A Frustrating Example of Failure Demand

The Oregon Court of Appeals recently issued an opinion vacating and remanding a trial court's modification of a prior parenting time order due to "an internal inconsistency as to the number of overnights that the child is to spend with each parent."

A short version of the facts: Both parents appeared at the modification trial pro se. In the bench trial, the judge relied on the father's (mistaken) interpretation of the couple's existing parenting plan instead of taking the time to understand the plan himself. The judge issued an oral ruling granting mother slightly more parenting time than father (4 days a week to mother, 3 to father).

With no attorneys to help, the Court drafted the "Supplemental Judgment Modifying a Domestic Relations Judgment" itself, in this case by making handwritten notes in a court form. Seemingly confused by what the initial plan contained versus what he was told by the parents in court, the supplemental judgment contradicted the oral ruling and granted 4 days a week to father, 3 to mother.

Mother almost immediately recognized the error and sent a letter to the court asking for a correction. Father did not respond to the letter, and the court docket indicates that the court decided to take no action on the request.

Mother then appealed, still pro se, to reverse the court order.

From the Court's Media Release regarding this precedential opinion:

Mother appeals a 2021 judgment modifying the parenting time and child support provisions of a 2017 judgment, arguing that the modification judgment does not accurately reflect the trial court's ruling as to the number of overnights that the child is to spend with each parent. Held: The modification judgment contains an internal inconsistency as to the number of overnights that the child is to spend with each parent.
When a judgment contains an internal inconsistency or otherwise is ambiguous, an appellate court may look to the trial court's oral statements to resolve the ambiguity. In this case, however, the inconsistency in the judgment stems from two inconsistent positions that father took during trial, both of which were included in the judgment, such that the Court of Appeals could not discern from the record which intention would have prevailed had the trial court recognized the inconsistency when it prepared the judgment. 
Under the circumstances, remand was necessary for the trial court to resolve the inconsistency itself. Vacated and remanded.

What a cluster****.

These poor parents and their child have had to live with not just a wrong order, but a borderline inscrutable one. Here's what the judge's handwritten note said, verbatim:

Respondent to pick up [J] at Lebanon Police Station at 5:00 p.m. every Thursday, and return child to either school or mother at Lebanon P.D. in Monday a.m. Summer: 1 week with Respondent next with Petitioner; alternate winter breaks and spring breaks and holidays according to Linn County Model Parenting Plan, attached.

I'm inclined to call this lazy drafting, but it may just have been rushed. This trial happened in the middle of the pandemic with it's attendant case backlogs. Even if it weren't inconsistent with the oral ruling, however, it is terrible language.

Practice tip #1: Draft your legal documents for the people who have to live with them, not for the court record. The parties are your customer, not the judge.

But, as the appeals court highlights, the written judgment was clearly at odds with the oral ruling; something that Mother immediately caught and pointed out to the trial court. Here too, the Court (some combination of the Judge and his clerks) probably made a decision that was influenced by overwhelm. It would be a pain, and also take time they didn't feel like they have, to process Mother's letter and figure out whether it was right or not. So they punted.

That means, at worst, that the trial court was willing to let the parents just live with an incorrect order forever. Fortunately (I guess), Mother was able to successfully appeal on her own, meaning that the parents only had to live with the incorrect order for 2 years (and counting).

Practice tip #2: Take every opportunity to correct your errors quickly. It's a lot easier (and less expensive) that way. As Jay Foonberg said (quoting Thomas Jefferson), "If you have to eat crow, eat it while it’s young and tender.”

So now we have a situation where the trial court gets to do it all over again anyway. And all it took was 2 years the time and attention of three appellate judges and some unknown number of clerks and other court staff (insert eyeroll here).

Which gets me to the title of this post: This is a classic example of the concept of "failure demand," something the Kanban Method encourages us to avoid. From the book Kanban in Action by Marcus Hammarberg and Joakim Sunden, failure demand "can be understood as 'demand on a system caused by failure to do something or do something right for the customer.' The opposite of failure demand is value demand, which is the real reason that the system exists. Value demand means things you want the system to do. It goes without saying that you want to minimize failure demand where possible." (quoting Professor John Seddon).

Failure demand, of course, is the raison d'être for a court of appeals. Mistakes get made for any number of reasons, so we have a system for giving cases a second set of eyeballs to make sure justice and fairness prevail. But in this case, the failure seems to have been totally avoidable at least twice. A little more prep work by the judge (or his clerks) to understand the original parenting plan. A little more attention or scrutiny during the trial. A little more care in drafting the supplemental judgment. A little respect to the mother who caught the error but was ignored. 

And I won't even get into what it would take for us to have a legal system where the parties can afford the assistance of counsel instead of having to go it alone. (Although that's what we're going for at The Commons Law Center).

Practice Tip #3: The thing that feels "efficient" may actually be cutting corners, but we humans have a hard time seeing that in the moment (especially when we feel busy or overwhelmed). Getting things right the first time is always more efficient than getting them wrong and having to do them over again.

You're probably encountering failure demand in your own practice. Here are just a few examples that have come up recently with my clients:

  • Responding to a client's "where's my ___" email because you (or your team) didn't deliver when you promised.
  • Re-drafting something because you didn't have all of the information you needed before you started but you made some assumptions and carried forward anyway.
  • Re-working something that you delegated to someone else because your instructions weren't clear (or because the delegee made their own misguided assumptions).

Some amount of failure demand in any system is inevitable. The trick is to have the discipline, and build the capacity into your day, to make sure that things never fail more than once for the same reason.

{"email":"Email address invalid","url":"Website address invalid","required":"Required field missing"}