More than a few times in the last month, many of my clients and potential clients have told me they think they “lose” every time they go to court. Having now heard from several people that they believe the system favors the other party in their cases, I am left wondering why this is happening.
Could it be that people in these cases get caught up in the negative and lose their ability to identify when things work in their favor? Maybe people’s expectations about the system are skewed in ways that make them perceive that they are losing because they expect results that the system cannot provide. If not, is it possible that some of these domestic cases really are one-sided?
If the problem lies with people’s expectations regarding their cases, then we in the legal profession need to manage their expectations better. One of the problems in domestic cases is that parties seeking legal counsel are often looking for someone to tell them they are right, not someone to help them analyze their cases objectively. A good lawyer has to be honest with clients about their chances of success, no matter how much the clients may not want to hear the truth. We do our clients a major disservice if we mislead them in an effort to make them feel better.
If the problem lies with clients focusing on the negative in their cases, then we need to help them see the big picture. Ultimately, part of our role as advocates has to be helping our clients understand the system and feel that they are represented in the process. For many people, their divorce may be their only real experience with the legal system. If they leave feeling that they did not receive fair treatment, they will carry their negative perceptions with them. As officers of the court and members of a profession, we owe our clients more than that. At the very least, we should try to help them see the positive aspects of the legal system and their cases.
If the problem lies in the system itself, and if certain cases do result in one side “losing” more often than the other, we may have a bigger problem. Although I have not seen it often, there do seem to be cases where one party cannot catch a break. Short of major reform, I do not know how to solve this problem. I generally have a great amount of respect for the judges who preside over family law cases and do not like to think that the problem lies in judicial bias. At the same time, I have to wonder if there is a certain amount of inertia that comes into play in these cases. If a party loses a couple of motions, maybe there is a boy-crying-wolf phenomenom creating a presumption that the same party’s subsequent motions also lack justification. In those cases, a good lawyer might be able to help by breaking the cycle – giving a losing case a “win” to reset the balance. Besides helping the client feel empowered and changing the client’s perception of the law, this might help to rebalance the case too, creating a more equal playing field gonig forward.
The beauty of our system is that it is supposed to provide equal justice under law. If people are feeling that the system is prejudiced against them or believe the other party is receiving some benefit denied to them, then we as a profession have a fundamental problem. Something is broken, and we need to find a solution.