.
46
He explained that.
37. See Michael A. Hogg & Sarah C. Hains, Friendship and Group Iden/ifica/ion: A New Look a/
/he Role of Cohesiveness in Group/hink, 28 E96. J. S3'. P7=',30. 323, 338 (1998) (Iinding that
group identiIication and social attraction are more closely related to symptoms oI groupthink than
actual Iriendship).
38. See B63;2, supra note 23, at 45-52 (disproving the simplistic notion that cohesiveness and
Iriendship are one and the same).
39. See N%6(900-)8%0., T)2363*J978-'), supra note 6, at 56-60.
40. See id. at 124-25.
41. See id.
42. See J%2-7, G63948,-2/2()(., supra note 17, at 242.
43. See L%;6)2') B%91, J9(+)7 %2( T,)-6 A9(-)2')7. A P)674)'8-:) 32 J9(-'-%0
B),%:-3623 (2006).
44. See J%2-7, G63948,-2/2()(., supra note 17, at 174-75.
45. See id.
46. See id. at 11.
62 Law & Psychology Review [Vol. 34
Just as in groups oI ordinary citizens, a dominant characteristic
appears to be remaining loyal to the group by sticking with the de-
cisions to which the group has committed itselI, even when the
policy is working badly and has unintended consequences that dis-
turb the conscience oI the members. In a sense, members consid-
er loyalty to the group the highest Iorm oI morality. That loyalty
requires each member to avoid raising controversial issues, ques-
tioning weak arguments, or calling a halt to soItheaded thinking.
47
When a group displays all or most oI these symptoms, the symptoms oI
deIective decision making oIten Iollow and lower the probability oI a suc-
cessIul decision.
48
It is important to note that groupthink was not intended
to address situations in which a group leader makes clear what the decision
should be with others blindly Iollowing his lead.
49
Instead, groupthink
seeks to analyze the ¨subtle constraints, which the leader may reinIorce
inadvertently,¨ thereby preventing individual group members Irom think-
ing critically and independently.
50
C. An/eceden/s ÷ Symp/oms Leading /o Faul/y Decision Making
The link between Iaulty group decision making processes and bad de-
cisions is not absolute.
51
Notwithstanding Iaulty decision making
processes, a good decision can result iI the decision itselI is inherently
sound or some other Iavorable determinative Iactor outside oI the group
dynamic transIorms a bad result into a good one. Similarly, well-
conceived group decisions may utterly Iail due less to the process itselI
than to other contributing Iactors. For these reasons, this article will ana-
lyze the processes that a group Iollows when making decisions, rather than
the actual decisions themselves.
The remainder oI this article will describe and analyze Iamily court in-
stitutional culture and track the Iollowing Iormat.
1. First, are Iamily court decisions and decision makers (e.g.,
lawyers, judges, caseworkers) susceptible to the antecedents oI
groupthink?. (a) a cohesive group, (b) a Iaulty organizational
47. Id. at 11-12.
48. Id. at 175. The seven symptoms oI deIective decision making include. ¨(1) incomplete sur-
vey oI alternatives, (2) incomplete survey oI objectives, (3) Iailure to examine risks oI preIerred
choice, (4) Iailure to reappraise initially rejected alternatives, (5) poor inIormation search, (6) selective
bias in processing inIormation at hand, [and] (7) Iailure to work out contingency plans.¨ Id. (altera-
tion in original).
49. J%2-7, G63948,-2/, supra note 10, at 3.
50. Id.
51. See id. at 11-12, '8H%68, supra note 26, at 19.
2010] Making Waves or Keeping the Calm? 63
structure susceptible to groupthink, and (c) a highly stressIul, cri-
sis-level situation.
2. Next, iI the answer is ¨yes,¨ here are the symptoms we need
to be wary oI. (a) overarching sense oI morality by decision mak-
ers, (b) proclivity toward stereotypes and hostility to outside
groups, and (c) pressure to conIorm.
3. Finally, assuming the antecedents and symptoms oI groupthink
are present, here are ways to avoid the pitIalls oI Iaulty decision
making. (a) break group isolation through control and accountabil-
ity, (b) let objecting voices be heard and oIIer an opt out option
Ior dissenters, and (c) educate group members about the hazards
oI groupthink.
III. D)*-2-2+8,)C3283967%2(V%+%6-)73*F%1-0=C3968
I278-898-32%0C90896)%2(A2%0=>-2+8,)C90896)T,639+,8,)
L)273*G63948,-2/
A. Wha/ Is Mean/ by /he Concep/ of Family Cour/ Ins/i/u/ional Cul/ure'
¨The no/ion of cul/ure is everywhere invoked and vir/ually nowhere ex-
plained.'
52
Professor Naomi Mezey
Economists, sociologists, philosophers, legal theorists, psychologists
and others have saturated scholarly literature with discussions oI culture.
Most oI the early literature and discussion centered on corporate culture.
However, recent works have expanded the discussion to include the cul-
tures oI public agencies and courthouses.
53
Despite the abundance oI re-
search on the subject, the term ¨culture¨ itselI remains amorphous and
multiIaceted and is rarely deIined with precision.
54
52. Naomi Mezey, Law as Cul/ure, in C90896%0 A2%0=7-7, C90896%0 S89(-)7, %2( 8,)
L%;. M3:-2+B)=32(L)+%0R)%0-7137, 37 (Austin Sarat & Jonathan Simon eds., 2003) (address-
ing the value oI legal scholarship analyzing culture to highlight its ¨complexity as its virtue¨ and the
¨pervasiveness oI culture¨ which so inIorms our world).
53. See, e.g., O78631)8%0., supra note 3 (applying the discussion oI culture to trial courts).
54. See Mezey, supra note 52, at 37. ¨Culture can mean so many things. collective identity,
nation, race, corporate policy, civilization, arts and letters, liIestyle, mass-produced popular artiIacts,
ritual.¨ Id. There are myriad Iorms oI culture. This article will address what is oIten termed ¨insti-
tutional¨ or ¨organizational¨ culture. These two terms are used interchangeably throughout this
article even though there are subtle diIIerences between them. For purposes oI this article, these terms
will be used to reIer to a set oI inIormal norms and rules oI behavior in the particular setting oI Iamily
court. Within that idea oI organizational culture, scholars have additionally coined the term ¨local
legal culture,¨ which implies the ¨shared belieIs, expectations, and attitudes within the local court
64 Law & Psychology Review [Vol. 34
Organizational or institutional culture is oIten described by theorists as
the overarching, unspoken code oI the insiders, who proclaim (whether
implicitly or explicitly) that ¨this is the way things are done around here,¨
oIten as part oI eIIorts to set themselves apart Irom outsiders.
55
The insti-
tutional insiders in Iamily courtthe lawyers, the clerks, the judges, the
social workers, the probation oIIicers, the court oIIicersand their dy-
namics and interactions with each other and with the parties who appear in
Iamily court combine to shape the institution`s culture.
56
Many scholars have deIined culture in similar terms. A primary,
somewhat unencumbered, deIinition oI organizational culture stems Irom
one oI the original theorists on the topic oI culture, Edgar Schein. Schein
deIines organizational culture as.
A pattern oI basic assumptionsinvented, discovered, or devel-
oped by a given group as it learns to cope with its problems oI ex-
ternal adaptation and internal integrationthat has worked well
enough to be considered valid and, thereIore, to be taught to new
members as the correct way to perceive, think and Ieel in relation
to those problems.
57
Additionally, Mashaw and HarIst have theorized that, while an outsider to
the culture might Iind it diIIicult to ascertain hard evidence oI what com-
prises a particular culture, those Iamiliar with the culture will Iind it much
easier to discern the assumptions which are ¨embedded in the persistent
norms, institutions, and processes oI the legal order.¨
58
The study oI
courtroom culture is similarly inIused with the analysis oI assumptions,
norms, and processes.
59
community.¨ O78631 )8 %0., supra note 3, at 9, see also T,31%7 C,96',, J6. )8 %0., J978-')
D)0%=)(. T,) P%') 3* L-8-+%8-32 -2 U6&%2 T6-%0 C39687 54 (1978) (describing ¨local legal
culture¨ as ¨established expectations, practices, and inIormal rules oI behavior oI judges and attor-
neys¨).
55. Sinden, supra note 2, at 350-55.
56. See id.
57. E(+%6 H. S',)-2, O6+%2->%8-32%0 C90896) %2( L)%()67,-4 9 (1985), see also J)66=
L. M%7,%;& D%:-(L. H%6*78, T,)S869++0)*36A983S%*)8= 19-20 (1990).
58. S',)-2, supra note 57, at 20. Notably, critics oI Schein`s deIinition dislike the reIerence to
the unquantiIiable ¨pattern oI basic assumptions.¨ See id.
59. See O78631)8%0., supra note 3, at 2. Ostrom Iurther explains that.
Even in the adversary world oI law, [those] who work together and understand each other
eventually develop shared conceptions oI what are acceptable, right and just ways oI deal-
ing with speciIic kinds oI oIIenses, suspects and deIendants. These conceptions Iorm the
bases Ior understandings, agreements, working arrangements and cooperative attitudes.
Norms and values grow and become a Irame oI reIerence which prosecutors, deIense attor-
neys, judges and experienced oIIenders all use Ior deciding what is Iair in each case. Over
time, these shared patterns oI belieI develop the coherence oI a distinct culture, a style oI
social expression peculiar to the particular courthouse.
2010] Making Waves or Keeping the Calm? 65
In order to properly explore and analyze the institutional culture oI
Iamily courts, it is important to have a requisite understanding oI the orig-
inal intentions and underpinnings oI juvenile courts. The Iirst juvenile
court was created at the turn oI the twentieth century
60
to provide an ame-
liorative and accessible court system Ior juveniles who would otherwise be
charged as adult criminals.
61
The juvenile courts and the judges were
originally envisioned to be substitute parents or ¨parens patriae.¨
62
The
juvenile courts eventually morphed into Iamily courts, hearing both juve-
nile court matters and domestic relations cases.
63
Today, every state has at least one juvenile or Iamily court,
64
as do
almost all industrialized countries.
65
Though their names may vary
dependency courts, Iamily courts, juvenile courts, and probate courts are a
Iew common variationstheir genesis and purposes are largely the same.
to attend to the unique nature oI childhood and Iamily issues. Unlike the
purpose oI criminal courts, their aim is not to punish or penalize, but ra-
ther to help Iamilies and children.
66
Peter F. Nardulli, 'Insider' Jus/ice: Defense A//orneys and /he Handling of Felony Cases, 77 J. C6-1.
L. & C6-1-2303+= 379, 388 (1986) [hereinaIter Nardulli, 'Insider' Jus/ice], see also A68,96
R37)88 & D32%0( R. C6)77)=, J978-') &= C327)28. P0)% B%6+%-27 -2 8,) A1)6-'%2
C3968,397) (1976).
60. See, e.g., C0)1)27 B%68300%7, J9:)2-0) D)0-259)2'= 12 (5th ed. 1999), R3&)68 M.
M)22)0, T,3627 & T,-780)7. J9:)2-0) D)0-259)287 -2 8,) U2-8)( S8%8)7 1825-1940, at 130
(1973), A28,32=M. P0%88, T,)C,-0(S%:)67. T,)I2:)28-323*D)0-259)2'= 101 (1969).
61. See M)22)0, supra note 60, at 130-32, see also Emily Buss, The Missed Oppor/uni/y in
Gaul/, 70 U. C,-. L. R):. 39, 39-40 (2003), Kerrin C. WolI, Jus/ice by Any O/her Name: The Righ/
/o a Jury Trial and /he Criminal Na/ure of Juvenile Jus/ice in Louisiana, 12 W1. & M%6=B-00R87.
J. 275, 278-79 (2003), Korine L. Larsen, Comment, Wi/h Liber/y and Juvenile Jus/ice for All: Ex/end-
ing /he Righ/ /o a Jury Trial /o /he Juvenile Cour/s, 20 W1. M-8',)00L. R):. 835, 841-43 (1994).
Bu/ see P0%88, supra note 60, at 36-43 (arguing that the move toward juvenile courts was more about
the elite`s social control over immigrant and minority youth).
62. See B0%'/`7L%; D-'8-32%6= 1221 (9th ed. 2009) (deIining ¨parens patriae¨ as ¨parent oI
his or her country¨).
63. See P6)7832 E063( & R. S'388 R=()6, J9:)2-0) J978-'). A S3'-%0, H-7836-'%0, %2(
L)+%0 P)674)'8-:) 236 (1999), M)22)0, supra note 60, at 132, 150, Willis B. Perkins, Family
Cour/s, 17 M-',. L. R):. 378, 37881 (1919). Some states have a number oI these courts, overlap-
ping in powers, while other states have merged all Iamily and child-related issues into one court. See
E063( & R=()6, supra, at 233-34. Throughout the remainder oI this article, I will use the term
¨Iamily court¨ to reIer to any type oI court that handles primarily domestic or juvenile matters.
64. See Janet E. Ainsworth, Re-Imagining Childhood and Recons/ruc/ing /he Legal Order: The
Case for Abolishing /he Juvenile Cour/, 69 N.C. L. R):. 1083, 1083 n.1 (1991), see also E063( &
R=()6, supra note 63, at 233.
65. See Ainsworth, supra note 64, at 1083 n.2 (listing countries which have Iamily or juvenile
court systems).
66. See, e.g., N.Y. F%1. C8. A'8 § 1011 (McKinney 2009) (stating that the purpose oI Iamily
court is to ¨protect children Irom injury or mistreatment¨). Likewise, New York law codiIies that
Iamily court orders oI protection are to be issued not to mete out punishment but to ¨stop the violence,
end the Iamily disruption and obtain protection.¨ Id. § 812(2)(b), see also In re Gault, 387 U.S. 1,
18-19 (1967), M)22)0, supra note 60, at 130-32, WolI, supra note 61, at 278-79, Larsen, supra note
61, at 841-43, cf. P0%88, supra note 60, at 36-43 (arguing that the move toward juvenile courts was
less about protecting children and more about the elite`s social control over immigrant and minority
youth).
66 Law & Psychology Review [Vol. 34
Over time, the therapeutic nature and relaxed procedures oI Iamily
courts raised criticism, and the Supreme Court emphasized the need to
provide Iamily court litigants with clear rules and due process rights.
67
For example, the Supreme Court in In re Gaul/ held that juveniles have
many constitutional rights, including the right to counsel, the right against
selI-incrimination, the right to have notice oI charges, and the right to
conIront witnesses.
68
The Court also criticized Iamily court`s inIormal,
sometimes lax, courtroom procedures, noting that ¨Juvenile Court history
has again demonstrated that unbridled discretion, however benevolently
motivated, is Irequently a poor substitute Ior principle and procedure.¨
69
As a result oI Supreme Court precedent and other reIorm eIIorts, Iam-
ily courts nationwide ultimately evolved to become more adversarial in
nature. Yet, even with a push toward more Iormality, even today many
Iamily courts maintain a sense oI inIormality, which while oIten well in-
tentioned, can be harmIul to the Iamilies served. Although there are many
Iactors which contribute to Iamily court culture, this discussion will target
three primary Iactors and relate them to the antecedents oI groupthink.
The three Iactors are as Iollows. (1) the residual inIormality in the cour-
trooms, arguably stemming Irom the Iamily court`s original therapeutic
intentions, (2) the inIlux oI repeat lawyers, coupled with bench trials in-
stead oI jury trials, and (3) the crisis-driven nature oI Iamily court pro-
ceedings. To narrow the analysis even Iurther, the discussion will Iocus
primarily on child welIare and child protective proceedings.
70
Family court child protective cases involve not only the parties whose
rights are at stake, but also an array oI individuals charged with certain
duties (repeat players) who ensure that the cases are proceeding to a just
result. The everyday institutional players typically involved in child pro-
tective cases include the judge, one or more agency caseworkers, the at-
torney Ior the petitioning agency or Ior the county, an attorney Ior the
child, and the attorneys Ior the parents, iI any.
71
At times, other players
may work on these cases such as treatment providers, social workers, psy-
chologists, psychiatrists, or mediators.
72
Child protective cases generally enter the courthouse pursuant to an
emergency or by the state child welIare agency Iiling a petition with the
67. See, e.g., Santosky v. Kramer, 455 U.S. 745 (1982) (parents in termination oI parental rights
cases), In re Gaul/, 387 U.S. at 28 (juveniles), Kent v. United States, 383 U.S. 541 (1966) (juveniles).
68. See In re Gaul/, 387 U.S. at 28-31.
69. Id. at 18.
70. Unless otherwise stated, the phrases ¨child welIare proceedings¨ and ¨child protective pro-
ceedings¨ will be used interchangeably throughout the remainder oI this article.
71. J3,2 E.B. M=)67, C,-0( P638)'8-32 -2 A1)6-'%. P%78, P6)7)28, %2( F9896) 206-14
(2006).
72. See id. at 173-224.
2010] Making Waves or Keeping the Calm? 67
court.
73
During the proceedings, the agency bears the burden oI proving
that child abuse or neglect has occurred and that it was perpetrated by the
child`s caretaker. II the agency requests that the child be removed imme-
diately Irom her home, the agency would typically need to demonstrate to
the judge that imminent harm will occur iI the child remains in her
home.
74
II so, the case proceeds Iurther, and the parents then have the
option oI deciding whether the case will go to a Iull evidentiary trial.
75
II
the judge determines aIter trial that child abuse or neglect has occurred,
the case then proceeds to the dispositional stage where the primary Iocus is
on whether the child will remain in the home or, iI not, where the child
will live. Ultimately, these cases can result in the termination oI parental
rights, a permanent severing oI the parent-child relationship.
The same institutional playerslawyers, government workers, and
judgesare involved in each stage oI child protective cases, and these
players oIten deIine and establish the norms and ¨insider¨ rules oI court-
house culture.
76
These institutional players are ultimately responsible Ior
determining the outcome oI critical and sensitive Iamily matters. As such,
these players wield tremendous power over parents and children brought
beIore the court.
77
B. Analyzing Family Cour/ Ins/i/u/ional Cul/ure Through /he Lens of
Group/hink An/eceden/s
As outlined above, the unique aspects oI Iamily court institutional cul-
ture are closely aligned with the antecedents oI groupthink. First, repeat
players in the courtroom setting, such as judges, lawyers, and social
workers, Iacilitate the creation oI group cohesion. Second, inIormal pro-
73. S. Wells, Wha/ Cri/eria Are Mos/ Cri/ical /o De/ermine /he Urgency of /he Child Pro/ec/ive
Services Response', in H%2(&33/ *36 C,-0( P638)'8-32 P6%'8-') 7, 7-9 (H. Dubowitz & D.
DePanIilis eds., 2000).
74. The ultimate standard and burdens oI prooI would be determined by state law.
75. For example, see A6->. R):. S8%8. A22. § 8-844 (2009) which dictates the process underly-
ing abuse or neglect determination in Arizona.
76. See N%6(900-)8%0., T)2363*J978-'), supra note 6, at 40 (¨What types oI cases should
go to trial? What prosecutorial practices constitute overreaching? Veteran members . . . pass this
inIormation on to new recruits.¨).
77. See Kathleen S. Bean, Changing /he Rules: Public Access /o Dependency Cour/, 79 D)2:. U.
L. R):. 1 (2001). Bean Iurther states that.
The Iamiliarity that these court workers have with the system and with each other can breed
a ¨go along to get along¨ philosophy that pressures not only the regular participants, but al-
so the parents and thus their children to conIorm and comply. The culture that results is
one that does not always encourage thorough and accurate Iact-Iinding or thoughtIul deci-
sions about the important matters beIore the court.
Id. at 47, see also Shari F. Shink, Hallmarks: New Direc/ions in /he Defense of Children, 26 C303.
L%;. 39, 40 (1997), Sinden, supra note 2, at 350-55.
68 Law & Psychology Review [Vol. 34
cedures in Iamily court cases and pressure to resolve disputes in a thera-
peutic, non-adversarial manner are structural aspects oI an organization
that may be more prone to groupthink-like decision making. Third, Iamily
courts must Irequently address crises when hearing and deciding child
protective cases.
Groupthink can invade the decision making process in Iamily court
cases in two distinct ways. First, groupthink can occur during the actual
court proceedings. The second, more subtle way in which groupthink can
aIIect decision making is through discourse among institutional players
that occurs beIore, aIter, and between cases. Thus, my discussion will
address groupthink in both oI these contexts and analyze the incremental
steps taken to reach a Iinal decision, rather than analyzing the Iinal deci-
sion in isolation. Some speciIic examples oI the incremental steps that
may be taken to reach a decision in a child protective case include. wheth-
er the child`s attorney interviews the child, whether the judge and lawyers
involved in the case consider the child`s wishes, whether the parties to the
case settle, and whether one considers the reaction oI the judge or oppos-
ing counsel iI the case goes to trial.
Groupthink has the power not only to aIIect individual cases, but also
to permeate the decision making processes oI Iuture cases. Groupthink
can result in a symbiotic herd mentality Iostered among institutional play-
ers, through monolithic thinking and myopic decision making, or through
the court`s entrenched resistance to outsiders or outside opinions. Group-
think can discourage group members Irom challenging the status quo and
oIten stiIles innovation and Iresh dialogue among institutional players. II
leIt unchecked in Iamily court, groupthink can result in ¨mindless conIor-
mity¨ and a ¨collective misjudgment oI serious risks¨ in case decisions,
thus negatively impacting parties, in particular, and the legitimacy oI Iami-
ly court, in general.
78
1. The Informali/y and Inheren/ Power Imbalances in Child Pro/ec/ive
Proceedings as /he Firs/ An/eceden/ /o Group/hink: S/ruc/ural Aspec/s
of /he Organiza/ion
¨Under our Cons/i/u/ion, /he condi/ion of being a boy does no/ jus/ify a
kangaroo cour/.'
79
Uni/ed S/a/es Supreme Cour/
As noted earlier, despite the Supreme Court`s decisions
80
Iamily courts
today still retain much inIormality both legally and structurally.
81
Legally,
78. See J%2-7, G63948,-2/2()(., supra note 17, at 3.
79. In re Gault, 387 U.S. 1, 28 (1967).
2010] Making Waves or Keeping the Calm? 69
evidentiary standards can be relaxed in many child welIare proceedings so
that judges can access as much inIormation as possible on behalI oI child-
ren`s best interests and saIety. Additionally, many Iamily court proceed-
ings are biIurcated into Iact-Iinding hearings and dispositional hearings,
with the latter permitting traditionally inadmissible evidence. Thus, in
circumstances where the Iact-Iinding and dispositional phases are heard
together, non-competent evidence is oIten allowed to shape the Iacts oI the
case. Moreover, with the national trend oI assigning one judge to handle
all oI a Iamily`s disputes (¨one Iamily, one judge¨), judges are oIten privy
to Iar more inIormation than they would otherwise be under a diIIerent
court model.
82
Another Iactor contributing to Iamily court`s inIormal organizational
culture involves the Irequent occurrence oI ex parte conversations between
the judge and attorneys, oIten while waiting Ior cases to be called. Even
iI these improper conversations do not aIIect the Iinal outcome oI a given
case, the practice has the appearance oI impropriety
83
and, in most cases,
is speciIically Iorbidden.
84
Additionally, some Iamily court judges have a
practice oI calling ¨attorneys only¨ into the courtroom and initiating an
oII-the-record inIormal discourse about the case outside oI the presence oI
the parties. In addition to the risks inherent in unrecorded dialogue be-
tween the bench and the bar, parties may Ieel uneasy that it is not them-
selves, but rather the educated ¨insiders,¨ who are discussing /heir Iami-
lies and making decisions that aIIect /heir lives in a clandestine meeting
80. See cases cited supra note 67.
81. Structurally, many Iamily courts are housed in buildings that do not resemble courthouses and
in rooms that do not resemble courtrooms or have deteriorating conditions. This structural setting can
aIIect a court`s culture in a multitude oI ways. For example, Iormer ChieI Judge oI New York, Law-
rence H. Cooke noted that. ¨Poor physical conditions in our courthouses not only detract Irom the
dignity oI the law, they also adversely aIIect the decorum oI court proceedings, have a psychologically
depressing eIIect on already burdened parties to criminal and civil actions, and decrease the morale oI
court employees.¨ T,) F92( *36 M3()62 C39687, R)4368 32 N-%+%6% C3928= (Jan. 1989)
(quoting Judge Cooke). Former New York ChieI Justice Judith Kaye successIully Iought to reIurbish
or replace as many Iamily court courthouses in New York as possible during her tenure.
82. See Andrew Schepard & James W. Bozzomo, Efficiency, Therapeu/ic Jus/ice, Media/ion, and
Evalua/ion: Reflec/ions on a Survey of Unified Family Cour/s, 37 F%1. L.Q. 333, 341 (2003), see also
Jane M. Spinak, Romancing /he Cour/, 46 F%1. C8. R):. 258 (2008) [hereinaIter Spinak, Romancing
/he Cour/] (evaluating the beneIits and drawbacks oI the traditional court model where a detached
judge rules on issues versus the specialty court model where the judge takes a more active role as a
participant in disputes).
83. See Roberta K. Flowers, An Unholy Alliance: The Ex Par/e Rela/ionship Be/ween /he Judge
and /he Prosecu/or, 79 N)&. L. R):. 251, 272 (2000) (¨The citizen that observes a Iriendly relation-
ship between the judge and the prosecutor may question the Iairness oI that proceeding.¨), see also
Melissa L. Breger, In/roducing /he Cons/ruc/ of /he Jury in/o Family Violence Proceedings and Family
Cour/ Jurisprudence, 13 M-',. J. G)2()6 & L. 1 (2006) (discussing the possibility oI jury trials in
Iamily courts, one solution to reduce the power imbalance between courthouse insiders and litigants).
84. See, e.g., M3()0 C3() 3* J9(-'-%0 C32(9'8 C%232 3(B)(7) (1999) (¨A judge shall not
initiate, permit, or consider ex parte communications, or consider other communications made to the
judge outside the presence oI the parties . . . .¨).
70 Law & Psychology Review [Vol. 34
behind closed doors.
85
Amy Sinden`s Ieminist critique oI the inIormality
oI Iamily courts, in the context oI child protective proceedings, aptly
summarizes the problem as Iollows.
[A] subtle dynamic arises on a day-to-day level . . . due in part to
the prevalence oI social work discourse and the tendency oI the
participants to view these cases in therapeutic rather than legalistic
terms. This dynamic implicitly suppresses rights talk and discou-
rages the participants Irom taking advantage oI those procedural
protections that do exist.
86
Moreover, as explained above, the power imbalance is especially pro-
nounced in Iamily court child protective proceedings because the social
workers, lawyers, and judges wield such tremendous power over whether
a Iamily stays together. The power imbalance becomes especially salient
when you consider that the parties in Iamily court are oIten educationally
or economically disadvantaged and are overwhelmingly women and per-
sons oI color, which is in stark contrast to an overwhelmingly homogen-
ous majority oI the bench and the bar.
87
85. Parties in Iamily courts across the nation are increasingly selI-represented. A power imbal-
ance is inherent in the dynamics oI a lawyer-represented party versus a pro se party. Thus, this inIu-
sion oI selI-represented litigants coupled with the inIormal roots oI Iamily court adds to the unique
institutional culture. Family courts are oIten termed ¨the poor people`s court¨ due to the overwhelm-
ing majority oI poor parties appearing beIore them, and in states such as New York, a party need not
pay any Iiling Iees or retain a lawyer to have access to the court. Data has shown that, in the majority
oI Iamily law cases nationally, at least one party does not have an attorney. See J%2)C. M964,=&
R3&)68 R9&-2732, F%1-0= M)(-%8-32. T,)36= %2( P6%'8-') 160 (2009), Robert Rubinson, A
Theory of Access /o Jus/ice, 29 J. L)+%0P63*. 89, 114-16 (2004-05), see also Deborah J. Chase, Pro
se Jus/ice and Unified Family Cour/s, 37 F%1. L.Q. 403 (2003) (cautioning that with an inIlux oI pro
se litigants, Iamily courts must be diligent not to repeat the same mistakes oI unstructured, inIormal
court procedures pre-Gaul/). In the context oI the criminal system, see P)8)6 F. N%6(900-, T,)
C39686331 E0-8). A2 O6+%2->%8-32%0 P)674)'8-:) 32 C6-1-2%0 J978-') 66-81 (1978) [herei-
naIter N%6(900-, T,)C39686331E0-8)].
86. Sinden, supra note 2, at 343-44.
87. See Leah A. Hill, Do You See Wha/ I See' Reflec/ions on How Bias Infil/ra/es /he New York
Ci/y Family Cour/ /he Case of /he Cour/ Ordered Inves/iga/ion, 40 C3091. J.L. & S3'. P63&7. 527
passim (2007), Jane M. Spinak, Why Defenders Feel Defensive: The Defender's Role in Problem-
Solving Cour/s, 40 A1. C6-1. L. R):. 1617, 1617 (2003) [hereinaIter Spinak, Why Defenders Feel
Defensive], see also Martin Guggenheim, The Fos/er Care Dilemma and Wha/ /o Do Abou/ I/: Is /he
Problem Tha/ Too Many Children Are No/ Being Adop/ed Ou/ of Fos/er Care or Tha/ Too Many Child-
ren Are En/ering Fos/er Care', 2 U. P%. J. C3278. L. 141, 144-45 (1999) [hereinaIter Guggenheim,
Fos/er Care Dilemma], Randolph Stone, Race and Imprisonmen/, 7 U. C,-. L. S',. R392(8%&0)
127, 127-28 (2000). Issues oI race, ethnicity, and class in Iamily courts cannot be overlooked when,
in cities such as Chicago, over 95% oI children in Ioster care are non-white. This disparity is shock-
ingly high in the New York area where one out oI every ten children Irom central Harlem is placed in
Ioster care (as compared to only 200 in total Irom the well-to-do Upper East Side). See M%68-2
G9++)2,)-1, W,%8`7 W632+ ;-8, C,-0(6)2`7 R-+,87 205 (2005) [hereinaIter G9++)2,)-1,
C,-0(6)2`7R-+,87], see also L)63=H. P)0832, F36R)%73273*P3:)68=. A C6-8-'%0A2%0=7-7
3*8,)P9&0-'C,-0(W)0*%6)S=78)1-28,)U2-8)(S8%8)7(1989).
2010] Making Waves or Keeping the Calm? 71
Our discussion oI Iamily court culture would be remiss without ac-
knowledging that there have been several growing movements to reIorm
Iamily courts which tend to intersect, overlap, and at times, converge.
Some oI the more prominent movements include the alternative dispute
resolution movement, collaborative law movement,
88
the movement to
return Iamily courts back to their original roots as problem-solving
courts,
89
and therapeutic jurisprudence in all areas oI the law.
90
This ar-
ticle does not support one Iorm oI adjudication over another, yet notes that
in less Iormalistic, less due process-oriented Irameworks, the courthouse
culture can perhaps become more susceptible to groupthink.
91
It is admittedly true that alternative means oI dispute resolution outside
oI the adversarial Iamily court system are oIten in the best interests oI
children and Iamilies. These alternatives seek to empower litigants and
decrease the acrimony among Iamily members in an inIormal setting.
Non-litigation resolutions can, in Iact, be Iair and legitimate options, and
judges and lawyers in Iamily court should encourage amicable resolutions
Ior reasons oI eIIiciency and promoting Iamily harmony.
92
However, the
88. See, e.g., M3()0 U2-*361 C300%&36%8-:) L%; A'8 (2009), Lawrence P. McLellan,
Expanding /he Use of Collabora/ive Law: Considera/ion of I/s Use in a Legal Aid Program for Resolv-
ing Family Law Dispu/es, 2008 J. D-74. R)730. 465, see also Terri Breer, Has /he Family Law Sys/em
Reached a Tipping Poin/', O6%2+) C3928= L%;. M%+., Mar. 2009, at 23 (discussing resistance
Irom lawyers accustomed to an adversarial system toward transitioning away Irom an adversarial
model).
89. See, e.g., Judge Leonard P. Edwards, Superior Court oI Santa Clara County, Cal., Remarks
oI Judge Leonard P. Edwards at the Presentation oI the William H. Rehnquist Award Ior Judicial
Excellence (Nov. 18, 2004), www.improvingoutcomesnetwork.org/downloadDocument.jsp?docid=8.
90. See, e.g., D%:-(B. W)<0)6& B69')J. W-2-'/, E77%=7-2T,)6%4)98-'J96-7469()2')
(1991), see also P6%'8-'-2+T,)6%4)98-'J96-7469()2'). L%;%7%H)04-2+P63*)77-32(Dennis
P. Stolle et al. eds., 2000), Barbara A. Babb, An In/erdisciplinary Approach /o Family Law Jurispru-
dence: Applica/ion of an Ecological and Therapeu/ic Perspec/ive, 72 I2(. L.J. 775 (1997), cf. Barbara
Atwood, Therapeutic Jurisprudence and American Family Law. A Modest Caveat About Our Good
Intentions (2006) (unpublished manuscript, on Iile with author).
91. A complete discussion oI these broad and important topics is outside the scope oI this article.
They are introduced here only to highlight that there are oIten inherent tensions among Iamily law
movements. See Jane M. Spinak, Reforming Family Cour/: Ge//ing i/ Righ/ Be/ween Rhe/oric and
Reali/y, 31 W%7,. U. J.L. & P30`= 11 (2009) [hereinaIter Spinak, Reforming Family Cour/]. To
date, there is no deIinitive empirical evidence that problem-solving courts are indeed better Ior child-
ren and Iamilies, and to the contrary, recent studies have shown the opposite in terms oI expediency,
eIIiciency, and the like. See, e.g., Nuno Garoupa et al., Assessing /he Argumen/ for Specialized
Cour/s: Evidence from Family Cour/s in Spain, 24 I28`0 J.L. P30`= & F%1. 54, 55-66 (2010), Spi-
nak, Reforming Family Cour/, supra passim, Spinak, Romancing /he Cour/, supra note 82, at 258, see
also Trina Grillo, The Media/ion Al/erna/ive: Process Dangers for Women, 100 Y%0) L.J. 1545
(1991) (outlining how non-adversarial procedures can disempower battered women).
92. It cannot be ignored that any overcrowded, heavily burdened courthouse inevitably houses
underpaid lawyers, caseworkers, judges, and court personnel who are all burdened with crushing
caseloads. Thus, in exploring these areas, one must be mindIul oI such pressures. Not every Iamily
court case can or should proceed to a Iull evidentiary trial with multiple expert witnesses. However,
one must remain equally cognizant that working in such an environment does not justiIy ineIIective
assistance oI counsel. In Martha Davis`s insightIul book about the poverty law movement, she men-
tions a placard that was distributed to the New York City Legal Aid Society lawyers in 1907. It
quoted Abraham Lincoln as stating. ¨Discourage litigation. Persuade your neighbor to compromise
72 Law & Psychology Review [Vol. 34
best interests oI parties are not served iI inIormality erodes due process
rights or iI lawyers pressure settlement in dereliction oI their duty to pro-
vide zealous advocacy to their clients.
93
2. The Influx of Repea/ Players Coupled wi/h /he Prevalence of Bench
Trials in Child Pro/ec/ive Proceedings as /he Second An/eceden/ /o
Group/hink: Highly Cohesive Group
The constant inIlux oI repeat players in the courthouse plays a role in
shaping Iamily court institutional culture. The term ¨repeat players¨ can
include lawyers, judges, court personnel, and even parties who repeatedly
appear in the same court.
94
While it is unIortunately true that many par-
ties return to Iamily court month aIter month and may be termed repeat
players, the Iocus here is upon the lawyers who tend to represent similarly
situated litigants day aIter day. When a courthouse Irequently conducts
bench trials and employs a staII oI regular courthouse lawyers, the institu-
tional culture is Iormed, in part, by the dynamics oI having the same at-
torneys appear beIore the same judges day aIter day.
DeIense attorneys in Iamily court represent scores oI individuals who
have been accused oI child abuse and neglect. Similarly, those lawyers
who prosecute the parents accused oI child abuse or neglect consistently
represent the county, state, or child welIare agency. These two sets oI
lawyers regularly oppose each other day aIter day beIore the same set oI
whenever you can. Point out to them how the nominal winner is oIten the real loserin Iees, ex-
penses and waste oI time. As a peacemaker the lawyer has a superior opportunity oI being a good
man.¨ M%68,%F. D%:-7, B698%0 N))(. L%;=)67%2(8,)W)0*%6)R-+,87 M3:)1)281960-
1973, at 10 (1993). Part oI this institutional policy to push Ior settlements was due to the situation oI
clients living in dire Iinancial need and requiring resolution oI welIare cases without delay, but the
¨local courts were [also] IrightIully congested¨ which created added pressure Ior lawyers to arrive at
settlements. Id. at 13 & n.24.
93. For example, ProIessor Paul Chill examined these insider eIIects in child welIare proceedings
and made the Iollowing observation.
Finally, the very knowledge by system insiders oI the tendency oI emergency removals to
become selI-reinIorcing itselI contributes to the phenomenon . . . [Parties] are told that
their best chance oI regaining custody quickly is by showing 'cooperation' and settling.
This creates enormous pressure to settle, and most parents in Iact do. Se//ling in this con-
text generally means admitting or pleading nolo con/endre to abusing or neglecting the child
and accepting the services deemed necessary by the CPS agency to permit the child to re-
turn home. Thus, some cases that might actually result in a child being returned home
quickly, iI the parents were to litigate the matter aggressively, wind up being settled with
the child remaining in Ioster care Ior an extended period.
Paul Chill, Burden of Proof Begone: The Pernicious Effec/ of Emergency Removal in Child Pro/ec/ive
Proceedings, 41 F%1. C8. R):. 457, 462 (2003).
94. See Marc Galanter, Why /he ¨Haves' Come Ou/ Ahead: Specula/ions on /he Limi/s of Legal
Change, 9 L%; & S3'`= R):. 1 (1974) [hereinaIter Galanter, Why /he ¨Haves' Come Ou/ Ahead]
(coining the term ¨repeat players¨ in legal parlance and diIIerentiating repeat players Irom ¨one-
shotters¨).
2010] Making Waves or Keeping the Calm? 73
Iamily court judges. Add to the mix the attorneys Ior the children, and up
to three attorneys (Iour iI each parent has a separate attorney) may be in-
volved in any given child welIare case. It is quite common Ior this same
set oI attorneys to work together regularly on diIIerent cases. In addition
to the lawyers and judges, various other proIessionals, such as court
clerks, bailiIIs, agency caseworkers, mental health evaluators, and law
enIorcement oIIicers, may be ¨regulars¨ in Iamily court.
Repeat player dynamics have an enormous impact upon the culture oI
Iamily courts. People typically seek to resist change, keep the calm, and
not rock the proverbial boat.
95
Applied in a legal milieu, the repeat play-
ers employed in a particular courthouse usually develop and adhere to
customary routines and procedures when executing their daily job respon-
sibilities. This oIten results in the Iormation oI highly cohesive insider
groups, and such players may not be keen on having outsiders disrupting
the daily work routine.
96
When looking at attorneys through the lens oI
groupthink theory, an attorney`s desire Ior cohesion, group acceptance, or
avoiding conIrontation even in an adversarial setting, is sometimes strong
enough to trump loyalty and proIessional obligations to his client. Thus,
lawyers` zealous advocacy may be compromised by groupthink-like deci-
sion making.
Without question, there are some beneIits to being a repeat player,
such as gaining expertise and Iamiliarity with the Iorum while increasing
one`s work eIIiciency in the process.
97
UnIortunately, the dynamics
created between the interactions oI repeat players can also generate capri-
cious results, such as when a judge or opposing counsel makes decisions
on one case based upon the outcome oI earlier cases presented that day.
98
Many Iamily court judges nationwide play a direct role in determining
who will become a repeat player in Iamily court proceedings. In many
95. Spinak, Reforming Family Cour/, supra note 91, at 22 (¨Our emotional attachment to ideas is
a central component to resisting change. . . . [T]his emotional attachment, compounded by a public
commitment to a particular idea, is among the key elements to resisting change.¨). For an insightIul
article about status quo bias in Iamily law cases, see Peggy Cooper Davis & Gautam Barua, Cus/odial
Choices for Children a/ Risk: Bias, Sequen/iali/y, and /he Law, 2 U. C,-. L. S',. R392(8%&0)139
(1995).
96. See, e.g., N%6(900- )8 %0., T)236 3* J978-'), supra note 6, at 125-26 (describing some
criminal courts in which institutional players emphasize ¨going along and getting along . . . [and] not
rocking the boat¨ while other courts expect a certain level oI conIlict and accept that ¨cohesiveness
and congeniality [are] neither synonymous nor inevitable¨).
97. See Galanter, Why /he ¨Haves' Come Ou/ Ahead, supra note 94, at 98-104 (discussing the
various advantages oI the repeat player).
98. See, e.g., JenniIer Earl, The Process Is /he Punishmen/: Thir/y Years La/er, 33 L%;& S3'.
I259-6=737, 743-44 (2008) (¨[I]I a prosecutor has 'played hardball` with a deIense attorney on earli-
er cases in the day, the prosecutor may be more lenient later in the day, net oI other Iactors. Con-
versely, iI a prosecutor Ieels that earlier cases squeaked by too easily, a deIendant later in the day may
Iace harsher plea oIIerings, net oI other Iactors.¨). Furthermore, it cannot be overlooked that ¨how
and what a lawyer argues in one case, or whether a lawyer raises a controversial policy concern, may
aIIect all Iuture cases.¨ Breger, supra note 83, at 24 & n.124.
74 Law & Psychology Review [Vol. 34
jurisdictions, attorneys Ior children are personally appointed by a judge or
a judge uses his discretion in appointing a lawyer Irom a court-approved
list to a particular case. Naturally, this discretion gives rise to a whole
host oI issues centered on the potential Ior attorneys to alter their behavior
or demeanor beIore a particular judge in an attempt to secure Iuture ap-
pointments. Alternatively, in some jurisdictions, judges appoint institu-
tional providers, such as a public deIender`s oIIice or a legal aid society,
which then assigns its own lawyers to each case. Thus, by undertaking
the roles oI Iact Iinder and sentencer and by appointing attorneys or insti-
tutions to represent parties in court cases, a judge can dramatically inIlu-
ence courtroom culture by unilateral action.
99
Repeat players are arguably prone to developing a group mentality and
subscribing to cohesive thinking aIter years in the same judicial system.
Experts who have studied the relationship between judges and lawyers
emphasize the ¨interdependence oI lawyers and judges in those courts and
the close working relationships¨ Iostered. Baum has observed that.
In themselves, the working relationships between lawyers and
judges make court regulars highly salient to judges. Further, reg-
ulars are the most proximate observers oI judges` work, which al-
so makes them a key source oI inIormation about that work. A
judge`s reputation in the legal community as a whole and in the
broader community is based largely on the judgments oI lawyers
who practice in the judge`s court . . . To the extent that [the law-
yers and judges] share certain values, their presence and interac-
tions with judges may sway judges toward support oI those values.
This inIluence might be easiest to discern in courts with narrow
jurisdiction.
100
Family court lawyers and judges are especially susceptible to this dy-
namic because oI Iamily court`s narrow jurisdiction and its high volume oI
repeat players.
101
This relationship can be beneIicial, on the one hand,
because lawyers and judges become experts in Iamily law and procedure,
99. A similar dynamic occurs in criminal law when a prosecutor is assigned to a particular judge
in court. For a deeper analysis oI these issues in the criminal arena, see R. Flowers, supra note 83.
Although repeat players and their resultant dynamics can be seen in many types oI trial courts, includ-
ing criminal, housing and others, the discussion oI the dynamics oI Iamily courts and the potential Ior
change can be extrapolated and adapted to various other court cultures. Similarly, the repeat player
eIIect relates to most legal Iields. labor law, criminal law, death penalty cases, securities cases, insur-
ance law, and housing law. See, e.g., Lisa B. Bingham, On Repea/ Players, Adhesive Con/rac/s, and
/he Use of S/a/is/ics in Judicial Review of Employmen/ Arbi/ra/ion Awards, 29 M'G)36+) L. R):.
223, 241 (1998).
100. B%91, supra note 43, at 99-100.
101. See id. at 100 (noting that ¨[t]his inIluence might be easiest to discern in courts with narrow
jurisdiction¨).
2010] Making Waves or Keeping the Calm? 75
however, on the other hand, the relationship can be problematic iI it shiIts
Irom being merely collegial to ¨symbiotic¨ or ¨enmeshed.¨
102
One might argue that opposing counsel and the judge hardly make a
cohesive decision making group since opposing counsel is responsible Ior
advocating Iavorable positions on behalI oI his client, while the judge
serves as an impartial Iact Iinder. However, this premise overlooks the
reality oI the cohesiveness developed while working day in and day out in
the same courthouse with the same institutional players and becoming a
member oI the ¨courtroom elite.¨
103
The ¨courtroom elite¨ in a Iamily
court child welIare case would be the caseworker, the attorney Ior the
county, the attorney Ior the child, the parents` attorneys, and the judge.
LeIt unchallenged, the inside players are at risk oIperhaps subconscious-
lypushing Ior settlements and docket eIIiciency at the expense oI jus-
tice.
104
Janis has acknowledged that members oI cohesive groups may
reap social rewards, such as ¨being in a pleasant 'clubby` atmosphere¨ or
¨gaining prestige Irom being a member oI an elite group.¨
105
Thus, a
lawyer`s inclination to concede and concur in certain matters may depend
on whether or not she values being part oI the insider group more than
obtaining the best possible result Ior each client.
ProIessor Deborah Rhode has examined the practice oI sacriIicing
client interests Ior the sake oI maintaining collegiality in the courtroom.
She summarizes the problem as Iollows.
Inadequate representation oI client interests is . . . common where
lawyers place priority on maintaining good relationships with oth-
er members oI their community or participants in the legal
process. II zealous pursuit oI any single matter will antagonize
individuals whose continuing cooperation or client reIerrals is im-
portant, attorneys may adjust their partisanship accordingly. For
example, lawyers in surveyed consumer protection cases have oI-
ten accommodated business opponents' concerns rather than max-
imized client objectives. Practitioners in small towns have simi-
larly reported Ioregoing strategies that would generate ill will
among opposing lawyers and established interests. Criminal de-
Iense attorneys have sometimes Iound that retaining the good will
102. See R. Flowers, supra note 83, at 270-73 (describing the problems oI ¨too close oI a relation-
ship¨ between the judge, deIense attorney, and prosecutor in a criminal context), Donald G. GiIIord,
A Con/ex/-Based Theory of S/ra/egy Selec/ion in Legal Nego/ia/ion, 46 O,-3 S8. L.J. 43, 77 (1985)
(describing the symbiotic relationship that develops between judges and attorneys in a repeat player,
high-caseload environment), see also Shink, supra note 77, at 39, 40 (describing the conIlict oI inter-
est Iaced by guardians ad li/em who seek to zealously advocate Ior children but who must also main-
tain Iavor with the judge and opposing attorney).
103. See N%6(900-, T,)C39686331E0-8), supra note 85, at 67-78.
104. Id. at 69-71.
105. J%2-7, G63948,-2/2()(., supra note 17.
76 Law & Psychology Review [Vol. 34
oI prosecutors and trial judges is more important than securing the
best outcome Ior a particular client. There are, to be sure, limits
on how Iar a lawyer can compromise Iiduciary obligations and still
maintain collegial respect. But there are also limits on what attor-
neys can do without jeopardizing their own workplace relation-
ships and reIerral networks.
106
In the context oI Iamily court, the regular lawyers in the courthouse
are sometimes prone to Iorego certain strategic stances to maintain collegi-
al respect and goodwill with opposing counselors and judges. Lawyers
working day in and day out in the Iamily court system oIten become very
risk averse, preIerring ¨not to make any waves¨ and instead attempting to
¨keep the calm.¨
107
In essence, these attorneys Ieel pressure to avoid be-
ing branded as ¨overly zealous¨ or ¨bad team players¨ which, in turn,
may lead them to pursue less aggressive legal tactics.
Jury trials are rarely seen, and are oIten not even permitted, in Iamily
court cases.
108
This results in lawyers arguing cases beIore the same
judges day aIter day instead oI trying cases beIore diIIerent sets oI jurors.
Thus, when a judge sends a message, stated or implied, that a case should
be settled, the pressure on the repeat lawyer to comply is intense.
109
Add-
ing to this dynamic, the judges in Iamily court may encourage swiIt reso-
lution oI a case through settlement or alternative dispute resolution even
when a trial may produce a Iairer result.
110
Repeat lawyers may Iight less vigorously Ior each client iI they believe
that subsequent clients could be harmed by vigorous advocacy that alie-
nates opposing counselors, judges, or both. Indeed, lawyers who Ire-
quently make evidentiary objections and due process arguments in Iamily
court proceedings are Iar too oIten mocked or chided as they are inIormed
¨things just aren`t done that way around here.¨
111
To an observer, this
may raise concerns about the objectivity oI the bench and the loyalties oI
lawyers to their clients.
112
106. Deborah L. Rhode, Ins/i/u/ionalizing E/hics, 44 C%7)W. R)7. L. R):. 665, 681-82 (1994).
107. See Breger, supra note 83, at 24 (¨The inIlux oI many repeat players creates an atmosphere
and culture in the Family Court that may contribute to a predetermined mindset and myopic decision
making rather than to a Iresh and objective approach to new cases.¨), Neck & Moorhead, supra note
26, at 537-57.
108. See Breger, supra note 83 (describing the history and modern-day disIavor oI juries in Iamily
court proceedings, but advocating Ior implementation in Iamily violence proceedings).
109. See id.
110. See, e.g., discussion supra note 91.
111. Sinden, supra note 2, at 352. ¨Familiarity and collegiality can become a cliquishness in
which newcomers and outsiders Ieel an intense pressure to conIorm to established rules oI behavior in
this 'microsocial` setting.¨ Id., see also 3 C,-0(6)2%2( Y398, -2 A1)6-'%, 1933-1973, at 1437-
65 (Robert H. Bremner et al. eds., 1974), Guggenheim, Divided Loyal/ies, supra note 2.
112. See Guggenheim, Divided Loyal/ies, supra note 2, at 571-75. For an interesting analysis oI
these issues when lawyers represent groups oI clients, see Stephen Ellmann, Clien/-Cen/eredness
2010] Making Waves or Keeping the Calm? 77
To accurately evaluate Iamily court culture, one must account Ior the
interplay among all oI the attorneys in a case as well as their interactions
with other courthouse players, including the particular judge on a case,
other judges in the courthouse, clerks, court oIIicers, administrators and
the parties to the cases who bring their own perceptions and, perhaps,
stereotypical misconceptions about the inner workings oI the courthouse.
Case proceedings do not occur in a vacuum. The cases and the Iacts
therein are discussed in the hallways, in the attorney`s room, in the clerk`s
oIIice, and in chambers. This talk behind the scenes is perhaps due to the
stress oI handling so many emotionally-laden cases, but ultimately may
cause cases or parties to become categorized or stereotyped.
113
Sinden partially attributes the culture oI Iamily court to the extreme
specialization oI lawyers and other institutional players in the Iield oI
Iamily law.
114
Those Iamiliar with Iamily court would be hard-pressed to
disagree with Sinden that the cumulative eIIect oI these Iactors results in.
[A] ¨clubby¨ atmosphere, in which all oI the individuals in the
courthouseIrom the lawyers and social workers to the judges,
their courtroom deputies, stenographers and clerkshave well-
established relationships and a kind oI collegiality that comes
Irom daily contact. This atmosphere Iosters the development oI a
set oI unwritten rules and shared expectations that govern the ex-
pected and accepted behavior oI players in the system.
115
This type oI culture can Iorm the basis Ior the second antecedent oI group-
think. highly cohesive groups.
Mul/iplied: Individual Au/onomy and Collec/ive Mobiliza/ion in Public In/eres/ Lawyers' Represen/a-
/ion of Groups, 78 V%. L. R):. 1103 (1992) and Martha Matthews, Ten Thousand Tiny Clien/s: The
E/hical Du/y of Represen/a/ion in Children's Class Ac/ion Cases, 64 F36(,%1L. R):. 1435 (1996).
113. Repeat lawyers in Iamily court naturally begin to bond together as they oIten identiIy them-
selves as ¨Iront line¨ attorneys working ¨in the trenches¨ together. These attorneys have too many
cases, too little time, and too much trauma and tragedy that they witness on any given day. Thus,
collegiality amongst Iront line attorneys, at times, can be a true stress reliever and emotional savior.
However, collegiality can go too Iar and become stiIling and troublesome when it encourages stereo-
typing and debasing banter about cases and the parties to those cases. Joking, laughter, and chitchat
among repeat lawyers serve a constructive Iunction by letting lawyers ¨blow oII some steam,¨ yet
when this is done in Iront oI parties, they may perceive it as minimizing the import oI their cases and
Ieel disempowered. And while the lawyer-to-lawyer relationship is obviously diIIerent than the law-
yer-to-judge relationship, it is hardly distinguishable Irom the point oI view oI the parties who witness
the ¨courtroom elite¨ Iunctioning as a cohesive unit. OIten, the ¨law in action¨ does not correspond
to the law on the books, especially when the laws are Iavorable to the ¨have-nots.¨ Marc Galanter,
Missed Oppor/uni/ies: The Use and Non-Use of Law Favourable /o Un/ouchables and O/her Specially
Vulnerable Groups, in L%; %2( S3'-%0 C,%2+). I2(3-A1)6-'%2 R)*0)'8-327 183 (Robert F.
Meagher ed., 1988) [hereinaIter Galanter, Missed Oppor/uni/ies].
114. See Sinden, supra note 2, at 352.
115. Id.
78 Law & Psychology Review [Vol. 34
3. The Emo/ionally Charged Subjec/ Ma//er in Child Pro/ec/ive Pro-
ceedings as /he Third An/eceden/ of Group/hink: Provoca/ive Si/ua-
/ional Con/ex/
Family courts routinely respond to crisis situations in child protective
cases. The lawyers, staII members, and judges in Iamily court are bound
by a common thread that everyone must quickly assess and resolve Iamily
trauma and crises every day. EIIective resolution oI these crises may re-
quire institutional players to exercise their collective judgment in deciding
on the best course oI action. In turn, the collective judgment oI the group
may sway individuals` decisions and judgment.
Furthermore, Iamily court lawyers and judges are oIten deeply aI-
Iected by the nature oI the cases they are called upon to handle.
116
At
times, these institutional players may be susceptible to secondary traumatic
stress disorder,
117
¨vicarious traumatization,¨ or ¨compassion Iatigue.¨
118
These terms describe the emotional impact oI highly volatile, crisis-driven
cases on the proIessionals called to work on them.
This emotional impact can drain Iamily court judges, social workers,
and lawyers when they must manage daunting caseloads Iraught with both
complicated emotional and legal issues on a daily basis.
119
As a result,
some oI these proIessionals may be less jarred by stories oI violence, child
neglect, or criminal activity aIter repeatedly listening to these stories.
120
Additionally, this causes many proIessionals to become emotionally de-
tached Irom their work. Dutton and Rubinstein have examined this phe-
nomenon and Iound that.
116. This type oI reaction is hardly unique to Iamily court proIessionals. See Charles R. Figley,
Compassion Fa/igue As Secondary Trauma/ic S/ress Disorder: An Overview, in C314%77-32
F%8-+9). C34-2+ ;-8, S)'32(%6= T6%91%8-' S86)77 D-736()6 -2 T,37) W,3 T6)%8 8,)
T6%91%8->)( 1 (Charles R. Figley ed., 1995), see also Barbara Glesner Fines & Cathy Madsen,
Caring Too Li//le, Caring Too Much: Compe/ence and /he Family Law A//orney, 75 UMKC L. R):.
965 (2007).
117. See generally Figley, supra note 116, see also Marcia Coyle, Burnou/, S/ress Plague Immi-
gra/ion Judges, N%8`0L.J., July 13, 2009, at 4 (showing that immigration judges dealing with emo-
tional issues have similar reactions).
118. See generally Figley, supra note 116, J)%2K3,P)8)67, R)46)7)28-2+C,-0(6)2-2C,-0(
P638)'8-:) P63'))(-2+7 25-69 (2d ed. 2001), J%1)7 P8%')/, B%88)6)( W31)2 -2 8,)
C39686331. T,)P3;)63*J9(-'-%0R)74327)7(1999). See also Anne H. Geraghty & Wallace J.
Mlyniec, Unified Family Cour/s: Tempering En/husiasm wi/h Cau/ion, 40 F%1. C8. R):. 435 (2002).
119. See D39+0%7 E. A&6%17 & S%6%, H. R%1)=, C,-0(6)2 %2( 8,) L%;. D3'86-2),
P30-'=,%2(P6%'8-')12 (2003), P8%')/, supra note 118, at 126-27.
120. See R3&)68 E. K))832, J9(+-2+3 (1990), P8%')/, supra note 118, at 114, 126-27 (noting
the intense emotional burden oI empathizing with victims oI domestic violence and the risk that judges
dealing with that burden might turn against the victims), Breger, supra note 83, at 22 (¨A backdrop oI
jaded skepticism may permeate the courtroom . . . .¨), see also G9++)2,)-1, C,-0(6)2`7R-+,87,
supra note 87, at 574-75.
2010] Making Waves or Keeping the Calm? 79
Distancing Irom the client may involve judging, labeling, or pa-
thologizing the traumatic reaction . . . which creates the illusion
that the client`s reaction to the traumatic event is in some way diI-
Ierent Irom that oI a ¨normal¨ individual. Other Iorms oI de-
tachment include adopting a personal and emotional distance Irom
the client . . . Attorneys may be particularly vulnerable to this ap-
proach since their training may not typically Iocus on establishing
emotional contacts with their clients or on dealing with their own
emotional reactions to clients.
121
The culture oI crisis that so pervades Iamily courts across the nation con-
clusively establishes the third antecedent oI groupthink, the existence oI a
provocative, crisis-laden situational context.
C. Analyzing How /he Overarching Symp/oms of Group/hink In/ersec/
wi/h Family Cour/ Ins/i/u/ional Cul/ure
¨[N]ewcomers and ou/siders feel an in/ense pressure /o conform /o es/ab-
lished rules of behavior in /his 'microsocial' se//ing.'
122
Amy Sinden
As addressed above, the culture oI Iamily court oIten mirrors the ante-
cedents oI groupthink. However, the convergence oI these antecedents
does not necessarily result in groupthink. The presence oI one or more
symptoms should be observed beIore such a conclusion can be reached.
That said, this article will now analyze whether Iamily court institutional
culture exhibits any oI the overarching symptoms oI groupthink.
123
1. Overes/ima/ion of Insular Group's Inheren/ Morali/y Applied in
Family Cour/ Se//ing
Many Iamily court institutional players may bring a sense oI inherent
morality to their work. Experienced judges, caseworkers, and lawyers
who have worked on child welIare and child protective cases Ior years
have had to resolve heart-wrenching instances oI abuse and neglect. AIter
years oI handling this type oI work, it is not uncommon Ior those proIes-
sionals to believe that they know what is best Ior children and Iamilies.
Moreover, many jurisdictions nationwide subscribe to the view that the
121. Mary Ann Dutton & Francine L. Rubinstein, Working wi/h People wi/h PTSD: Research
Implica/ions, in C314%77-32F%8-+9), supra note 116, at 82, 87.
122. Sinden, supra note 2, at 8.
123. See supra text accompanying notes 44-50 Ior a discussion oI the overarching symptoms oI
groupthink.
80 Law & Psychology Review [Vol. 34
role oI a child`s attorney is to determine ¨the best interests¨ oI the child,
even though the child and other interested parties may have a better under-
standing oI the child`s needs and wishes.
124
Lawyers practicing in those
jurisdictions can be especially vulnerable to Ialling into the mindset that
they truly know what is best Ior child clients.
125
UnIortunately this may
result in proIessionals becoming paternalistic and believing their own mo-
rality is higher than that oI others. In other words, iI these lawyers and
judges buy into the philosophy that they know what is best Ior children
and Iamilies without looking at particularized Iacts and speaking to their
child clients to understand their needs and desires, they risk taking actions
that may not actually be in the child`s best interests.
Groupthink is applicable when ¨there is a sense oI inherent morality¨
by the group and group ¨members` strivings Ior unanimity override their
motivation to realistically appraise alternative courses oI action.
126
Illu-
stratively, in Iamily court child protective proceedings, iI the internalized
group norm amongst judges and lawyers is that young children do not
have valid opinions and do not need to be consulted prior to a decision,
due to their immaturity, there will be pressure on group members not to
waste time by interviewing young children. Thus, iI this becomes the
salient norm, group decision making can be negatively impacted.
127
2. Close-Minded, S/ereo/yped Images of Ou/groups Applied in Family
Cour/ Se//ing
Family court institutional players may develop into close-minded, in-
sular groups that embrace stereotypes about outsiders. This insularity can
maniIest itselI as a suspicion oI outsiders such as new attorneys in the
area, attorneys who do not practice in the courthouse as much, or even
court administration oIIicials trying to revamp internal operations.
128
These people may be viewed as overly enthusiastic reIormers who seek to
change how things are done in the courthouse. Group insularity becomes
even stronger when members begin to make unIounded judgments about
outsiders.
Alternatively, the parties involved in Iamily court proceedings may be
viewed as outsiders by insular courthouse groups. This perception may be
Iurther exacerbated by the already existing power imbalance held by Iami-
124. See generally N%8-32%0S96:)=3*S8%8)L%;7 (Richard A. Leiter ed., 6th ed. 2008).
125. For a more in-depth look at this issue, see Melissa L. Breger, Agains/ /he Dilu/ion of a
Child's Voice in Cour/, 20 I2(. I28`0& C314. L. R):. 1 (2010).
126. J%2-7, G63948,-2/, supra note 10, at 9.
127. See Baron, supra note 26, at 33, see also J%2-7, G63948,-2/2()(., supra note 17, at 37,
Joan S. Meier, Domes/ic Violence, Child Cus/ody, and Child Pro/ec/ion: Unders/anding Judicial
Resis/ance and Imagining /he Solu/ions, 11 A1. U. J. G)2()6S3'. P30`=& L. 657, 696 (2003).
128. See, e.g., Nardulli, 'Insider' Jus/ice, supra note 59, at 387-88.
2010] Making Waves or Keeping the Calm? 81
ly court institutional players over parties in case proceedings. Negative
stereotypes and stigmas may be Iormed in the minds oI institutional play-
ers about the very people they should be helping. These stereotypes oper-
ate to disempower marginalized groups
129
the poor, persons oI color,
women and childrenwho do not always see themselves reIlected in the
bar and the bench, but who are disproportionately aIIected by the exis-
tence oI courtroom-insider group dynamics.
130
Additionally, it is not un-
common Ior lawyers or judges to compare current cases to previous cases.
This Iurther solidiIies the group dynamic because lawyers and judges start
to group together similar cases and develop stereotypes about them and the
parties involved.
131
Members oI these insular courthouse groups may not immediately
Iorm stereotypes about outsiders, but group pressure to conIorm may ul-
timately change their views. Sinden describes the problem as individuals
Ieeling intense pressure to conIorm to the ¨expected and accepted behavior
oI players in the system.¨
132
Janis Iurther Iinds that individuals who might
not have extreme views oI their own, or at the outset oI decision making,
ultimately allow group dynamics to override moderation and quickly con-
Iorm to the more extreme position oI the group.
133
In Iact, Janis describes
this symptom oI groupthink as the ¨members` persistence in conveying to
each other the cliche and oversimpliIied images oI political enemies embo-
died in long-standing ideological stereotypes.¨
134
3. Pressures Toward Uniformi/y Applied in Family Cour/ Se//ing
Groups have a predilection to achieve uniIormity, which is oIten em-
bedded in members` subconscious. This desire Ior uniIormity is speciIi-
129. See, e.g., M%7,%;& H%6*78, supra note 57, at 26, see also Breger, supra note 83, at 2-3,
Tamar M. Meekins, Risky Business: Criminal Special/y Cour/s and /he E/hical Obliga/ions of /he
Zealous Criminal Defender, 12 B)6/)0)=J. C6-1. L. 75, 76-78 (2007), Sinden, supra note 2, at 377-
78.
130. For example, a party entering the clubby environment oI Iamily court and Ieeling ¨particular-
ly vulnerable and insecure¨ may be ¨especially eager to be accepted and viewed as normal and res-
pectable.¨ Sinden, supra note 2, at 352. Such a client ¨may be particularly sensitive to any cues she
receives Irom proIessionals as to how she should act to Iit in with the norms oI this microsocial set-
ting.¨ Id., see also A978-2 S%6%8 & S89%68 S',)-2+30(, T,) C90896%0 L-:)7 3* C%97)
L%;=)673-5 (Austin Sarat & Stuart Scheingold eds., 2008).
131. This stereotyping can perpetuate a type oI unethical lawyering that can be jarring to incoming
Iamily law attorneys. As a clinical proIessor who has taught and practiced in various states, I am
always reminded oI this disconnect as the students are shocked at the apparent ¨go with the Ilow¨
culture oI many Iamily court courtrooms. See Mae C. Quinn, Reconcep/ualizing Compe/ence: An
Appeal, 66 W%7,. & L))L. R):. 259, 295-96 (2009) (articulating this concept as it relates to paterna-
listic Iorms oI lawyering in the criminal deIense arena).
132. Sinden, supra note 2, at 352.
133. See J%2-7, G63948,-2/2()(., supra note 17, at 11-12. For a comprehensive discussion oI
group polarization phenomenon, see Cass R. Sunstein, Delibera/ive Trouble' Why Groups Go /o
Ex/remes, 110 Y%0)L.J. 71, 75 (2000).
134. J%2-7, G63948,-2/2()(., supra note 17, at 37.
82 Law & Psychology Review [Vol. 34
cally maniIested in the context oI a leader who exerts subtle pressure on
the group to achieve consensus. In the Iamily court context, this leader is
the judge.
Experienced lawyers oIten know what a particular judge preIers in
certain cases, even iI nothing is explicitly stated. This can be particularly
true in Iamily court due to the repeat players involved. Further, there are
times when judges are, in Iact, quite explicit that they are seeking global
resolution on a case. In some instances, judges have made it known to all
parties how they are leaning, or even how they intend to rule, beIore evi-
dence is even presented. Hence, there too oIten exists subtle or overt
pressure on the attorneys to settle the case. Finally, lawyers may even
Ieel pressure Irom opposing counsel to settle a case in order to secure co-
operation in Iuture cases.
135
It is again worth stating that there can be true beneIits in achieving a
mutually agreeable outcome, especially when resolving a case short oI
litigation is in the best interests oI the children and Iamilies involved. Yet,
when cases are settled due to unethical or sloppy lawyering or the desire to
merely please the judge or opposing counsel, the goal oI uniIormity at all
costs should be reexamined.
In all, this conIluence oI Iactors may contribute to a court culture
which discourages intelligent discourse, innovation, zealous advocacy,
client-centeredness, and loyalty. Intrinsically, it is human nature to want
¨to get along to go along¨ and ¨go with the Ilow.¨ To that end, lawyers
can shrewdly play the game oI keeping the calm and not rocking the boat
with opposing counsel, caseworkers, or judges in the hopes oI getting bet-
ter resolutions in Iuture cases. However, the desire Ior uniIormity at all
costs may nevertheless harm client interests, keep courtroom dialogue
stagnant, and create the potential Ior groupthink.
135. See Nardulli, 'Insider' Jus/ice, supra note 59 (presenting a study oI criminal courts which
Iound that deIense attorney ¨insiders¨ are more likely to compromise earlier in case proceedings and
ensure a pleasant working environment with other courthouse insiders than other groups).
2010] Making Waves or Keeping the Calm? 83
IV. N361%8-:)A2%0=7-7%2(I()%7*36R)*361T,639+,8,)
A440-'%8-323*G63948,-2/
¨Never/heless, ins/ead of s/riving for comfor/able feelings of securi/y, /hey
resis/ed /he /emp/a/ion /o develop a se/ of shared beliefs /ha/ migh/ have
reassured /hem /ha/ /heir side was bound /o win and /ha/ /he evil enemy
would give in . . . .'
136
Irving Janis
So Iar, this article has described the groupthink antecedents and symp-
toms that are too oIten observed in Iamily court and contribute to the
court`s unique organizational culture and, at times, Ilawed decision mak-
ing. Building upon this premise, the Iinal section oI this article will intro-
duce ideas that may help implement reinvigorated productive norms in
Iamily court culture. My normative analysis raises two important ques-
tions. Is it ever a good thing Ior a courthouse to have an institutional cul-
ture where players operate in a group mentality? II not, what ought the
culture to be?
Certainly, there are many beneIits to Iorming courthouse groups.
Groups allow those who specialize in a particular type oI law to exchange
ideas and address trends within that domain. Further, those on the Iront
lines day aIter day need to develop a healthy outlet through their interac-
tions with each other to relieve the daily stresses and vicarious trauma
endured. Nonetheless, iI these groups are resistant to newcomers and are
close-minded, the climate can be more harmIul than advantageous to par-
ties appearing beIore the court. Moreover, institutional players should be
mindIul oI parties` perceptions oI the interactions among courthouse group
members. What must it look like Irom the party`s perspective when op-
posing counsel and the judge engage in jovial banter prior to a court pro-
ceeding that will determine whether the party`s child will be placed in a
Ioster home? How must it appear to the party who observes this ¨cozy,
intimate relationship¨ which may occur despite eroding the party`s due
process rights?
137
Even iI a lawyer`s loyalty is to his client, does the client
always recognize that this is so?
The positive attributes oI a collegial courthouse culture may include.
(1) allowing Ior true expertise in a particular Iield oI law, encouraging
136. J%2-7, G63948,-2/ 2()(., supra note 17, at 158 (describing a group that did not Iall prey
to groupthink).
137. See Meekins, supra note 129, at 91-92 (describing the compromising oI zealous advocacy in
the collaborative atmosphere oI specialty criminal courts), see also Breger, supra note 83, at 22-24
(describing the perception oI institutional bias in Iamily courts), Guggenheim, Divided Loyal/ies, supra
note 2 (describing the tactical compromises criminal deIense attorneys regularly make to the detriment
oI individual clients).
84 Law & Psychology Review [Vol. 34
specialization, and creating economies oI scale,
138
(2) permitting parties to
obtain a more Iavorable result in particular cases iI the lawyer shares a
closeness with the judge or opposing counsel,
139
(3) preventing some par-
ties Irom being harmed because their lawyers will know not to make
waves which might trigger backlash Irom the judge or opposing coun-
sel,
140
(4) providing an opportunity Ior judges and attorneys to bond,
141
and (5) moving along cases expeditiously, iI all players work together to
settle a matter instead oI going to trial.
142
Thus, collegiality among group
members can promote work harmony, eIIiciency, and economies oI scale.
In discussing Iamily court institutional culture, it is important to keep in
mind that collegiality is not the problem. The problem is when collegiality
creates a /endency Ior institutional players to engage in groupthink and
make Iaulty decisions.
How can positive change be made to Iamily court institutional culture?
Some general ideas Ior injecting Iresh dialogue and instituting reIorm in-
clude. maintaining some type oI institutional accountability and limiting
the ability oI judges to appoint particular attorneys on cases, providing
education about groupthink pitIalls, and giving all parties to court proceed-
ings the choice to opt out oI settlement negotiations, with no questions
asked, and go to trial.
143
These ideas are somewhat overlapping and inter-
related because in order to change the behavior oI repeat players, they
must be held accountable Ior their actions, and players will not be able to
do this unless they are properly educated about the perils oI groupthink.
Despite proposals to reIorm Iamily court culture, change oIten comes
slowly to any organization, and Iamily court is no exception. There are
many reasons why this is so, but in general, institutions are highly resis-
tant to change.
144
This is particularly true when an institution`s principles
are predicated upon ¨seemingly neutral belieIs and corresponding practic-
es [that] have come to be taken Ior granted as legitimate.¨
145
As applied
in the Iamily court setting, there are some belieIs and practices that are
viewed by many institutional players as neutral and legitimate, such as the
belieI that settling cases is always better than going to trial. These genera-
138. See Galanter, Why /he ¨Haves' Come Ou/ Ahead, supra note 94, at 4, see also Bingham,
supra note 99.
139. See Galanter, Why /he ¨Haves' Come Ou/ Ahead, supra note 94, at 3, 4 n.9.
140. See id. at 9-10 & n.21 (describing the repeat players` superior knowledge oI which rules can
be bent and which must be strictly Iollowed).
141. See id. at 4.
142. For an example oI a court that has run smoothly due to rapport among attorneys and judges,
see T,) F92(*36 M3()62C39687, R)436832N%77%9C3928=F%1-0= C39687 16 (Jan. 1991)
(report on Iile in the SchaIIer Law Library, Albany Law School).
143. See J%2-7, G63948,-2/2()(., supra note 17, at 262-67.
144. See Debra Meyerson & Megan Tompkins, Tempered Radicals As Ins/i/u/ional Change
Agen/s: The Case of Advancing Gender Equi/y a/ The Universi/y of Michigan, 30 H%6:%6( J.L. &
G)2()6303, 305 (2007).
145. Id. at 306-07.
2010] Making Waves or Keeping the Calm? 85
lizations can adversely aIIect parties` rights iI the lawyers and judges in-
volved do not take a step back and look at the speciIic Iacts oI each indi-
vidual case and make a concerted eIIort to avoid Ialling prey to shortcuts
and ultimately groupthink.
Several steps may be taken to alter Iamily court culture to prevent
groupthink Irom developing in the courthouse and allow a Iree Ilow oI
ideas between institutional players. Janis proposed some ideas Ior increas-
ing intragroup dialogue when he Iirst updated and expanded the theory.
His ideas include the leader encouraging critical evaluation oI his decision
making, striving to remain impartial, and establishing independent evalua-
tion groups under diIIerent leaders.
146
The method which might apply best
in the Iamily court setting is Ior the leader (i.e., the judge) to strive to
maintain impartiality. This can be accomplished iI the judge reIrains Irom
stating preIerences and expectations at the start, limits herselI to neutral,
unbiased statements, and abstains Irom advocating speciIic proposals she
would like to see adopted.
147
Paul 't Hart has proposed additional ideas Ior increasing intragroup di-
alogue and discouraging groupthink that supplement Janis`s proposals.
148
SpeciIically, 't Hart suggests that groups should. (1) eliminate group isola-
tion and establish institutional accountability and control,
149
(2) protect
whistleblowers,
150
(3) allow motivated dissenters to say ¨no¨ to ideas
151
and (4) manipulate decisional rules and their acceptance.
152
These ideas
are more compatible with the type oI decision making seen in Iamily
court, and thus, they merit discussion and adoption with slight modiIica-
tions. It should also be noted that, although 't Hart believes that some oI
Janis`s solutions are beneIicial in theory, they can be diIIicult to imple-
ment in actual organizations and may result in substantial time and mone-
tary costs.
153
Building upon the ideas oI Janis and 't Hart, this discussion will Iirst
address institutional accountability and control. Next, the discussion will
address a modiIied version oI 't Hart`s third suggestion which proposes
enacting a viable option Ior attorneys and parties to opt out oI settlement
negotiations at any time with no questions asked. Finally, institutional
players, especially repeat judges and attorneys, should be educated about
146. See J%2-7, G63948,-2/2()(., supra note 17, at 262-65.
147. See id.
148. See '8H%68, supra note 26, at 290-94.
149. See id. at 290.
150. See id. at 291.
151. See id. at 292.
152. See id. at 293.
153. See id. at 289.
86 Law & Psychology Review [Vol. 34
the dangers oI groupthink to the decision making process and parties`
rights.
154
A. Breaking Through Group Isola/ion: Ins/i/u/ional Accoun/abili/y and
Appoin/men/ of Lawyers
Institutional accountability and control may potentially be less oI an is-
sue with attorneys who work Ior a public deIender`s oIIice or legal aid
society than attorneys who are solo practitioners or work Ior law Iirms.
Institutional providers oIten have established internal checks and balances
which provides some level oI accountability Ior attorneys. This can Iacili-
tate better decision making because these attorneys know that their actions
in court will be scrutinized by their employers.
155
However, it is also
common Ior Iamily court attorneys to be solo practitioners or work in
small Iirms. This, in turn, raises other issues about how priorities and
accountability may diIIer Irom attorneys who work Ior larger organiza-
tions and are presumably accountable to a supervising partner or asso-
ciate.
156
All attorneys are naturally held accountable in that there is always the
threat oI a malpractice lawsuit by their clients or an appeal based upon
ineIIective assistance oI counsel. Lawyers are expected to zealously advo-
cate Ior their clients and exhibit loyalty to them at all times. In Iamily
court cases, however, an attorney`s accountability to his client may be
compromised iI the client is a young child who is unaware oI his right to
pursue an ineIIective assistance oI counsel claim.
Judges and opposing counsel can also provide accountability to law-
yers by reporting the unsavory actions oI an attorney to the state ethics
154. See id. at 293.
155. See J%2-7, G63948,-2/2()(., supra note 17, at 266. On the other hand, one could argue
that an institutional provider is more prone to groupthink because an institutional provider is a group
oI lawyers who work together and oIten hold strong belieIs about certain ways oI thinking and practic-
ing law.
156. Solo practitioners oIten do not have the luxury oI paralegals and investigators, yet they must
take on high caseloads to ensure their survival. According to the New York County Lawyers` Associ-
ation.
Data obtained Irom the Assigned Counsel Plan reveals, Ior example, that last year 41 attor-
neys each handled 150 or more Ielony cases. Such caseloads exceed nationally-recognized
standards Ior representation oI indigent deIendants by attorneys in public deIender agencies
whounlike most assigned counselhave the beneIit oI paralegals, investigators, and sup-
port staII to assist them.
New York County Lawyers` Association, Executive Summary oI Motion Ior Preliminary Injunction,
Re. New York County Lawyers` Association v. State oI New York (Index No. 102987/00) (May 31,
2001), http.//www.nycla.org/publications/mpiexecutivesummary.html#N_1_. Solo practitioners also
do not have the beneIit oI enjoying camaraderie with other attorneys at the oIIice to relieve the stress
oI dealing with daily crisis situations in the courthouse.
2010] Making Waves or Keeping the Calm? 87
committee. In practice, though, members oI the bar may be hesitant to
report other attorneys absent evidence oI serious ethical breaches. More-
over, the eIIects oI groupthink are subtle and unlikely to be noticed.
Thus, some type oI Iormal institutional accountability may be the Iirst step
in preventing groupthink. This could be coupled with an eIIort to relieve
judges oI the responsibility oI appointing attorneys in Iamily law cases, a
process that has raised concerns about judges appointing attorneys whose
views are closely aligned with their own views. In Iact, a working group
convened to address the representation oI children in the judicial system
and concluded that relieving judges oI this responsibility would be a step
in the right direction.
157
This would certainly reduce the appearance oI
impropriety and eliminate many conIlicts oI interest that could potentially
arise. Ultimately, some or all oI these reIorms should be implemented to
maintain accountability, Ior without accountability, real change will not be
possible.
B. Pro/ec/ing Whis/leblowers and Dissen/ers' Righ/ /o Say ¨No' by Offer-
ing Op/ Ou/ Provisions for Nego/ia/ions
Another method Ior counteracting groupthink is to provide a way Ior
litigants themselves to challenge the institutional players who might Iall
prey to groupthink. One suggestion is that all parties to a settlement
should be given the choice oI opting out oI the settlement process with no
questions asked and without recourse. This would release a judge`s
stronghold over parties and attorneys to work out a settlement and give
parties a saIety valve in case they Ieel disempowered by the process.
158
The parties and lawyers need to agree that iI at any point negotiations
break down and one party no longer wishes to negotiate, discussions will
cease and the court will be notiIied that settlement is not possible. To
operate eIIectively, the opt out provisions need to be exercisable without
the judge knowing who exercised the option. At no time should the judge
be told who wished to continue negotiating and who wished to go to trial.
As it stands now, it can be tempting Ior an attorney to utilize a breakdown
in negotiations to his client`s advantage. It is not uncommon to witness an
attorney tell a judge on the record that ¨My client was willing to nego-
157. See Proceedings of /he Conference on E/hical Issues in /he Legal Represen/a/ion of Children:
Repor/ of /he Working Group on /he Judicial Role, 64 F36(,%1L. R):. 1389, 1392 n.18 (1996) (The
working group noted that it was ¨particularly concerned about the unethical practices oI appointing
attorneys who already have unmanageably large caseloads, appointing attorneys who consistently
'rubber stamp` the department oI social services' or agency's recommendations, appointing attorneys
who, to maintain the judges' patronage, will not advocate zealously or 'rock the boat`, and the practice
oI reIusing to appoint attorneys who are likely to challenge policies and practices that negatively im-
pact children.¨).
158. See Grillo, supra note 91, at 1600-10 (discussing the dangers oI compelled mediation).
88 Law & Psychology Review [Vol. 34
tiate, but the other side would not agree.¨ This is done in the hopes that
the judge will be more willing to rule in Iavor oI the cooperative party
rather than the party who is trying to make waves. BeIore this proposal
can be implemented, though, repeat players should be educated about the
negative consequences oI groupthink, which Iorms the basis Ior the third
reIorm idea.
C. Educa/ing Repea/ Players Abou/ /he Dangers of Group/hink
Promoting education and awareness oI groupthink is necessary to insti-
tute reIorm proposals. Although there is always a risk that a person could
use limited inIormation about groupthink as a basis Ior abandoning group
discussions and making unilateral decisions to avoid groupthink pitIalls, it
is more important that institutional players are aware oI groupthink so that
they can consciously avoid Ialling prey to it.
159
Repeat players must be willing to embrace reIorm and avoid Ialling in-
to old routines iI education and reIorm proposals are to be eIIective. This
might require an inIlux oI new players to spur and advance change since
organizations are generally resistant to change.
160
Additionally, outsiders
should not be aIraid to make waves and challenge the status quo.
161
Moreover, positive change can become a reality iI insiders seek to include
outsiders` views in the decision making process.
162
Susan Carle believes
that.
[P]eople have to want to change the organizations oI which they
are a part. Processes need to be developed that will generate such
buy-in and allow institutional insiders to design eIIective solutions
tailored to particular circumstances. But attempts to make organi-
zations more inclusive through internally generated processes run
159. See J%2-7, G63948,-2/ 2( )(., supra note 17, at 275-76. Janis has raised thoughtIul and
ethical concerns about the ¨wrong¨ or exploitative type oI group using these theories to their advan-
tage, but he ultimately believes that ¨[i]mproving the quality oI decision-making by eliminating certain
sources oI error that prevent a group Irom achieving its goals can be expected to have good social
consequences Ior policy-making groups that have good goals.¨ See id. at 273-74.
160. N%6(900-)8%0., T)2363*J978-'), supra note 6, at 40-41 (¨Veteran members . . . act as
repositories oI collected experiences, observed relationships, and court lore . . . [which] provides
stability and continuity to the court`s activities. Although leaders and assistants come and go, the
court community`s traditions and norms change very slowly.¨).
161. See Bean, supra note 77, at 51-63 (arguing Ior opening Iamily courts to the public to eIIec-
tuate reIorm).
162. See Susan D. Carle, Progressive Lawyering in Poli/ically Depressing Times: Can New Models
for Ins/i/u/ional Self-Reform Achieve More Effec/ive S/ruc/ural Change', 30 H%6:%6(J.L. & G)2()6
323, 352 (2007).
2010] Making Waves or Keeping the Calm? 89
into the problem that the people already at the table do not
represent those who have been excluded.
163
II repeat players welcome new players, this may increase the chances oI
instituting successIul reIorm proposals and prevent institutional players
Irom Ialling into groupthink traps.
164
As addressed earlier, the temptation to avoid groupthink may result in
the belieI that it is best to abandon group dynamics altogether.
165
Since
the judge is typically the Iinal decision maker in Iamily court, it may seem
like this model is already in place, however, this view is too simplistic and
ignores the reality oI nuanced Iamily court dynamics. OIten, the judge is
not the sole decision maker but rather acts as a reIeree in cases or ¨rubber
stamps¨ settlement agreements. As such, judges who make eIIorts to
maintain impartiality and neutrality while encouraging open dialogue
among all courtroom players are more likely to avoid groupthink in their
courtrooms.
166
V. C32'097-32
ReIorming Iamily court institutional culture may seem unworkable and
challenging,
167
yet culture can be malleable, particularly iI all players are
open to reIorm and are cognizant oI the existing culture.
168
This article
demonstrates one way to analyze Iamily court institutional culture through
the lens oI another discipline, namely the social psychology theory oI
groupthink. We can then borrow Irom the groupthink theoretical con-
struct its suggested ways to try to counteract the drawbacks oI groupthink,
such as. breaking through group isolation and establishing institutional
accountability, providing parties with an anonymous opt out provision Ior
negotiations, and raising awareness about groupthink pitIalls. In sum, the
signiIicance oI this topic is threeIold. (1) iI the culture oI Iamily courts
remains stagnant, then innovation and meaningIul conversation Ior reIorm
is also stagnated, (2) iI the culture oI the Iamily courts remains resistant,
and even hostile, to outsiders and newcomers, then even more stagnation
occurs without allowing Ior Iresh thinking, and (3) most importantly, such
a culture is harmIul to litigantslitigants who are already marginalized in
163. Id.
164. For an excellent discussion oI how education can be utilized to inIorm prosecutors and judges
about the ¨costs to the system caused by intimate relationships between them,¨ see R. Flowers, supra
note 83, at 290. See also Galanter, Missed Oppor/uni/ies, supra note 113.
165. See J%2-7, G63948,-2/2()(., supra note 17, at 260.
166. See id. at 263.
167. See O78631)8%0., supra note 3, at 3-4.
168. See M%0'301G0%(;)00, O980-)67. T,)S836=3*S9'')77(2008).
90 Law & Psychology Review [Vol. 34
our societymost typically the impoverished, persons oI color, women
and children, and those in the midst oI trauma.
There are multiple parallels between groupthink and the prevalent cul-
ture that exists in many Iamily courts nationwide, and increasing know-
ledge about the dangers oI groupthink may help Iamily court institutional
players avoid its pitIalls. This article provides a theoretical Iramework to
inspire Iurther discussion and research about the nexus between group-
think and Iamily court institutional culture. HopeIully, these ideas will
help to revamp the stagnant, ¨no waves¨ culture that has been perpetuated
in Iamily courts Ior decades and serve as a catalyst Ior instituting meaning-
Iul court reIorms and protecting the rights oI Iamily court litigants.

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