Thursday, November 7, 2013


A few years back (okay, more than a few) my boss gave me a crystal ball.  Her wry sense of humor mixed delightfully with good taste and the large glass ball still sits beautifully perched upon its pewter stand in my office today.  It’s a fun reminder for both me and my clients that, while most people were out there having lives, lawyers were spending their time memorizing the law, learning the procedures, practicing arguing tactics, working on oratory skills and perfecting writing skills…but we failed to master precognition.  A glaring flaw, I know.

So, unfortunately, I can’t tell you what the judge will decide.  However, ever the pleaser, here is what I will do for you: I will explain how the decision will be reached.  

Let’s get into some basics in court-centered dispute resolution.  First thing first: I need to get something out of your head called “truth.”  Truth is a fabulous thing and it does exist.  It does.  But the court system isn’t built on Truth because trying to build something on Truth would be like trying to build something on shadows.  So forget about Truth, the only thing we have to grasp our little hands around is a Process That Looks for Truth.  This Process, also known as “due process,” is a way for us to resolve a dispute even when “truth is at the bottom of the bottomless pit.” (Jerome Facher, a Harvard law professor used to use this term.) 

There are several pillars that form the foundation for due process.  The first pillar is the impartial Truth Seeker.  Without an impartial judge or jury there is no way to guarantee a fair result.  The second is the concept of “perjury," which is to exact penalties, including jail time, for anyone caught lying.  We may not know what the Truth is, but if you are caught leading the Truth Seeker in the wrong direction you will be punished.  

I’m going to stop here and acknowledge that Ask Roxy readers are critical thinkers and your lovely minds are probably screaming with examples of impartial truth seekers and litigants who spray perjury like spit whenever they talk, but stick with me here.   We are now residing in lovely theory land, with rainbows and happy little blue birds, not ooy-gooey reality.

The third pillar is the advocate.  Ideally, each side has access to a trained advocate who knows the law, knows the court process, and is sworn to zealously advocate for your interests (no matter what they truly think of you).  The concept is that the lawyer can take the lay person through the dispute process as fairly as possible and faster than you would stumble through it on your own.  (The conflict of interest here, of course, is that the lawyer is paid by the hour.  Expecting your lawyer to resolve the dispute in the most expeditious manner is like expecting your real estate agent to get you the lowest price on a house when her commission is a percentage of the sale.  Not that I’ve ever met a professional who would prioritize their own pocketbook over their sacred fiduciary duty to their client.  The horrors!)

The fourth pillar is, of course, the law.  In particular, the rules of procedure, many of which are based in  Constitutional Law and fundamental concepts of fairness.  

So if you are in court, these four pillars are what you are standing on.  If any one of them feels a little rickety (like maybe you're wondering if your Truth Seeker is really impartial given that there are studies showing that things like the race of the judge and whether he has eaten recently affect the outcome of your case), I suggest talking to your lawyer about it.  I’m sure he will enjoy a nice, long, chat.  On the clock, of course.

Or, you could take charge of your life and check out alternative dispute resolution.  Frankly, you’ll probably end up there anyway.  This is the process most disputes take: 

  1. first the explosion happens.  Ack!  Conflict!  The people in the conflict make some frenzied swats at trying to convince the other side they are right but quickly give up and run to tell Daddy.  
  2. “Daddy” Judge, unfortunately, doesn’t just make a quick decision and send the other party to their room like real daddies do so the parties soon find themselves in a procedural quagmire with court dates that are annoyingly far off and a lawyer who has all sorts of Things To Do like write affidavits and briefs and fill out forms — all of which feel like something but don’t quickly result in anything.  
  3. After a few billing cycles, the parties start to realize that they need to resolve the dispute, fast, before the cost of the fight outweighs any benefit to winning.  So they weigh how certain they feel about their case against how much money it will cost to make the case in court and, more often than not, they agree to try to resolve the whole thing in mediation or by some other type of settlement negotiation like collaborative practice.  

This will likely happen to you.  Over 97% of civil cases settle before trial.  

And there you are: in a mediation or collaborative process that you could have chosen in the first place.  

Except by this point:

  1.  you hate the person you’re up against even more than you did before you spent thousands on the fight and read all of the documents their lawyer wrote that basically called you scum, and
  2. because you have spent thousands on the fight, you are a little too desperate to end the damn thing, which means that you might agree to something you will regret later.  
  3. Plus, you’re exhausted because the emotional toll of being in conflict for so long is only fun for a few truly twisted souls.  

So, what will the Judge decide?  Why let some judge decide anything about your life?  Take your power back!  Check out mediation or collaborative practice and move on with your life.  

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