At a recent Family Law Bench Bar Meeting, Family Division Judge Gregory G. Gordon gave a presentation on newly enacted Nevada District Court Rule 27 (ADKT 0619) regarding new informal trial procedures that are being rolled out by the court. According to Judge Gordon, the court’s mission is “to provide families and children safe, fair, timely, courteous and efficient access to justice.”  A significant trend impacting the court is “the overwhelming number of self-represented litigants navigating the family court process on their own.” He noted, “more than seventy percent (70%) of contested family law cases in Clark County involve two unrepresented parties. Litigants who navigate court trials on their own, also known as pro se litigants, find the rules and procedures complex and confusing.

Not only do many self-represented litigants have difficulty understanding and complying with the rules, but the judges presiding over these cases face the significant challenge of how to maintain neutrality when needing to assist self-represented litigants in presenting their cases. Many self-represented litigants flounder, unsure where to start, or how to present their positions. Judge Gordon suggested a solution to offer litigants the option of a simplified or informal trial format in divorce and child custody cases.

Prior to giving an overview of the informal trial process at the bench-bar with more than 100 lawyers, Judge Gordon pointed out that six other states are already using the informal trial process effectively.

He addressed the questions of: Why this? Why now? “We’re already doing this. We are already having to make changes in the courtroom to accommodate two unrepresented litigants.” He added, “Imagine the value that we create when I take the rules of a trial and put it on two pages and hand it to every litigant. Every litigant can now read the rules, understand the rules, They know what is going to happen in the courtroom. Imagine the confidence that brings to each one of those litigants. It is intended to cut down on the confusion that those who don’t have legal training face when they attempt to handle a trial on their own. Now they can participate with full knowledge of what is going to happen and they leave feeling that they understood the process.”

The informal trial process is opt-in only: both parties must agree to use this alternate format.  Although the process is designed to help those that cannot afford to have an attorney represent him or her in court, no person is required to forego their right to a traditional trial.

Attorneys in attendance at the bench-bar were responsive to the idea that informal trials will work very well with unbundled legal services model. Counsel can be retained to do the initial drafting of the pleadings. Counsel can appear at the preliminary hearings and help with discovery. When the attorney function ends under agreement, the case can be picked-up and get across the finish line with a process that facilitates self-represented litigants to get through trial. “The informal trial is a tool that judges can use in cases where there is not attorneys involved or when attorneys have limited involvement,” said Judge Gordon.

What is an Informal Family Law Trial?

• The parties speak under oath directly to the judge without objection or interruption.
• There is no direct or cross-examination.
• The judge asks all the questions to assist in developing the evidence required by any statute or rule.
• The other party (or lawyer, if present) may ask the court to inquire into other areas. The process is then repeated for the opposing side.
• Unless permitted by the judge, nonparty witnesses are limited to experts.
• All rules of evidence are relaxed. Any exhibits the parties offer are admitted, and the court decides what evidentiary weight they receive.
• The trial judge retains discretion to modify these procedures on a case-by-case basis as necessary to assure fairness.
• Before the trial begins, the judge is required to review the process with the parties and confirm their agreement.
• The judge applies the same substantive law as with a traditional trial. NRCP 16.2, 16.205, or 16.21 and all discovery rules still apply.
• Each party retains the same appeal rights as if using a traditional trial.

Before the trial begins the court will review the process with the litigants. The moving party will speak first. No interruptions or questions from the other side. The judge asks all the questions. The judge will ask the other side about the topics of questions they want the judge to ask.

Litigants will have the opportunity to tell their own story, in their own words uninterrupted. Attorneys can be involved to summarize issues at the beginning and the end. Attorneys may not interrupt, object or ask questions.

The Nevada Supreme Court approved Informal family law trials as a pilot program and the family division is expected to report back to the Nevada Supreme court in November of next year on the effectiveness.

The Legal Aid Center of Southern Nevada Family Law Self-help Center is located at family court and provides for access to documents and other information for self-represented litigants. “This will, I hope, promote confidence in the process,” said Stephanie Mc Donald with the Legal Aid Center, I absolutely think this will be a game changer across the state for improving access to justice for those who cannot afford legal representation in a divorce or child custody case.

The Family Law Self-Help Center also conducts classes for self-represented litigants on trial preparation. “For those litigants who have to come in to court by themselves, without counsel, this will certainly improve their experience and improve access to justice for all.”

“We need a system that self-represented litigants can understand and they can navigate,” said Judge Gordon. “We need a system that works for everyone; that helps to solve problems without being the problem; and we need to always look for ways to improve how we deliver access to justice and to ensure the integrity of the process we provide.”

The Family Law Self-Help Center https://www.familylawselfhelpcenter.org/