Recently we talked about how private judges can offer a way to keep your divorce proceeding completely private. When you and your spouse retain a retired judge to act as an arbitrator for your divorce, your case becomes completely private--only the arbitrated settlement submitted to the state court system at the end.
The private judge hears testimony, reviews evidence, and renders a decision in the case which the parties agree to accept as binding. There are no public court fights and no public record of the evidence and information involved in the trial. It sounds like the perfect solution for a high visibility couple. Except when it isn't.
Jolie-Pitt Divorce Highlights Flaws in the Process
There may not be a divorce that is more high profile than that of Angelina Jolie and Brad Pitt. The couple split in 2016 with a very public battle. Jolie alleged Pitt was abusive to one of their children and child protective services became involved in the case. Pitt was relegated to having supervised visitation for quite some time until normal visitation was eventually implicated. Four years later, the couple is still not divorced and is showing no signs of reaching a resolution any time soon.
Jolie and Pitt retained a private judge to act as arbitrator in their case, shielding themselves from public inquiry into their proceeding. The private judge has not been able to complete the case with any speed and it remains still in progress. Because private judge arbitration is completely private, there have not been any public filings in the case until now, despite the speculation over the length of time the case is taking.
That veil of privacy was shattered recently when Jolie filed a motion in Los Angeles Superior Court alleging that the private judge failed to disclose his previous business contacts with Pitt's attorney. Jolie alleges that private judge John W. Ouderkirk "failed to disclose the cases that demonstrated the current, ongoing, repeat-customer relationship between the judge and Respondent’s counsel."
She also claims that Pitt's attorney tried to keep the judge on the case even after she objected in order to further the judge's financial gain. Her attorneys have filed a motion asking to have the judge removed from the case because he handled several other cases involving Pitt's attorneys, suggesting this has made him biased. The filing goes on to say “it doesn’t matter if Judge Ouderkirk is actually biased. Under California law disqualification is required so long as a person aware of the facts ‘might reasonably entertain a doubt’ about Judge Ouderkirk’s ability to remain impartial.”
What the Jolie-Pitt Motion Reveals
On the face of it, the motion filed by Jolie's attorneys is about the judge failing to disclose his previous business encounters with Pitt's attorney. What it really means though is that Jolie is not getting what she wants and fears the arbitration decision will be against her interests. There are rumors that the issue that is causing the problems is child support payments. Because they fear an outcome detrimental to their client, Jolie's attorneys are looking for a way to remove the judge. After making private motions for recusal, a public motion filed with the California court applies heavy pressure on the judge to withdraw from the case.
The attorneys for both sides agreed to use Judge Ouderkirk for the private arbitration and there is no doubt Jolie's attorneys did careful research before agreeing to employ the judge, who is paid by the parties themselves.
It is unlikely they did not know he had presided over previous cases with Pitt's attorney. The legal world is a small one, and it's not surprising at all that there have been previous cases involving Pitt's attorney and Ouderkirk. Appearing in previous cases with the same attorney does not necessarily create bias. Private judges are carefully vetted in these kinds of cases, so it is likely both sides were quite happy with Ouderkirk's past performance until there were indications he was not going to rule in Jolie's favor.
Are Private Judges Biased?
In general, private judges are not biased. Think about it this way. Private judges are used because of their fairness and impartiality. If a private judge developed a reputation for bias or it was known they could be bought, they would not be selected to handle many cases. Since they are independent contractors, their reputation is everything and their income depends on that reputation. It is always a possibility that a judge could be threatened, coerced, or paid off, but this is very unlikely.
The flip side of this is that there is no oversight of private judges in these private proceedings. Divorce court judges regularly have their cases reviewed on appeal by appellate courts. They receive feedback and all of their decisions are public. Private judges receive no oversight at all. While the arbitrated decision they reach becomes the case's recorded settlement, their actions, behavior, and procedures throughout the arbitration are not public knowledge. Their decisions are never evaluated by a higher court. A private judge could most certainly be dirty and there would be great difficulty in proving that fact to be the case if it were true.
Personal Attacks to Achieve Outcomes
It appears Jolie's attorneys have used every strategy they could think of to turn her case around and have had to resort to a personal attack on the judge. Their public motion is a direct attack on the judge's reputation, ethics, and behavior. This kind of attack is considered a last-ditch effort in most legal circles. If the judge does not recuse himself or is not replaced, Jolie risks having her case decided by a judge whose reputation she has sought to besmirch. It's a dangerous gamble.
Private judges can offer a very private resolution in a high profile divorce case, but such judges are hired guns, with little oversight. Placing your case in the hands of a private citizen who is not officially a member of the court system is always a risk. If you are considering a private judge for your divorce case, review the pros and cons with your attorney.