Thursday, June 1, 2017

Lessons From a Day at Court

I have heard innumerable people say that the one thing they want the most is to have their "day in court".  They want to spill the beans and tell the truth about everything.  They believe that they will feel better and justice will be served once they have their day in court.

I hear the comments from people who are in slow-moving litigated divorces.  To most of these "day in court" people, the issues are simple and crystal clear, and they are convinced the outcomes must favor them.  No other view is conceivable.

For the people who are anxiously looking forward to their day in court, I would like to share some reality. I recently spent all morning and into the afternoon trying to work out temporary orders on a case.  It was not a unique experience; I have done it many times before.

Here are some observations from that "day in court":

1.  It can take a long time.  This one was from 8:30 a.m. to about 2:00 p.m., five and a half hours.  I have have had some go all day.  My average is about three hours. We usually work through lunch on those cases.

2.  People can become very irritable. Hanging around and negotiating or being in a hearing or just waiting can be very stressful if one or more of the players is upset.
  • Clients:  You and your spouse will probably be under high stress.  Many people are nervous and don't sleep well the night before.  It is very common for both sides to get angrier as the day goes on. Think how well you and your spouse act when you are tired and hungry!
  • Attorneys:  Sometimes they maintain control, but sometimes they don't.  The other day, the other attorney acted very irritated and that did not help settle the case.
  • Judge:  Often they are very busy and they express annoyance if they are asked to resolve issues like splitting up pots and pans.  Judge prefer making decisions on significant issues and not spending time on issues that mature adults should be able to resolve.
  • Bailiff:  Usually, they are very even-keeled, but sometimes they get snappy.  They don't like wasting time and they don't like seeing their Judge having to deal with insignificant issues.
3.  Both sides may be very unhappy with the results.  The other day, I saw both parties after the hearing/negotiations.  They both appeared to have lost everything! Here are some reasons why that can happen.
  • The facts may not be what someone expected or believed.  People are often mistaken, but they come to believe in an incorrect version of the "facts".
  • There may be stronger resistance than expected on some issues.  Where someone expected a quick agreement, there could be a huge disagreement. The result often is that someone doesn't get something that they had counted on.
  • Someone may be greedy and unreasonable.  It would be great if everyone approached negotiations with an attitude of cooperation and fairness, but it doesn't usually happen.
  • The Judge may have very different ideas about how things should be resolved.  Guess how that comes out!
  • Usually, there's not enough to go around.  Instead of meeting the needs of both sides, Judges or agreements often only partially meet the needs of each side.  Everyone gets less than they wanted or needed.
  • Both sides can't have the same thing at once.  Usually, there's sharing or one side gets less and feels "cheated".  
4.  It's still not over.  Even when you spend a long day at the courthouse, the case is still not finished.
  • Normally, there must be a written order, which may just be a temporary order. The written order will usually take several weeks to finish and get signed.
  • Often, there will be further clarifications needed.  Even though the attorneys and Judge may have spent hours putting together an order, some things may need to be more specific.
  • There are often changes with new provisions.  The attorneys and Judge may not have anticipated everything.  It is normal to make some changes after the fact to cover some issues that were overlooked.
5.  It's expensive.  Think about paying $400 to $800 per hour, or more, for three to five or more hours, for attorneys to be negotiating or in a hearing, or even waiting around to get into court, which is not uncommon.  Can you think of any more efficient or less expensive way to get issues resolved?

Sometimes, you have no choice.  The other side demands a hearing, the Court may schedule a hearing or you may be forced into Court because the other side won't work with you.

Most of time, though, you do have a choice.  At the outset, you should consider using Collaborative Law where you negotiate and agree to not go to court.  Another option if you are in a litigated divorce is to go to mediation which is a great process that is almost always successful. You can also try having the attorneys informally negotiate an agreement.

If you are tempted to want to go to court, think back on these Lessons from a Day at Court.  Having your Day in Court is probably not a good way to get your issues resolved.

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