[Posted August 6, 2009] Do you ever wonder whether you’re a voice crying in the wilderness? That you’re waxing eloquent without an audience? If a lawyer makes a statement and there’s nobody there to contradict him, is there an aggrieved party who can appeal?

Well, okay; the last one is a poor offshoot of an old spousal joke (“If a husband makes a statement in the forest, and his wife isn’t there to hear him, is he still wrong?”). But at least I don’t have to wonder about the first two questions. I can make a statement in one of my posts and know, to a moral certainty, that if I blow it, I will have volunteers who will cheerfully set me straight. For example, . . .

On Tuesday, I posted analysis of the Court of Appeals’ ruling in a domestic relations case, de Haan v. de Haan. In that case, a divorcing couple (can you still call them a couple by that point, I wonder?) secured the appointment of a judge pro tempore to adjudicate their entire case. Based on four factors, I leapt to the conclusion that the docket up there must have reached new heights, or maybe depths, of backlog. If people have to step outside the formal judiciary to get the attention of a decisionmaker, things must be pretty bad up in the State of Northern Virginia.

Turns out I may have been a tad hasty, according to more than one note I got in response. Here, in my feeble defense, are my four factors:

1. I had barely heard of the use of judges pro tem before this case came down the day before yesterday. But it turns out that it isn’t all that uncommon, especially in domestic relations cases. The two most prominent ADR providers in Virginia (see here and here) specifically hold themselves out for this very function, among others.

2. The pro tem statute only authorizes the use of such judges in two circumstances: “. . . when the judge of the court is disqualified or unable for any reason” to handle the case. I assumed that that meant you would need a docket crisis (in the absence of a recusal) in order to use such a judge. In practice, it doesn’t work like that; busy trial courts are usually only too happy to have the help, so having two willing participants is usually enough to secure the appointment of the judge pro tem.

3. Over time, I have heard grumbling by lawyers up in Northern Virginia about having to deal with the intricacies of the Fairfax Circuit docket system, which I accordingly termed arcane. That’s a swell word from a wordsmith’s perspective, but it was probably unduly pejorative in this context. Fairfax is, of course, a whopping jurisdiction, and if that court used the relatively-informal motions-docketing procedures employed down here in Virginia Beach, the court could drown on motions day. I need to cut those guys some slack.

4. (Here’s the best one I’ve got.) “The parties agreed to employ a judge pro tempore to adjudicate certain areas more rapidly than they would otherwise be heard under the circuit court scheduling system.” There you have it; that’s from page 2 of Judge Haley’s opinion in the case, and I accepted the statement without questioning it. (Hey, if I sat down to fact-check each and every statement recited in every judicial opinion, I might get my case analyses out within a year and a half of the date of release. Let me know if you’re okay with a timetable like that.) Well, in his defense, his honor might also have been misled by the first three factors that led me astray.

In truth, the Fairfax system worked in this case with impressive speed. Mrs. de Haan filed her divorce petition on March 28, 2008. Two weeks later, the court set a trial date for the primary issues in the case (most importantly, custody) for April 30. I have done the math for you, my loyal readers; that’s 33 days from suit filing to trial date. In some trial courts with which I’m familiar, you can’t get a hearing on a motion, much less a trial, that quickly.

My thanks go out to those of my readers (and they will remain anonymous) who wrote to me to point out the folly of my prior words.