I remember when I took the bar examination 20 years ago there was a section on the exam that dealt with domestic issues such as marriage, divorce, child custody and family issues in general. Like many law school exams it was an ‘issue spotter,’ which meant that there was this convoluted hypothetical that looked like a highly condensed version of a daytime soap opera. To answer the question properly, you had to first figure out what were all the ‘legal issues’ in the hypo.
I remember that after reading the hypothetical, which took a good twenty minutes, I had this ‘flash of insight.’ Unfortunately, it wasn’t the kind of insight that I could put to use in answering the exam so I suppressed it. Here’s the thought I pushed away: "There are no legal issues here. There are issues with people not being able to get along properly."
The other day I was in court helping a friend with a custody issue. I spent the whole day in this state court waiting for the judge to get to our case. Every other case ahead of us was a domestic case, most of them with custody issues, and issues relating to the management of children. At the end of the day, after having heard many ‘legal arguments’ I found myself thinking that the root problems were really personal problems. The real problem was that people who onced loved each other enough to have kids now couldn’t get along with one another without having the court system provide a framework for them. We lawyers are happy to join in the fray and help build a legal framework for people, and slow to try to find a way for people to get along with less legal framework.
Obviously, lawyers tend to see the legal problems first because that’s what we are trained to deal with. Call me crazy (you wouldn’t be the first one), but I’m thinking that maybe lawyers should be trained to deal with other types of problems too. We need more psychological insight in the legal system and less parlimentary procedure. I know, I know. It’s not really practical to try to get people to have ‘psychological insight’, is it?
But maybe, it’s one of those non-practical things that’s still worth a try. Almost every legal problem starts out as another kind of problem first. I’m just saying that we should also focus some attention on the place where the legal problems originate.