Courtrooms are, for the most part, open to the public, and if you spend a day in a Supreme Court matrimonial part or Family Court courtroom, you will probably learn who is (allegedly) abusive, a dead beat, a drug addict or an alcoholic as the cases on the calendar are called one by one.

Many of the divorcing parties come to court dressed in their finest for the formal occasion, but as their case details unfold, they cannot clothe themselves enough to cover their vulnerabilities and deficiencies.

These people are usually in a difficult predicament and need bystanders to know what’s going in their lives like a hole in the head. They are not celebrities, who knew well beforehand what they were signing up for. They are ordinary people who often conduct their life with an expectation of privacy.

A group of seasoned matrimonial lawyers posed this dilemma to a panel comprised of some of the New York County Supreme Court and Family Court judges, and the judges conceded that the courtroom and minute books are open availing little privacy in that regard. However, they stated that they publish few decisions, and while this is primarily due to lack of time and resources, they also do so to protect identifying information from being revealed. They further stated that their concern for maintaining anonymity more heavily revolves around protecting the children involved in divorces.

Mediation is more of a foolproof solution toward maintaining the divorcing family’s privacy. In the mediation process, the parties meet with a mediator often in a private comfortable office meant to elicit a more relaxed vibe, and take the edge off (a very different ambience than the often imposing, sterile and cold courtrooms). Many of these offices are discreet and the conversations themselves are between three people – the mediator and the two parties – with no observers. The parties sign a confidentiality agreement to further boost their confidence in the confidentiality of the process (although, arguably, an agreement is only as good as the paper it’s written on, and once signed, requires that the parties respect and maintain its integrity by following its terms). However, mediation is not always a viable option and can only be exercised when both parties are willing participants, so there are inherent limitations.

There is a cost benefit analysis to maintaining open courtrooms and revealing details. The bystanders are most typically attorneys sitting next to their client — other litigants waiting for their cases to be called. While waiting, they often learn how a specific judge navigates and reacts to different case scenarios. This sort of educational process and exposure may often be faster and more efficient, accurate and compelling, than spending hours pouring over case law and general legal research for other litigants and their attorneys to determine how their assigned judge will lean in their case.

Regarding case law research, case law reference and citation is a large part of motion practice. With published cases, surnames are often used (and some of the names are very unusual and uncommon). To add a layer of protection, initials are sometimes used.

It is a very attractive concept to be learning from the details of other cases. The question is, do you want your case to be used as such a platform. While you may appreciate it, in theory, you may want it to be other people’s cases who you and your attorney are learning from to bolster your case and not your case that is being used as an example for others.

So, the question remains and is open-ended: Are there further steps that can or should be taken to better maintain a litigant’s privacy while still maintaining the valuable educational benefits that often flow from the open courtroom and revealing case law.

Feel free to contact The Law & Mediation Offices of Cheryl Stein with any questions.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com