One of the questions I am often asked by people who are seeing me for an initial consultation, particularly if their matter involves litigation, is “are you aggressive?” to which I always respond “No.”
When people are involved in family court litigation their greatest fear is that the lawyer who represents their spouse will succeed at intimidating their lawyer, or outshining their lawyer in front of the judge, and this will lead to an unfair result for them. While this fear is very understandable, it is a mistake to conclude that an “aggressive” lawyer is necessarily a good lawyer and that hiring an “aggressive” lawyer to represent you in court will necessarily lead to a better result for you.
A lawyer’s job is to provide you with information and advice about the law that governs your family law matter and the court procedure, to present your case to the judge accurately so that the judge can either give you suggestions regarding how to move your matter forward or make a determination on an interim or final basis and, most importantly, to assist you in negotiating a settlement with your ex spouse.
Most cases involving litigation are settled prior to any judicial determination having been made. Only about 2% of matters involving family law proceed to a trial. This is largely because a lot of emphasis is being placed by our family court judges on settling matters, rather than having a judge make the decision for you. The “Family Law Rules” that govern the procedure in family court also heavily emphasize settlement of issues prior to trial. Because of these rules you are required to have a Case Conference before you can bring a contested motion before the court. One of the main goals of your Case Conference is to discuss options for settlement of your matter before you proceed further and incur more costs.
Once you have had a Case Conference, you can proceed to bring a motion to seek interim relief such as an interim order for child support, an interim order for spousal support, an interim order for custody and an interim order for access. However this is not as simple as it appears on the face of it, as the family motions court in many jurisdictions is overwhelmed with litigants, many of whom are unrepresented. As a result, the judge may not even be able to hear your case on the date that you scheduled your motion for, and may make you come back another day after having waited all day to be heard. This is not an uncommon experience in Barrie where I practice.
After your Case Conference, the next required step is a Settlement Conference where a judge once again will give you suggestions on how to settle your case. If you cannot settle at the Settlement Conference the judge will schedule a Trial Management Conference. At the Trial Management Conference there is usually another attempt to settle the case. If the case does not settle, the judge will make a Trial Management Endorsement which lays out all of the steps for each party in preparing for trial and sets time lines for serving and filing your materials for trial. There is then a trial scheduling court when you would be scheduled to be heard during a specific “trial sitting”. However, there is no guarantee that your trial will be heard during those sittings, as matters are often not reached and are adjourned to the next trial sittings. It can easily take up to two years from the date the litigation commences for your trial to be heard.
At every step in the proceedings you will likely be encouraged by the judge to settle your matter prior to returning to court. There are many ways of negotiating a settlement of your family law issues, even when you are involved in litigation with your spouse. You can still attend mediation, have four way meetings with your lawyers and negotiate at court prior to and after having seen the judge. There have even been some cases that I have had where the parties have agreed to put the litigation on hold and have signed a collaborative agreement that they will attempt to resolve their matter out of court.
There are many advantages to negotiating a settlement rather than allowing a judge to make a decision for you. These advantages include, but are not limited to the following:
a) Costs- the cost of litigation, if you have a lawyer of record, is prohibitive. This is mainly due to the time spent waiting with your lawyer to be heard. Each day in court can cost you as much as $2,000 to $3,000. By settling your matter early on in the proceedings, you are potentially saving yourself thousands of dollars in future legal costs.
b) Dissipating conflict- it is widely known that conflict between parents can have very adverse effects on their children. Litigation, particularly contested litigation, has a tendency to inflame conflict between the parties as things are said in court documents about the other person that are very hurtful. The children can feel this tension between their parents and it affects their sense of security and stability. Sadly, some parents use litigation to alienate their children from the other parent and this can have devastating effects on the children’s future development. As an old African proverb states- when two elephants fight it is the grass that suffers. Similarly when parents fight, it is their children that suffer most from the conflict.
c) Having more control over your life- it is a mystery to me why anyone would ask a complete stranger, i.e. the judge, to decide for them what will happen to their children, their finances, their property, etc… No matter how good your lawyer is at presenting your case, the judge has very little information before them from which they can make these decisions and often there is a lot of conflicting evidence that they have to weigh in making a decision. Some people think that the judge will punish their spouse for their bad behavior (eg. Having had an affair and abandoned their family). This never happens as the judge’s role is not to assign fault for the marriage breakdown. They are simply trying to put each party on a relatively equal footing as they start their new life and to ensure that children are properly cared for.
Very often, the result of the litigation is very predictable and a lawyer with experience in family law can give you an idea fairly early on about what will likely happen if you went to trial. If you are wise you will heed their advice and settle on this basis.
The danger of hiring an “aggressive” lawyer is that that lawyer will take control of the litigation and keep it going when it would actually be in your best interest to settle the case. You should always be doing a cost-benefit analysis for yourself to determine whether pursuing the litigation may end up costing you more than settling the litigation. Also, keep in mind that there are other costs to litigation that are not pecuniary in nature such as the stress that it causes for you and your children and the time that it takes away from your other activities.