clear thinking demonstrated by the judiciary. Time and time again, I hear persuasive and convincing arguments by skilled counsel, who offer up well-reasoned presentations for judges who are duty-bound to dispense justice. It’s an awesome process indeed. If you ever doubt the integrity of this system, I urge you to sit through three complete trials. I warrant that your respect for the North American justice system will be indelibly affirmed in the process. Really, it’s a remarkable system.
Having said all that, court can be a costly, slow, and awkward process. Judges do the best they can with the information they have, but it’s no easy task. The court can apply the law to the known facts, but legally trained judges are not omniscient and they do not practice psychiatry. They are not counselors, and they are not permitted the luxury of sympathy. Judges are paid and duty-bound to decide cases and that’s what they do. And almost every time a judge decides a case, somebody’s unhappy. Sometimes, both parties are unhappy.
When litigants give over to a judge the power to decide their future, they enter into a process that’s full of risk and uncertainty. Our justice system is not only harsh, traumatizing, and slow, it’s also very costly. In Canada (where I practice), the cost of an average divorce trial is between $25,000 and $50,000. As I often tell my clients, “I’ve been a divorce lawyer for 25 years, and I couldn’t afford me.”
There are other costs to litigation as well. Telling strangers about your life, your secrets, your desires, and your worries is upsetting. When warring spouses download their personal information to a judge or an arbitrator, the opportunity for more hurt feelings is expanded and amplified. The chance to resolve the dispute in privacy and with dignity is gone. As a result, the litigation process itself may make matters worse. I see this sometimes in my practice. It’s a situation that is played out with regular frequency. Imagine the following scenario:
The wife retains counsel because she’s in need of spousal support. All she wants is some support (alimony) for a few years so she can get back on her feet. She’s been out of the job market for a few years, and wants to retrain. Her lawyer must start a lawsuit to obtain that relief. He prepares affidavit material, explaining briefly the history of the marriage, and the career circumstances, and he describes the roles which the parties assumed during the relationship. He hopes to use these materials to persuade the court that the support is merited. As part of that process, it is explained that the wife ended her studies at university to raise the couple’s only child. The lawyer thinks this may be important. The wife’s affidavit also says that in recent years, she’s longed to upgrade her skills and return to school, but never had the time or the opportunity. It’s all pretty innocuous stuff. It is, however, necessary to deliver it to the husband and his lawyer to get the process started.
Although the allegations are not particularly provocative, the husband is upset by them. He worries that he’s being persecuted, and wonders if the judge will tag him for some unmanageable monthly sum. As a result, the husband becomes defensive. He meets with his lawyer, and they prepare an affidavit in response. (This responsive material tends to be slightly inflammatory, based on the theory that a good offense is the best defense. The lawyer wants to have a fighting chance.) Accordingly, in the material, the husband says that the wife was always a little on the lazy side, and that’s why her career never advanced. Really, it wasn’t his fault — he wished she had worked more, and contributed to the family pot. He deposes that he often asked her to return to work, but she declined his sensible proposals.
The husband’s affidavit goes on to refute the allegation that there was no time for school — and he points out that the wife always had time for secret romantic visits with the neighbor (partly because he feels that’s relevant, and partly because he wants someone else to know what she did to him). It ends with his comment that he’s exhausted and depressed as a result of her adultery, an allegation that may or may not be true, but is probably irrelevant in most jurisdictions. Anyway, the husband throws it in, saying that her infidelity has affected his ability to work overtime, and he says he’s struggling at work. He needs time to take care of his personal issues, and is no longer willing or able to work overtime. This too has a financial cost.
She responds angrily. Initially, she felt that her allegations were all relevant and “sanitized,” but her husband’s comments have hurt. This time, she deposes that he was nasty throughout the relationship — his behavior drove her into the arms of the neighbor. She says that she resisted her husband’s obsessive demand for her to perform meaningless fast food restaurant work because she knew that their ADHD child needed help with schoolwork and he was always unable to understand that. She uses unpleasant adjectives to describe his character flaws. She closes with a shot about how he’s tired because he’s overweight from beer consumption and watching sports on TV (something he did all day, every weekend) and that he’s never been any good at getting available overtime.
Now the nastiness takes on a life of its own, and the course is set. The mother, who initially only wanted a little spousal support, is embroiled in a complex web that involves escalating legal expenses and revolving accusations. With each passing day she remembers something else that should be included in yet another affidavit, and she’s on the phone with the lawyer twice a week. The husband cannot focus on work, and is considering stress leave. He starts to gather documents to prove what he says, and drops them off at his lawyer’s office. There are more documents each week.
Soon, this little brush fire will spread. In a moment of extreme despair, the wife may even tell their daughter about the problems and Dad’s allegations, and then, because she needs support for her position, she will involve the child in the dispute. The child will want to support her mom, because all kids say what they believe their parent wants to hear. Accordingly, the daughter may say that she doesn’t want to see her father, thinking this will please her mother. Soon, the father begins to fear parental alienation.
Meanwhile, the father will attempt to garner sympathy by sharing information about the spousal infidelity. He’ll tell his friends, and maybe the wife’s sister (he’s always liked her). The husband decides that if there’s going to be a war, it will be necessary to hide some of the savings, and soon this brush fire becomes a raging inferno. The lawyers gobble up retainers at breakneck speed, and as the stakes increase, both litigants are beyond the point of no return very quickly. The equity they once had in their family home will be squandered on legal fees, transcripts, and document production. In the end, everyone loses.
At the end of this case, both spouses are miserable and broke of course. Their child is confused and unhappy. Had the parents settled, their daughter could have attended college. Instead, the lawyer’s kids get a master’s degree. Really, it’s survival of the fittest in this melee.
What has occurred in this hypothetical example is a disaster which is played out regularly in law offices and courtrooms every day. It starts rather simply, with a short affidavit in support of a motion for one form of relief. Soon, the dispute expands, and the allegations grow like a life-threatening cancer.
The affidavits, which start the process off, are particularly toxic because of the procedure — they are “sworn” and usually “served” (delivered by a process server). And because the words of the affiant (a person making an affidavit) are sworn to as part of a Jurat (a certificate or place on the affidavit stating the time, place, and witnesses of affidavit) and given under oath, they are particularly stinging. Nothing hurts like the accusations of a spouse, sworn and shared.
Litigants know that the material is seen by at least several lawyers, secretaries, and court staff, and they may even believe (rightly or wrongly, depending on where the case is proceeding) that the lawsuit is a matter of public record, to which the world has access. Lawsuits, generally, are not secret.
In this example, the cost of the litigation grows exponentially with each new event. It’s not unusual for the litigants to
