A Reality Check on Going to CourtClark R. Ward
Among the most common assumptions parties make in any court case is that you are guaranteed a “day in court,” and that your judge has no prejudices and will always be as interested in your case as you are. Let’s set the record straight about some realities of going to court.
Your right to a “day in court.”
There is no law anywhere that guarantees you a day in court. It’s an idea that has stuck around forever but doesn’t really exist. Your right to a day in court in a civil case is defined by rules of civil procedure and the discretion of the judge and his staff, who determine how much time they will grant you to present your case. Judges are people too. They get tired of hearing case after case after case. They have more cases to be heard than time to hear them. So, they have to figure out how much time your case should take to be heard.To do that, the court system intentionally has tiers to encourage parties to settle their case and avoid going to trial altogether. Mediation is the term used to bring parties to the negotiating table out of court, either with or without their attorney, to discuss each issue and try to resolve as many of them as possible. This is not an effort by judges to dodge their sworn duty to hear cases. Rather, it allows parties to communicate and negotiate to see if they can come up with a reasonable solution on their own. Why is this a good idea? Because research has shown that agreement made by the parties themselves are followed more often than when a court tells you how it’s gonna be.When a judge gives you a ruling you don’t like, you will more likely try to figure a way to avoid it than to follow it. So, you wind up spending more money going back to court to defend your noncompliance or for enforcement of the rulings. Judges and commissioners don’t like people returning to court for noncompliance. There are pre-trial conferences, status conferences, mandatory mediation conferences that are set to bring the parties to the bargaining table to try to reduce the issues in dispute or resolve them altogether.No two mediators are alike, either. You have to know who is best for your situation. Only an experienced lawyer can help you. I’ve been to hundreds of mediation conferences with many mediators of varying personalities, strengths and weaknesses. I’ve been a mediator myself.Even when you finally get to court, there is generally not enough time to explain things in sufficient detail to your satisfaction. That’s because it takes longer to present evidence and sworn testimony than you could ever believe; you don’t have enough money to retain your attorney for an unlimited amount of time; or because the Court will only grant you a limited amount of time to present your case.
Judges are free from bias and prejudice.
Like many of us, when they think they see a pattern repeat itself, they start forming conclusions and tell themselves: “Ok, I know where this is going, so let’s get this over with.”Think about it. Your case is the only one (or perhaps two or three) you have ever had to deal with. They, however, hear hundreds of cases just like yours. The judge’s natural inclination is to get to the bottom of things and move on to the next one.It would be naïve to think that judges don’t share some of the pain and suffering that you are going through. They get divorced. They make stupid human mistakes, they have life experiences that shape their thinking. If you ask 100 different judges to comment on the same question, how much uniformity do you think you’ll find? Very little.
So, you ask, why go to court at all?
It may, in fact, be your only alternative and a last resort when nothing else is working for you.
Judges try their best and they want to get it right, most of the time. But they don’t always. Sometimes they are abrupt, sometimes they appear to be a thousand miles away—and they may actually be. Sometimes they would rather be anywhere else, just like you. By far, though, most of the time judges and commissioners are attentive and try to be fair. Many judges I have known deliberately work at showing as little body language as possible so that no one gets an idea how the judge is, literally, leaning or thinking. It’s a good thing. But they do have prejudices. They are not machines that are without feeling, personal life experiences and bias. Knowing that, there are some judges that I want to avoid at all costs in one setting while hoping they will be assigned to my case in another.
The conclusion, then, is to accept some hard facts about going to court. It’s risky, expensive and the outcome is uncertain. Mediation and out of court negotiation avoid that uncertainty, but it comes at the price of making compromises. If the other side is hostile, combative and is determined to outspend you and take your case to trial, you have little choice but to lay your case before a judge and hope he or she sees things your way.
Seeing that it is your life that will be impacted for years to come, would you trust that to inexperience?
For More Information:
Clark R. Ward, Attorney-at-Law
Clark R. Ward Family Law
6925 Union Park Avenue, Suite 550
Salt Lake City, UT 84047
Email: [email protected]