Private trials gain popularity as a way to navigate

divorce cases
By Casey Smith World Staff Writer | Posted: Monday, June 9, 2014 12:00 am
More than 400 divorce cases are filed each month in Tulsa County.
Many divorces finalize quickly. But lengthy pretrial matters, busy attorneys, legal actions tied to
complicated emotions, and swamped court dockets mean that some cases can drag on for months despite
court policies and procedures that aim for efficiency.
Private trials are one option Oklahoma families have to navigate complicated divorce cases more quickly
than the traditional trial setting may allow. Benefits of private trials include increased speed, more
privacy and in many cases financial savings, proponents say. Finding those who oppose use of the
procedure in appropriate civil cases is difficult, but some advise using caution as the concept becomes
more popular.
Deborah Shallcross served as a Tulsa County District Court judge for nearly 30 years. She now works as
an attorney at the law firm GableGotwals and has refereed four private trials since joining the private
practice in 2012.
Both parties must agree to a private trial. If judges feel that request is appropriate, they will appoint a
referee to run the private trial. Unlike the guided negotiation that occurs during a mediation, appointed
referees hear evidence and make findings of fact and conclusions of law that the judges who appointed
them adopt as their verdict. Both parties have the same right to appeal that they would if a district court
tried the case.
Shallcross is scheduled to referee another private trial later this month, a family case just like the
previous four she has conducted.
The private trials take place in the ONEOK building where GableGotwals is located and include court
reporters.
Family law judges are extremely busy, and the emotional and financial stakes of divorce makes waiting
for the case to be over difficult on everyone, especially when children are involved.
We all know people whose cases have been pending for months, Shallcross said. Its a long time for
kids to be in turmoil, for parents not knowing what their financial future will be like.
Private trials can be completed more quickly than public proceedings, Shallcross said. For example,
Shallcross can complete cases in two days that in the courthouse would take five days because of
caseload.
Even though parties involved pay Shallcross her hourly rate, they ultimately save money because shorter
trials mean they pay their lawyers for fewer hours, she said.
Private trials also provide the privacy that mediation and arbitration do. Petition for divorce and decree of
divorce is public record, but unless one of the parties appeals Shallcross findings of fact and conclusions
of law then those specifics are confidential.
California-based trial consulting firm Decision Analysis has been suggesting clients use a private trial for
a long time, but the procedure is just starting to gain popularity, firm president Richard Gabriel said.
I think people are starting to consider it more and more because state court budgets across the country
have been severely slashed, he said.
Those shortages mean fewer court staff, increasing the length of time and money it takes for cases to be
completed in the public courts system, Gabriel said.
Decision Analysis studies have shown that despite the cost of paying a private trial judge, and in some
cases a jury, parties involved in complicated civil cases often come out ahead financially because private
trials are much quicker.
Family Law is a very good place for (private trials), partly because these are families that are in custody
battles or marriage dissolutions and they need to move on, Gabriel said. These families are in limbo.
Budget cuts have affected Tulsa County District Courts family division, Tulsa County Court
Administrator Vicki Cox said.
The family division lost two referees during fiscal year 2011 due to budget cuts. Those employees had a
lot of administrative duties but also helped with the workload in ways that included conducting initial
appearances, Cox said.
I think the family courts are overburdened and trials stack up, said Judge Mary Fitzgerald, who returns
to the position of Chief of Family Monday, a position she also held about five years ago.
The family division seems to be more backlogged than other divisions although they have tried to work
on policies and procedures to ensure backlogs are not imposing roadblocks, Fitzgerald said. Attorneys
busy schedules and litigants actions can also contribute to some family cases dragging on.
Private trials came on Fitzgeralds radar within the last year, and they are potentially a tool that could be a
great assistance to the family division and lawyers, she said.
However, private trials are a new trend and Fitzgerald said she believes it is too soon to say what their
impact will be on the court system or on information in the public record.
As long as there is judicial discretion and precautions are taken to ensure that neither side is coerced into
a private trial, the tool will likely be beneficial, she said.
I think that some people might argue that it takes away from peoples rights to a trial, Fitzgerald said.
But for the most part, I certainly think its beneficial, as long as both sides agree and there is no
coercion.