“Wait, Wait, DO Tell Me!” A Candid Conversation With Justice Melissa Hart

 

Colorado is quickly becoming a bellwether for innovation in family law, moving away from adversarial traditions toward a system focused on family restructuring and hopeful outcomes. We sat down with Colorado Supreme Court Justice Melissa Hart—a leading voice in the access to justice movement and the champion behind the state’s proposed Rules of Family Procedure—to discuss this monumental shift.

Justice Hart explains why replacing the rigid Rules of Civil Procedure with a tailored, less-adversarial framework is essential for the 75-80% of unrepresented parties navigating divorce and custody. She shares how this cultural change, which moves away from “plaintiff” and “defendant” language, is empowering judges and fostering collaboration between the bench and the bar.

Listen in to learn about the presumptive “informal family pre-trial procedure” (and its non-I-dirt name), the inspiration drawn from states like Alaska, and the critical next steps in the adoption process. Find out how you can lend your voice to this transformative process before the public hearing on May 13th.

Proposed Colorado Rules of Family Procedure-

https://www.coloradojudicial.gov/supreme-court/adopted-proposed-rule-changes

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Listen to the podcast here

 

“Wait, Wait, DO Tell Me!” A Candid Conversation With Justice Melissa Hart

We are thrilled to feature our special guest, Justice Melissa Hart. Justice Hart, thank you so much for joining us.

Thank you so much for having me. I’m honored to be here.

Let me tell the world a little bit about you and when I say that we’re thrilled to have you here. We really are. I had the privilege of meeting Justice Hart before she was Justice Hart, when she was a Law Professor at University of Colorado at Boulder. She would come, try and cram into our brains as judges at the judicial conference in about an hour, all of the Supreme Court and constitutional law issues that had come up in the prior year. That’s when I first got the opportunity to meet Justice Hart, but she has served on the Colorado Supreme Court since 2017.

Before joining the court, as I said, Justice Hart was a professor at University Colorado Law School, where she directed the Byron R. White Center for study of American Constitutional Law. Throughout her years as a professor, Justice Hart maintained an active pro bono practice, which is amazing when we think about the brilliance that you’ve brought to those cases. You were writing amicus briefs in appellate courts and representing clients through the Metro Volunteer Lawyers.

Your teaching and scholarship is focused on access to justice, constitutional law, judicial decision making, legal ethics, employment discrimination and civil procedure. Justice Hart is a Colorado native. She grew up in Denver, where she graduated from East High School. She earned her bachelor’s degree from Harvard Radcliffe College and then spent a year teaching at a high school in Athens, Greece. We may have to ask you a few questions about that.

 

 

She returned to study at Harvard Law School, where she was articles editor for the Harvard Law review and book review editor on the Harvard Women’s Law Journal. After graduating from law school in 1995, she clerked for Judge Guido Calabresi in the Second Circuit Court of Appeals and for Justice John Paul Stevens on the US Supreme Court. Justice Hart practiced law for several years in Washington, DC, including as a trial attorney in the US Department of Justice. Justice Hart and her husband, Kevin Traskos have two children and two dogs. Justice Hart, we are so excited to have you as part of our conversation.

Thank you. I am thrilled to be here. I am thrilled by the work that the Consilium Institute does. This is great.

Thank you for supporting what we’re doing. One of the reasons we wanted to spend some time talking with you and feature you on our show episode is because in my view and in my experience, as a trial judge and now as the cofounder of the Consilium Institute have taken a huge leadership role in our state in family law issues. I’d like to understand as a constitutional law professor. It doesn’t necessarily seem like the most obvious fit. How did you come to be so passionate about family law issues?

The “Gateway” To Family Law: Access To Justice

There are probably a lot of different reasons. Some of them are personal like, “Give me a call sometime and we can talk about that.” If you start looking at access to justice issues, you hence not care about family law. Seventy-five percent to 80% of the family law cases in our state and in the country involve unrepresented parties who are struggling to make their way through court on their own. We’ve made the system impossibly complicated, unnecessarily complicated.

We have an obligation to 75% to 80% of parties to make it less complicated, even for those people represented by lawyers. This is why I like what Consilium does. We have an obligation to try to get people to think about the fact that it doesn’t have to be a fight. What you’re trying to do is you’re trying to get through this process together. Especially when you have children but even when you don’t. You’re trying to get through a process together so that everyone can get on the other side. That’s all. All of us who are lawyers, we’re trained that our system is an adversary system. We start with that premise in mind then we impose that on these unrepresented parties.

Again, coming back to access to justice. We ask these unrepresented parties to figure out how to fight with each other in front of judges when they have no idea what the rules of the fight are. We ask the represented people to fight with each other. For me, the gateway drug was accessed to justice. That was where it started for me. I thought about it and I’m very passionate. I do tons of work on access to justice but I’ve also become equally passionate about family law. Whether it involves unrepresented parties or represented parties because I feel like we can be doing this better and we should be doing this better.

I’ve become equally passionate about family law—whether parties are represented or not—because I truly believe we can do this better. And more importantly, we should. Share on X

One of the incredible joys of my job as a Supreme Court Justice is that I get to think about how we administer the justice system. I get to think about, “What if we didn’t always have such an adversary system? What if we thought about ways to make it less adversary?” We have that power and that’s very exciting to me.

I love hearing you say that. It aligns so deeply with my own thinking and Julie has heard me say this a million times. When I was thinking about Consilium and started with asking what seemed like a pretty outrageous question. I thought, “What if English contract law weren’t the basis for this? Why is it?” It was almost like, “Can’t I ask that question?” It seemed like maybe I couldn’t but I did.

Hearing you say that from your position, it reminds me in a way of the bumper sticker we used to see that said, “Think Global. Act local.” You’re taking these big concepts that are not convoluted to people who understand the rules. We throw people into a boxing ring with no experience and expect them to go at it. I can only imagine how frustrating that must be to watch this unfold.

I was never a trial judge, so I never sat on a divorce case but you did. Again, for the unrepresented people, I feel like we’re asking them to fight without any boxing gloves. The represented parties are already so angry and we’re like, “Come on in and go at it.” I imagine as a judge, it must be hard because you want to say, “Can I bring the temperature down? Can I help you not be this angry?”

The system probably is good for 5% to 10% of the people, but we throw everyone in there and apply it. Instead of having a system that more broadly works. For exceptional situations, we have to use this other system. To hear you talk about it from your perspective, where you have the ability to craft something that has that impact is so powerful.

I always thought of two things when I was on the bench, two things. One is my goal was always to have the family be self-governing after divorce. That was my goal. Give them the tools that they need so that they don’t have to come back and see me. The second thing that always struck me having taught trial practice in law school was, in trial practice, we’re looking at past events and deciding what happened. In a family, we’re trying to figure out what will happen and what it will look like. You’re right, Justice Hart. It is not a great fit for how we now think about families.

Breaking Away: The New Colorado Rules Of Family Procedure

I know one of the things that you want to talk about is our proposed Colorado rules of family procedure. It’s been so interesting working with this incredible group of lawyers and judges who’s been working on developing the Colorado rules of family procedure. Essentially, what we’re trying to do is pull family law out from the rules of civil procedure. It was Judge Randy Arp from the First Judicial District who said to me as he was retiring. He said, “Justice Hart, as the liaison to the section on family. Would you please make this happen? Would you please try to make this happen?” I said, “Sure, Randy. I’ll do that.”

You are.

You did.

It has now become this complete passion project for me because once you start looking at how incorrect the rules of a civil procedure are for family law. It boggles the mind. There are no plaintiffs or defendants in family cases. There are only plaintiffs and defendants in civil cases. That’s just one way to describe the idea. Many things about the civil rules don’t make sense and it goes to what Julie said. The civil rules are designed to look at an event that happened and take account of it. What you’re trying to do in a family case is reorganize a family and help them come to something that’s going to work for them. The language is completely different.

So much about civil rules doesn’t fit family cases. Civil Rules look backward to account for what happened; family law looks forward—reorganizing families and helping them move toward solutions that actually work. Share on X

I love hearing you talk about the language because the words we use indicate the thoughts we have or express the thoughts we have. When we start from a premise of a plaintiff and a defendant, as you said, it’s an adversarial system. It’s an adversarial setup and you can’t help but avoid posturing that way. When you talk about mothers and fathers or co-parents or things that are conducive toward restructuring a family in a way that has hopeful outcomes. It’s a very different premise.

One of my favorite things about our proposed rules of family procedure, which again have not been adopted yet. The court hasn’t voted on them yet. You can probably tell how I’m going to vote.

You worked hard to make them happen. I would hope that you would support them.

They have not been adopted yet. One of my favorite things in them is what the family law section of the Colorado Bar Association has very wisely told me we need to rename. It has been called the Informal Domestic Relations Trial Procedure, which they started calling IDRT.

You have to think of acronyms when you title something. You have to. You have to think ahead.

The “Inquisitorial” Model & The Road to Adoption

I had a great meeting with the chair of the family law section and he thought I said, “That was certainly not anyone’s intention.” I’m hoping that ultimately it will be called the Informal Family Trial Procedure or something that can’t be called IDRT. What it is, it’s the presumptive process under these rules, if they get adopted. It’s the presumptive process that would be used for unrepresented parties and the judge, in fact. It’s more the European system. What they call the inquisitorial process rather than the adversarial process.

The judge will ask questions. There won’t be formal rules of evidence. The parties will come in and say, “In response to the judge’s questions. What are you looking for here? What do you need?” They will be able to answer instead of this idea that there would be cross-examination, which parties don’t know how to do. The parties will talk to the judge and say, “Here’s how we would like to resolve our situation. Here’s how we think we should work things out.” The judge can decide that and there are already a lot of judges who frankly do that. There are a lot of judges who are less comfortable than Julie was when she was a judge. With that authority, they feel as if I have to follow these rules that I learned in law school.

From a judge’s perspective, I would talk with my colleagues about doing something more informal and the folks that came up either through a civil background or even a criminal background especially, which was most of my colleagues. I was the only family law experienced person when I was on the bench, when I was appointed in my district.

It felt uncomfortable doing that. I am going to turn that back to you, Justice Hart because part of that concern about and discomfort on the part of the judges is, what is the court of appeals going to say if they see this transcript or what is the Supreme Court going to say? What guidance given that the rules are hopefully changing? How will that help empower judges?

Having a rule that says it’s okay. That itself will be a huge empowerment for judges. That’s what I’m hoping for.

It’s messier. There are a lot of people who are comfortable in having a system that you can apply like the rules of civil procedure. The complexity of all of the family law can be messy. There’s a business model that also works for right. There are people who make their livelihood by being great family law litigators. They want to apply these rules and they want to object to certain evidence being introduced. That’s part of the model.

That’s our training.

You can fault somebody for that. That is what you’ve been told is good, in fact, expert lawyering. When it comes from the Supreme Court, that is a change and it’s a cultural change. It’s not just a rule change. It’s asking people to revive their perspective and the paradigm that they use for how we approach helping families move forward.

I agree with that, and I would say one of the things that I hope will make this change palatable, not to everyone. There are going to be people who will say, “I hate this. This is a terrible idea. What is happening?” I want to say we have six members of the CBA family law section on various subcommittees. We have at least six judges on different subcommittees.

We tried to engage people who are involved in the practice of family law to say, “Does this make sense? What changes make sense? What things should we just keep?” Some rules of civil procedure, we just said, “This makes sense. Let’s just keep it. This doesn’t make sense. Let’s change it.” It was not a wholesaler. Let’s just change everything.

An extremely thoughtful process of what a family law case looks like. For example, one of the things that is proposed is some pretty significant changes to some of the timelines. A lot of the judges said, “We’re ending up having to continue hearing constantly because of the way the timelines are set in these rules of civil procedure.” They just don’t work with how domestic cases are set up. We worked backwards from, “Let’s think about how a hearing is set up. Let’s think as domestic practitioners and work with that.” Which nobody has ever done.

I taught civil procedure for many years. I went to law school, so I learned civil procedure and I’ve read our articles on civil procedure. This concept of, that there’s one form of action. In 1938, when the federal rules of civil procedure were adopted, that concept was adopted. The States including Colorado carried that forward. There shall be one form of civil action. It’s not true anymore. We haven’t adopted them yet. We have a hearing in April on our juvenile rules.

What we’ve recognized in modern times is there shouldn’t be one for infection. This is just part of that recognition. The rules of civil procedure are going to have to be amended to not say there’s one form of action. These cases are different and they just need different things. We can’t ask the rules of civil procedure to change to fit family law because it works okay for complex civil litigation. They need to adjust.

The Rules of Civil Procedure will have to be amended to move away from the idea that there is only one form of action, because these cases are different and require different approaches. Share on X

Are you looking at the juvenile court rules as well?

My court is. I’m involved in it to the extent that all seven of us are involved in it.

You’re not spearheading that.

I get that.

They’ve been working on that. One of the things that I’ve received some criticism for. They’ve been working on the juvenile rules for five years and when I decided to take this on again at Judge Arp’s request. I talked to some judges in Arizona, where they do have a separate set of family rules. They said, “We gave ourselves one year. We’re just going to do it because you could take forever.” When I put together this committee, I said, “We’re just going to do one year.” It was eighteen months but I just said it’s not going to be five years. We’re not going to do that.

That was something I wanted to remark on is the speed in which this was done and the complexity of it. Also, the leadership that you’ve shown towards the finish line. It’s not quite there yet, but I did want to ask about that timeline because we want this show to be an opportunity for people to understand what the next steps are. I wanted to talk with you especially before your public hearing on the rules. If you want to just outline. We’ll have a link also for folks to be able to access the rules and be able to give feedback along with the timelines that you’ve set out, but if you want to just summarize that for us.

We want feedback. I desperately want feedback because of what’s going to happen. April 25th is the deadline for submitting written feedback and we really want it. We take it extremely seriously. Only because I’ve been so involved in this, I will then spend however much time it takes to go through all of the written feedback and incorporate it into a red line of the rules and send that around to my colleagues. We then have a public hearing on May 13th.

What I anticipate after that is that we will send it back to the subcommittee. Again, this is the subcommittee of this standing committee on family issues. We will send it back to the subcommittee and we will say, “Can you take a look at these proposed changes?” There will be individuals who will have proposed changes but I do want to call out the family section of the Colorado Bar Association. They’ve had one and are going to have two more section meetings, where they’re going through the whole set of rules.

They’re proposing specific changes and that will matter a lot to the court. A lot. We’ll send all of those to the subcommittee and say, “Can you get something back to us? You may disagree.” The subcommittee may disagree. Although, again a lot of the members of the subcommittee are on the family law sections. I’m guessing they won’t and then we’ll vote ultimately.

That’s what the process will look like with one big caveat. We’re going to have to do some workaround because the legislature isn’t going to have the time or emotional energy to do an amendment is title 14 where it references the rules of civil procedure. I’m not going to opine on what we might do, but we’ll probably have to do some work around. Unless we want to wait a whole year.

We don’t want that. We want this to go in fact as fast as possible.

We’ll figure it out.

There’s other initiatives though that you’ve been working on and leading across the state. Including the family law summit that we had at the Bench and Bar Summit and bringing those conversations together. Which is one of the pieces of your leadership that I admire and think is so strong in the family law area where you’ve been working to bring together the bench and the bar.

Addressing The “Bench-Bar” Tension: Chess Clocks & Humanity

That makes us awkward. I’m not doing that but thank you. I do think it’s important. It’s important for us to be talking together and working together and breaking down assumptions because there are a lot of unfounded assumptions and just misunderstandings. If we can just talk to each other more, everything’s not going to get fixed. One of the things we didn’t talk about or I don’t think we talked about at our last summit was the chess clocks.

It’s important for us to talk and work together, and to break down assumptions because there are a lot of unfounded assumptions and misunderstandings. Share on X

Heidi’s looking a little curious, but the chess clocks are the time limits that many judges. Including myself when I was on the bench, I put on the parties so that the case wouldn’t go on and on for days and days.

Which lawyers say and again, not having been a trial judge myself. I’ve never used a chess clock. Although, we do have time first but not chess clocks. Lawyers say, “It’s embarrassing in front of my client. My client looks at me and thinks I’m a child who’s being patted on that by the judge.” Judges say, “I have to have a way to make this hearing run on time.” That was one of the things I wanted to talk about at that last meeting. Is there some way to find some middle ground? Both of those things sound super reasonable to me.

It just seems to me there’s got to be someplace in the middle that we can meet. We talked about so many important things and we didn’t have a chance to talk about that. I thought there was an appreciation of each other’s humanity. Maybe we’ll make it easier to talk about the chess clocks at some point in this feature, which I think could be important. That’s my goal with all of this.

I love all of the judges I know who worked in this area. I don’t know the lawyers as well, but I like them too. I feel like if we could spend more time knowing each other as people that it would make a huge difference. It wouldn’t make people so mad about the chess clocks. Talk about it. I sound like a crazy lefty person.

I hated the chess clocks, but I felt like I had to use them. It’s figuring out that balance. Hopefully, some of the changes in the rules of not civil procedure, but domestic procedure will help alleviate some of that need because it will give the court a sense of more control over the process.

I think that should be right. It’s definitely one of the hopes.

What about the family restructuring process?

Renaming the rules to that? It may be a little too late at this point, but you could put that comment in, Heidi.

You could put that in. That might be too radical.

A National Movement: Cross-Pollination Of Innovation

One of the things about the Consilium Institute and our tapestry membership is that we are growing across the country. One of the things that we’re finding is the cross pollination of people in different jurisdictions. It sounds like you drew at least some of the guidance for the new rules from Arizona, and from other lessons learned from other places. What are some of the strengths that you’ve seen in those other places? What do you think we can as people in the trenches can learn from other places?

There’s so much. I occasionally just get on Google and start googling around. There’s so much innovation happening everywhere. It blows my mind. I mentioned earlier the informal IDRT, the informal family procedure, which we borrowed from Alaska. It’s been successful in Alaska, and so we started with Alaska’s procedure. A very similar procedure is being used in Cincinnati, so not all of Ohio, and maybe Des Moines. Don’t quote me on that, but they’re a couple of other local jurisdictions. Alaska is the only other state that’s doing it completely.

I feel like there are people everywhere looking at these problems because again, this 75% to 80% of family cases that are unrepresented. That’s not just Colorado. That’s everywhere. Every state is looking and saying, “What can we do to support this population?” We’re not going to pro bono our way out of it. We need to support these people who are unrepresented in getting them through the system. Frankly, we need to support the judges who are having to handle these pieces and get them through the system.

We need to support their children who didn’t get to choose any of this and get them through the system. There’s a huge energy for innovation in this area. That’s one of the reasons that we adopted our licensed legal per professional’s rule, which is only in family law. It may expand but now, it’s only in family law. It’s because we recognize that we need to help people who are trying to deal with restructuring their families. We need to provide them with whatever solutions and whatever tools we can.

We recognize that we need to help people who are trying to restructure their families, and we must provide whatever solutions and tools we can. Share on X

People all over the country are looking at this. Arizona has rules of family procedure. I believe they don’t have an informal procedure, but they’re looking at it. I’m in touch with the number of judges there and the last time I talked to them, my understanding is they’re looking at one. I’m in touch with a lot of Judges around the country on these issues and there’s just a lot of conversation.

Which is good.

That’s so great.

There’s just such an urgent need. That’s all. Oregon might be looking at an informal procedure. Everyone recognizes. We can’t keep doing things the way we’ve been doing them. We can’t. We need to be thoughtful, creative and also talk to each other and learn from each other about what works.

That’s so encouraging to hear. That’s incredible. It’s a movement it sounds like. It’s happening.

It’s fun to talk to other states. Also, it’s a real learning experience because there are states where their legislature is more involved than ours. There are states where there’s less local control than there is. You realize, some things are easier to get done here because we have what every state should have, which is the courts control the courts, and some things that are harder. We have such a strong local control culture. We have to figure out how you balance those things. What the local control culture means is you have to bring people along and convince people that this is a good idea. You can’t just tell them, “You will do this.” You have to convince people this is a good idea.

Personal Influence: From Greece To “Wait Wait… Don’t Tell Me!”

I’m glad you’re the one helping to do that convincing because you’re very caring, passionate, persuasive and amazingly knowledgeable, informed and quick on your feet which leads me to my next question. I told a former law clerk of mine that I was going to be speaking with you and she said, “You need to ask Justice Hart about when she was a guest on Wait Wait… Don’t Tell Me. Tell me about Wait Wait… Don’t Tell Me. What was it like to be a guest on that NPR show?

That’s so funny. My family and I used to listen to Wait Wait… Don’t Tell Me every Saturday, which everyone should do. It’s so fun. I’m an empty nester now. I can’t think why we were driving down from the mountains on Saturday morning, but we were. My son who was probably like 6 or 7. It said if you want to call in, call this number. He grabbed my phone and called in and just so anyone knows. If anyone wants to call in, it’s not like they answer. He called in and handed me the phone.

I left a message saying, “I live in Denver. I would be interested in being on the show.” They called me back and they said, “Which piece would you like to be on?” I ended up being in the limericks section. Which probably wouldn’t have been the one I would have chosen, but the timing of it worked out the best. Also, I frankly think it’s the easiest. I was confident that I would not fail, which is quite important. It was fun. Honestly, doing it was fun, but what was most fun about it was all the people I got emails and calls from afterwards who I hadn’t heard from in years who listened to Wait Wait… Don’t Tell Me all over, not just the country but the world. They were like, “Melissa, I heard you.”

Now, the follow-up question was, did you ever get the voice on your answering machine?

I never did. I should have but I was too disorganized to do that.

I wonder if the statute of limitations is fast.

I have wondered if I called and said, “I was on a long time ago. Could I please have your voice on my voicemail?” That feels weird.

You’ve won the opportunity and if there’s not a statute of limitations.

I would call.

It was fun regardless of the whole voicemail thing. It was also just so sweet that it was my son.

Colorado As A National Bellwether

That’s fantastic. Thank you for being our guest and stepping down from your national spotlight on Wait Wait… Don’t Tell Me. It’s a come and talk show on the show. We’re just so thrilled again that you took the time, Justice Hart, to talk with us about the important rules, the changes that are coming and all of the work that you’ve been doing and your leadership. We’re so appreciative of everything that you’re doing to help families restructure in Colorado. I expect that Colorado will prove to be a bellwether in terms of family restructuring and the rules that you’ve worked so hard on so quickly but beautifully on will become a model for other states.

Thank you. I certainly love both of you.

I love to be able to bring the conversation to Massachusetts. We need a subtitle to our show now, which is Wait Wait… Don’t Tell Me.

Excellent suggestion.

Thank you so much and for everything you’re doing. I appreciate it. It’s so important.

Thank you. It’s been a pleasure.

 

Important Links

• Justice Melissa Hart
• Consilium Institute
• University of Colorado
• Metro Volunteer Lawyers
• Second Circuit Court of Appeals
• US Supreme Court
• Colorado Bar Association
• Wait Wait… Don’t Tell Me
• Proposed Colorado Rules of Family Procedure

 

About Justice Melissa Hart

Justice Hart has served on the Colorado Supreme Court since 2017.  Prior to joining the Court, Justice Hart was a professor at the University of Colorado Law School, where she directed the Byron R. White Center for the Study of American Constitutional Law.

Throughout her years as a professor, Justice Hart maintained an active pro bono practice, writing amicus briefs in appellate courts and representing clients through Metro Volunteer Lawyers. Her teaching and scholarship focused on access to justice, constitutional law, judicial decision making, legal ethics, employment discrimination, and civil procedure.

Justice Hart grew up in Denver, where she graduated from East High School. She earned her bachelor’s degree from Harvard-Radcliffe College and then spent a year teaching at a high school in Athens, Greece. She returned to study at Harvard Law School, where she was the Articles Editor for the Harvard Law Review and Book Review Editor on the Harvard Women’s Law Journal.

After graduating from law school in 1995, she clerked for Judge Guido Calabresi of the Second Circuit Court of Appeals and for Justice John Paul Stevens on the United States Supreme Court. She practiced law for several years in Washington, D.C., including as a Trial Attorney at the U.S. Department of Justice.

Justice Hart and her husband, Kevin Traskos, have two children and two dogs.