Family Law Practice Series: What do you do about an unpredictable judge?

October 31, 2014

Family law gavelSo far in this series, we’ve explored the ways in which family law practice differs from other practices of law.

Part of the purpose of this series is to provide insight to attorneys unfamiliar with this area of law to understand what makes family law unique.  Quite often, non-family law attorneys who take on family law cases make critical mistakes in both their practice and their substantive legal arguments, which often have considerable consequences for their respective clients.

Unfortunately, just as attorneys in family law matters may make serious errors due to inexperience, so, too, can judges.  However, errors from the bench can have far more serious consequences.

Although many jurisdictions assign judges to dedicated areas of law over a relatively long period of time, such that they become quite knowledgeable on the subject, a sizeable number of jurisdictions still assign family law cases to judges as part of a general civil calendar, regardless of how much or how little the judge knows about family law.  As such, there is sadly no true way of reliably avoiding judges with limited knowledge of family law matters.

And even if you happen to get a judge for your case that is relatively experienced in family law, there’s always a very real chance that your judge will rely less on the law to make a ruling and more on his or her own personal views and biases.  Although these types of judges may be found in any area of law, family law seems to evoke this behavior the most from judges (likely because of the often deeply personal nature of these cases).

So what does this all mean for your practice of family law?

Now that you’re aware of this, there are certain measures that you can take to have it minimize the negative impact on your case.

First, be more willing to settle the dispute outside of court.  I know that I’ve already given this advice in the first installment of the series, but the possibility of getting an unpredictable judge should entice you all the more to take matters into your own hands and try to reach some kind of agreement with the opposing party.

Next, if court appears inevitable, make sure that your arguments are heavily supported by case law and statutes.  Perhaps the judge doesn’t know too much about family law, but that doesn’t mean that she doesn’t wish to learn about it – and providing copious amounts of legal background on the subject can provide a good starting point for the judge.

Admittedly, there are those judges who are set in their ways, and may not even be interested in hearing new legal arguments from you – especially if this judge is one that is likely to decide the outcome of the case far in advance based on the facts alone.

In this circumstance, it may be prudent to seek the involvement of a neutral third-party – namely, a custody evaluator or guardian ad litem.  Although you are not necessarily guaranteed a better result by taking this route, nor is there any assurance that the judge will completely abide by what this individual recommends to the court, the fact is that the vast majority of these workers are specially trained for these sort of family law disputes, and will be in a far better position to understand the reality of the family situation than the judge.

Barring special circumstances, you usually must seek to have one appointed at or near the outset of the case.  Moreover, dealing with such an individual is an art all on its own (which I will delve into further in a forthcoming post).  But having one assigned to the case often reduces the amount of work that you need to do, and generally makes your job much easier.

If, however, you are unable to get one assigned, thereby leaving you with the judge who isn’t fully relying on the law, then the advice that I’ve given previously, both in this and previous posts in the series applies:

  • Rely heavily on legal citations for your arguments: show both that your argument is strong and that it is keeping in line with the law;
  • Appear to be as amicable in trying to resolve the dispute as possible: you should appear as the one that is in court unwillingly, even if your client is the one who initiated the legal action;
  • Frame your arguments around the best interests of the child: it should appear that your client’s primary goals are to advance these interests (hopefully, these are your client’s actual goals as well); and
  • Get to know your judges beforehand so you know what you’re getting yourself in to (check out this post for more on that).

When all’s said and done, there may not be anything substantial that you can do to counter the unpredictability of a particular judge, and this is one of those inescapable realities of practicing family law.

But you should still prepare both yourself and your client’s expectations for the possibility of an unpredictable judge – especially when much of this preparation includes measures and conduct that is just good practice in family law in general.