I am sick and tired of judges getting it wrong.
There, I said it. (and I apologize to the judges reading this that tend to get it right, because, yes, I know you exist too and I thank heaven when I see your name listed next to my case on the docket). I also recognize we ask impossible tasks of you (keep reading, I get there).
I am also sick and tired of what litigation does to families.
I have done a lot of self-reflection, journaling, writing, and looking back in 2021 as I decide what path is next for me. Do you know a common theme that has come up for me?
Litigation does not save families.
In fact, it usually makes things a whole lot worse.
I have represented hundreds of clients. Moms, dads, wives, husbands, grandparents, and kids from 18 months to 16. I have seen a heck of a lot of cases.
What I can tell you? Only in the very very rare instances should a case go to trial.
Trial is also extremely expensive. Like, you “could have paid for college instead” expensive. COLLEGE. As a good friend and colleague always quips to her clients when she is attempting to settle, “do you want to pay for your kids to go to college, or mine?” I have seen litigation drain 401(k)s, all the equity in someone’s house, rack up massive credit card debt. It. is. Expensive.
And expensive for what? After working with your lawyer, waiting for 1-2 years to finally “get” to be in court, and finally a judge hears your case and renders a decision. And then they get it wrong. Or perhaps, not “wrong” per se, but not at all what you were expecting. Not because the lawyer wasn’t good enough. Not because the facts weren’t right. But because the judge perhaps just didn’t “get it.” Any lawyer who has been practicing long enough will tell you the same thing. “I have lost cases I should have won and won cases I should have lost.” It is a weird, but true, concept, experienced by many seasoned family law lawyers. Yes, even the good ones. Yes, even the “greats” in our profession.
Before I continue my rant, I need to say this though. This is not about the judges as people. It is not even about the judges as fact finders and rule appliers. This is about the incredibly weighty expectations on them. Most of whom have never practiced family law (this may not be true in your neck of the woods, but it is mine). This is about the failure of the system as a whole as I see it.
Think about it . . . how on earth can someone really GET IT if they only see you in court for a few days? How can they really GET IT when you are bound by the rules of evidence and cannot say all the things you would like to say in the manner in which you want to say it. How on earth can the judge really get to KNOW you when you are sitting on the witness stand, freaked out, all eyes on you, and you are terrified of what and how to say anything because it is such a surreal experience. They don’t get to see you actually interact with your kids. And the awful awkwardness of having your friends, family, teachers, coaches, and clergy members come in to testify for you as a witness . . . (that is a whole other post I have brewing – but, no, you cannot just “write a letter to the judge”, yes you need to come to court, yes, I know it is awkward, yes, I know you are scared, but those are the rules).
So, again, this isn’t about the judges really. Because the task we are asking them to undergo is not as simple as “did Susie Q. run the red light.” Nope. We are asking them to make a ruling for a living and breathing family that still must go on and continue to go on for years to come. And we are asking them to do that for multiple families a day, a week, a year. And we are asking them to do that with their hands tied behind their back because they are never going to get to really KNOW your family. Sometimes they will “get it” yes, but a lot of the time, they won’t. It is an incredibly huge gamble.
So what the heck do we do? What do you do about it if you are in the thick of it?
The answer? You do not need to go to Trial to settle your case. You have other options.
You can mediate.
You can go the collaborative law route.
You can hire a parent coordinator.
You can settle.
Will you have to “give up” something. Sure. Of course. Your settled resolution will likely not be what you wanted 100%. Why not? Because there is a living breathing person “on the other side” who also wants their 100% solution.
A good mediator will help you create solutions perhaps neither of you thought of. You will reach a resolution wherein you may not be jumping up and down happy, but you won’t think your life is over either. (and remember, there is no “winning” here). You can save thousands of dollars here. Thousands. Do you know how good it feels when I get to be the mediator? When I meet with the parties for 3 sessions and wrap up their entire divorce case? For less than $5,000.00 all together? Had they gone the litigation route, each would have had to pay $10,000.00 to their individual lawyers for an initial retainer. Instead, they just needed to pay a small fee to a lawyer to review an agreement. That is a savings of $15,000.00 right there, plain and simple.
If you go the collaborative route, you will get to work with other lawyers and mental health professionals, all with the common goal of helping your family move on, heal, and divorce with integrity. (Again, this needs a whole other post). But, I can tell you this: you will have the opportunity to look at your spouse and their lawyer, in their eyes, in a private setting, and say all the things you may need to say, and then you can get down to business. You can say this in the beginning of your whole case and make sure the “other side” gets you and your problems, your side of things from YOUR mouth. Do you know how powerful that is when advising your own client? Wouldn’t you rather get to do that in the beginning of your divorce, rather than wait until the awfulness of cross examination at trial by “the other side” for the other lawyer to finally hear things from your point of view?
When you are at the crossroads of deciding how to proceed with your family law case, you need to remember this: No one is EVER going to care as much about your family and your case as you do. No one is EVER going to get to know all of the little itty bitty facts and stories and truly get the FEEL of your case and your life and what it is like to walk in your shoes. Your lawyer might come damn close, but at the end of the day, there is no one on this earth that will care as much about your kids and your finances as much as you and your partner.
You have a decision to make at the beginning. A decision that can save your family and your checkbook. Make it a good one.
Wendy is a family law attorney in Maryland. She is shifting her practice to focus primarily on mediation, collaborative law, and parent coordination. Her goal is to be a part of the solution, rather than feed the problem, for families in Maryland. To book mediation with her, please visit her law firm’s website here.
