MAKE SURE YOU HAVE REALISTIC EXPECTATIONS: In court, the judge will never really know what is going on in your case. The court’s job is to decide narrow legal issues based on limited permissible evidence. Hearings are mostly short and to the point. In real life, court is not like most court cases on television or the movies – or even the news. Trials are rare, as most cases are resolved by hearings and/or settlement by agreement of the parties – often with the help of knowledgeable attorneys.
DO NOT EXPECT VALIDATION OR VINDICATION: The judge or jury does not decide your character as a person – or who has been “all good” or “all bad.” The court’s job is only to resolve narrow legal issues, based on the proper burden of proof. For example, a criminal court must find someone guilty beyond a reasonable doubt, whereas a civil court may decide a case based on the preponderance of the evidence (which person’s evidence is slightly stronger). This is why some people are found not guilty in criminal court and liable in civil court for the same behavior.
AVOID EMOTIONAL REASONING: When people are upset, our perceptions can be distorted temporarily or permanently. Our emotions may cause us to jump to conclusions, view things as “all or nothing,” take innocent things personally, fill in “facts” that are not really true, unknowingly project our own behavior onto others, and unconsciously “split” people into absolute enemies and unrealistic allies. This happens at times to everyone, so check out your perceptions with others to make sure they have not been distorted by the emotional trauma of a legal dispute and related events. Many cases get stuck in court for years fighting over who was lying, when instead it was honestly believed but inaccurate emotional reasoning, which could have been avoided from the start.
PROVIDE THE COURT WITH USEFUL INFORMATION: The court does not know you or your personal issues, except for the information that is properly submitted to the court. Make sure to provide important information, even if it is embarrassing. The court cannot sense the behavior of each party. If you have been abused, the court needs sufficient information to make helpful decisions. If you hold back on important information, it may appear that abusive incidents never occurred and that you are exaggerating or making knowingly false statements. And if you are accused of actions you did not take, the court will not know this information is inaccurate or false unless you sufficiently inform the court.
BE CAREFUL ABOUT UNVERIFIABLE INFORMATION: The accuracy of the information you provide to the court is very important. Based solely on what you say in declarations or testimony in court, the judge may make very serious orders regarding the other party and yourself. If it later turns out that you made false or reckless statements — even if you were well-intentioned — there may be negative consequences, such as sanctions (financial penalties), or you may lose your case entirely. Emotional claims without supporting information can make you lack credibility, and in court credibility can be the most important factor.
TRY TO SETTLE YOUR CASE OUT OF COURT: Today there are many alternatives to going to court which can be used at any time in your case, including Mediation, Collaborative Law, negotiated agreements with attorneys, and settlement conferences assisted by temporary settlement judges. The expense for each of these is much less than for court hearings and prolonged disputes. You have nothing to lose, and you can still go to court afterwards if you do not reach a full agreement. By trying an out-of-court settlement, you can limit animosity and protect yourself and those around you from having to participate in court battles for months or years.
This article will soon be published in the Oregon Law Review, Vol. 93, 911. Thanks to the review for permission to republish. INTRODUCTION In 1970, some forty-five years ago, Steven...By James Melamed, J.D.
“The Generous Prenup: How to Support Your Marriage and Avoid the Pitfalls” Book by Laurie Israel, Esq. Integrity Registry Press (2018) 384 pages; $23.99 Book Review by John Fiske:...By John Fiske, Laurie Israel