Our justice system is adversarial. If you are a party to a family law case, this means you have an adversary. Usually that means the person on the other side of the v, as in Jones v Jones.
We can talk later about whether family law is well suited to an adversarial system and, if not, what system would better replace it, but right now we’re dealing with what we’ve got. And what we’ve got is adversarial.
That the opposing party is an adversary is expected. Some opposing parties are more adversarial than others. That the opposing counsel is an adversary is not surprising. Much of our work as family law attorneys is protecting our clients from the other side, both party and counsel. Clients expect and understand that.
But what can wholly surprise and baffle a client is the curve ball sometimes thrown by persons not named in the case, but central to it nonetheless: judges, court administrators, guardians, mediators. The list goes on. As litigators, we attorneys have to protect our clients from this horde as well.
In criminal law you know the scenario. The defendant appears before the hanging judge. This is a judge who will not administer justice fairly, who already has a bias against the defendant. Family law is no different. There are judges who are pro-women and judges who are pro-men. There are judges who don’t respect foreigners. There are judges who detest particular occupations. You name it, some judge somewhere probably hates it.
There are court administrators who behave as though their jobs were bestowed upon them by a deity and the mere mortal taxpayer had best well comprehend that or watch their case disappear into obscurity.
There are guardians who adhere to a mantra of “do what I say and not what I do.” Any lip on the subject yields losing the child.
Understand, I’m no where near saying that all judges, guardians, court administrators, etc, have some huge bias. Most don’t. But some do. Enough do to warrant this post. And that’s when our clients get thrown a curve ball. And it’s that curve ball that will surprise them and clock them up-side the head if we attorneys don’t protect them from it as best we can.
And it’s sad. Our clients see us as representatives of the legal system, so when the system fails, like when a neutral flatly isn’t, we bear the brunt of our client’s disappointment and disillusionment, even though we know our job is to protect our client from probable and improbable attacks. We know part of our job is working within and sometimes against a system that sometimes fails. We know the battle is raging ahead and bullets are flying all around, but we also know that the fight isn’t always so obvious. We are quite aware of the unseen land minds as we tread through the sometimes treacherous litigation field.
So like the criminal defense attorney who battles not only the police and the district attorney but the hanging judge, so too do family law attorneys sometimes have to battle a biased judge who hasn’t the capacity to hear the evidence because of the nature of the party before them.
If you compare my collegues and I to that well worn criminal lawyer image, you’ll get the point and you’ll better understand the ever shifting and obscured battle field we work on. You’ll better grasp the many, many ways we are called upon to protect the client.