Goodbyes: An Interview with Commissioner Josanna Berkow

Retiring Commissioner Josanna Berkow (right) with Contra Costa Lawyer editor Dana Santos

What have you enjoyed most about your time on the Family Law Bench?

The most enjoyable thing about this difficult work has been the camaraderie at all levels that help us serve the public.

Our family law bench is very collegial and supportive of one another – we talk a lot. The court staff are wonderful in family law. From the folks helping litigants at the windows, to those preparing the calendars in the back, to the courtroom staff, to the clerks who make the whole thing work, to the bailiffs who keep everyone safe, these are all the folks that have the most challenging jobs in the court. They deal with large numbers of cases and with largely self-represented litigants (66% and growing) on issues fraught with emotion – children and money. We couldn’t do it without them.

We also could not do what we do without the Family Section of the Bar. Over the years, I have done a lot of work both at the policy level, serving on the Administrative Office of the Courts (AOC) Advisory Committee on Family and Juvenile Law, and in statewide judicial education, serving on the AOC committee that developed a statewide judicial curriculum and regularly teaching with family law judges all over the state. In this work, I have seen how unique we are in Contra Costa County with our long history of strong partnership between bench and bar.

When I first arrived, my department was doing all the domestic violence, child support and most of the attorney short-cause calendars as well as long cause custody trials. Some may remember those calendars that averaged 50-60 cases a day – people were hanging from the chandeliers. With the help of the Bar, particularly Iris Mitgang and Martha Anthony, we developed a Mediator-in-Court program for my short-cause calendars that had a settlement rate over 85%.

We started a Family Law Social Worker program that used social-work interns to appear with families much as Court Appointed Special Advocates (CASAs) do in Juvenile court, ensuring that whichever judge was handling the most recent iteration of problems had information about previous cases and orders. By stipulation of the parties, the social worker monitored compliance with substance abuse treatment and testing, domestic violence counseling, and other issues so critical to children’s safety. Unfortunately, the grant ran out, and we have not been able to reproduce this program.

Working with attorneys, mental health, real estate and accounting professionals, we developed other sliding-scale and pro-bono programs designed to provide very specific information to inform court orders like focused evaluations, substance abuse assessments,“drive-by” real estate valuations, and cash-flow analyses for support.

The bench-bar partnership developed an exemplary minor’s counsel training program thanks to the early efforts of Barbara Suskind and Dan Harkins. We also developed the double pro-per calendar where attorneys still volunteer in each family law department to assist pro-per litigants with stipulated judgments. This work led to the pro-per clinics for starting and finishing divorce that I hope will be able to continue in some form.

Another rewarding endeavor was ACAD, the court’s Advisory Committee Against Domestic Violence that I had the honor of chairing for several years before the organization was moved to the Board of Supervisors. In partnership with district attorneys, public defenders, private counsel, educators, therapists, law enforcement agencies from across the county, and advocacy groups, we held several annual training conferences bringing all stakeholders together to learn from one another. We developed a uniform domestic violence incident report subsequently adopted by all Contra Costa Police Chiefs.

Before the establishment of the Family Law Facilitator program, I was able to work with several local law schools — Hastings, Golden Gate, JFKU, and Boalt — to develop a family law internship program. These interns greatly assisted the bench with research as well as preparation of orders after hearing. So many of these interns went on to become excellent family law attorneys practicing in our county. Now we have an in-house program through the Facilitator’s Office that does such wonderful work assisting pro-per litigants. Finally, I loved working with the bar, particularly Paul Bonnar and Christine Callahan, to establish Art-in-the-Courthouse (A in C), a consortium of attorneys, judges, artists and curators. Together we have established galleries with works of art loaned by local artists for display in all of Contra Costa court facilities. There are over a hundred pieces of fine art available for sale from the exhibiting artists. Several major works have been sold. And one of these days A in C will purchase a sculpture for installation outside the Family Law Center.

This job has been so fulfilling because of all the people who have worked together with concerted effort to improve access to the courts, make the experience more manageable for litigants and assist the court in obtaining the information so critical to fair and just decisions.

What have you found most challenging during your tenure?

The most challenging part of this job has been the necessity of making decisions so critical to families with limited information. This was particularly so for the majority of self-represented cases. All the programs mentioned above were developed to address this deficit.

Another major challenge was handling high-conflict cases with one or both parties filing multiple motions one after another seeking the same or very similar relief to those issues recently litigated. These cases represent less than 5% of the total family law caseload but take a hugely disproportionate percentage of court time. This becomes increasingly problematic as our resources diminish.

I have an idea that perhaps one day will come to fruition. I call it slow-track case management. The basic idea is to identify the small number of litigants who so over-tax the system and to set those motions for hearing on a slow track calendar with exceptions, of course, for true emergencies. The current system calendars all cases in the same way, in the order in which they were filed; there is no disincentive to deter frequent filers who can overwhelm our taxed system.

In the custody area the most challenging issues were the Moveaway cases that broke your heart, the special needs children with feuding parents and limited resources and the cases where one parent gives up the fight and walks away from the children entirely. I’ve taught all of these classes at AOC judicial education programs to try to alert judges to the problems and some approaches towards resolution. A collegial bench is a godsend in dealing with these challenges; one can always talk to one’s colleagues and get a sympathetic ear and some constructive advice.

I miss my good friend Jeff Huffaker, one of the best family law judges I have known. He is greatly missed by all. It’s important for all of us to remember that we did not create these problems; we are doing our best to try to resolve them. A good source for insight and consolation is the work of Dr. Mavis Hetherington, who reminds us that: “The current narrow focus in the media and some of the clinical literature on the hazards of divorce and remarriage, and problems in children whose parents have gone through marital transitions, is a disservice to the majority of those individuals who, often with heroic effort, are leading constructive lives. It isn’t a matter of whether the glass is half empty or half full. In the long run, after a divorce, the glass is three-quarters full of reasonably happy and competent adults and children, who have been resilient in coping with the challenges of divorce.” For Better or Worse – Divorce Reconsidered, E. Mavis Hetherington and John Kelly, W.W. Norton & Co. (2002).

What have you learned while on the bench that has helped you in your personal life?

Patience, patience and patience, time management, and the art of compromise. My work on the bench has helped me see the importance of putting family and friends first.

The bench has also provided me the opportunity for continual learning through teaching opportunities.

What do you plan to do moving forward?

I could tell you, but if I did, it would probably kill me rather than you.

Judicial canons of ethics are very clear that some of these plans can only be discussed following my actual retirement. What I can tell you is that inter alia, I will continue teaching at JFKU College of Law, editing my Family Law Forms book for the Rutter Group and sailing our sweet new sailboat Haru (Japanese for Spring) named by one of my two wonderful daughters-in-law to commemorate Japan’s recovery from its recent tsunami/ nuclear tragedies.

What do you believe is the most important tool for increasing access to justice, given the current budgetary constraints?

I have been giving this a lot of thought lately as I watch our resources diminish. Our wonderful family law staff will have to do much more with much less. Everyone will be waiting longer and longer to get into court and have their divorce issues resolved.

With the exception of California Conciliation Courts that pioneered the idea of mandatory custody mediation to precede adversarial hearings, all other divorce issues have been handled in an adversarial system. In recent years, new innovative approaches like Collaborative Law, arbitration, and various types of mediation have been growing in our field. We will need to continue and enhance these trends and find better ways of making ADR more affordable and available to middle and lower income families.

What would you tell new lawyers coming into family law?

What I’ve always told my interns and my law students: Work hard, work smart, be kind, be understanding, listen carefully and always be prepared. Treat court staff well and realize that your matter is one among many others that they are dealing with at any given point in time.

I would also recommend finding a small group of friends and colleagues to meet over a nice meal to discuss the law – recent cases, legislation, and what has been happening in court.

It is also very important to take care of the other side of your brain. Do whatever works for you: coach your kids’ team, play an instrument, do some art and stay healthy by walking, running, playing a little baseball, doing some pilates or yoga, and eating healthy food. This is your Jewish mother talking.

What would you have been if you hadn’t gone to law school?

Perhaps I would have pursued my undergraduate work in theater, done some more singing and opened Books & Bagels.

It is difficult to imagine living a life before, during or after my tenure on the bench that does not involve law. We are a nation of laws, it is our greatest strength and we all need to do what we can to preserve it.