On their third scheduled trial date, John Smith, his former wife and their attorneys walked into court, convinced that finally they were going to go before the judge and settle their divorce. On two previous days over the past year they were turned away, bumped from the docket by other cases.
"The third time, I thought, 'Nobody can put me off now,'" said Smith, which is not his real name. "We actually walk into the court and the judge says, 'I'm sorry but I can't hear your case today because I'm going to hear a complicated case between two industries. See if you can get on somebody else's docket.' I hit the ceiling -- I absolutely coundn't believe that we were not going to get into that courtroom after all this time!"
The Smiths' fourth trial date came two years and $7,000 dollars after they filed for divorce. They estimate it would have cost them only $1,500 if they had been able to get a hearing the first time. And it was not only money but also the toll the emotional strain from the prolonged waiting period that left scars.
Last year 2,567 divorce cases were filed in Montgomery County Circuit Court, but only 10 to 12 percent of them were resolved by court trial.It's a long way between filing and divorce, and most reach out-of-court agreements at some stage before the trial.
But for those who are waiting for the trial date, who are unable to agree on a settlement and see the hearings as a resolution, the court system can aggravate an already painful situation.
"People get all psyched up for it and it's a devastating letdown," said Mary Hoof, a counselor for the county's Women's Commision who said she sees both men and women facing the emotional quandries of legal proceedings. "They're depressed and angry. They say things like, 'Why can't they get this right?' or, 'They're out to get me.'"
"We beat our brains out to get everybody on that we can," said assignment commissioner Bettie Skelton, whose job it is to schedule the more than 10,000 criminal, legal and equity cases yearly for the court's 11 judges.
State law requires that criminal cases be tried within 180 days and the Montgomery County Circuit Court usually sets the dates within 30 to 60 days. Appeals from the elections board have to be heard within 30 days, and from the liquor board within 10 days.
Equity cases, such as divorce, get a trial date on average 250 days from the time of filing. That's about 30 days less than the state average.
But every week -- and the court does not have an exact figure -- some cases do not get heard because a judge is sick or, more frequently, cases run over their estimated court time.
"Attorneys underestimating the court time they will need is a big reason why so many cases get bumped," said Skelton. "We call the attorneys to get an estimate. Some say two days and it takes six to eight days. That bumps a lot of cases."
Attorney Jo Fogel said that in the last year about 90 percent of the domestic relations cases she had were not heard in court on the scheduled day because of a problem with the court calendar.
"The assignment commissioner is in a hot seat," said attorney Dirk Thompson. "They pressure you to take less time. It's a difficult process to guess how much time you will need. It involves the dynamics of three forces."
"It was never great but now it's tragic," said Fogel. "I have a client who moved to New York and her husband is in Colorado. In August we got a hearing date for October. My clients flew in the weekend before.
"On Monday morning we get a call from the assignment officer saying that they could tell already our case wasn't going to get heard Wednesday. The only thing for us to do was file for continuance and be put at the bottom of the list.So now we have a June 1981 trial date. And my client, who needed money badly, has to make other financial arrangements. Your life stays in limbo."
"Imagine the sense of rage and frustration that you can't get into court!" said Smith. "I am upper middle class and educated, and if this can happen to me, think of the guy who's a high school dropout. It's bad enough for me, but I can take care of myself."
Administrative Judge David L. Cahoon said that because the county has one of the highest median family incomes in the nation, there are more cases with more at stake, and that imposes time demands on the court.
He said the cout has been trying to get additional judges in order to improve the certainty of trial dates.
A pretrial calendar call system begun a year ago for law cases -- cases such as malpractice suits or autombile accidents -- has helped to keep those cases on schedule. The pretrial calendar call requires lawyers to meet two weeks before the trial and advise the court that they have discussed the issues, exhibits, depositions and settlement.
It has shortened the time lag from 440 days to 360. The court is planning to require the call for equity cases starting next year.
"One of the problems we see is that there are some equity cases where the lawyers haven't even communicated with each other before showing up in the court hallway," said Circuit Court Clerk Howard Smith.
The complexity and unpreditability of divorce cases plays havoc with schedules. "Say you want a divorce, and maybe the other party doesn't," said Cahoon. "Or the other party does and you don't. And there are six kids and you each want three but a different three. And there's alimony, child support, distribution of property and probably an injunction against letting a paramour live with the parent. You want manifold forms of relief. When the pleading is filed, you cite all of those. But some will be uncontested.
"We have no idea if it's a person with moderate property interests but strong parental feelings or if substantil property is at stake, some of it outside the juridiction.
"We're concerned that they give us accurate knowledge about the case, and we can improve the schedule to the extent they give us that information," he said.