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Expecting to Get Justice by Going to Court

Many people naively believe that, if they can just get the judge to listen to what their ex did, the judge will make things OK. Well, it doesn't work that way. Why not?

In some jurisdictions, judges are appointed as part of a political process and are therefore not answerable to the electorate, other than possibly having to run in infrequent "retention elections." Their biases, values, and belief systems are often more in sync with the political cronies who control the system than the people who appear before them. Even judges who are elected come with no guarantee of open-mindedness. In fact, many judges who routinely hear divorce cases become jaded and callous, adopting the attitude that if two grown people cannot resolve their differences without resorting to the courts, then they deserve whatever result the system decides to impose.

Because there are two sides to every story, judges often find it impossible to figure out who is right or who is telling the truth in the short time they have to deliberate. Instead of trying to figure out the truth themselves, some judges look for a way out. Some will hand the matter off to a social worker or psychologist to "evaluate" often at great expense to the divorcing spouses.

Just as often, a judge will apply direct pressure to the lawyers and litigants to work it out among themselves. Sometimes a judge politely asks the parties involved to work it out themselves. It is not uncommon, though, for divorce judges to lecture, belittle, shame, threaten, and punish litigants in an effort to get them to work it out or to get one party to give in to the other. Some judges are purposely irrational, unpredictable, inconsistent, rude, or insensitive, perhaps in the hope that the parties will be sufficiently cowed to agree on a resolution rather than taking the risk of letting the judge decide for them.

Take the case of Roslyn Smith, reported in the Maryland Special Joint Committee on Gender Bias in the Courts report issued in 1989. Ms. Smith sought help from the court system after her husband threatened to kill her with his gun. She told the committee:

The thing that has never left my mind from that point to now is what the judge said to me. He took a few minutes and he looked at me and he said, "I don't believe anything that you're saying". "The reason I don't believe it is because I don't believe that anything like this could happen to me". If I was you and someone had threatened me with a gun, there is no way that I would continue to stay with them. There is no way that I could take that kind of abuse from them. Therefore, since I would not let that happen to me, "I can't believe that it happened to you."

I have just never forgotten those words.... When I left the courtroom that day, I felt very defeated, and very powerless and very hopeless, because not only had I gone through the experience which I found to be overwhelming, very trying and almost cost me my life, but to sit up in court and make myself open up and recount all my feelings and fear and then have it thrown back in my face as being totally untrue just because this big man would not allow anyone to do this to him, placed me in a state of shock which probably hasn't left me yet.
Or take the case of Kathleen Murphy, a bank teller who lost custody of her five-year-old son to her former husband, a lumber company executive. According to newspaper reports, the judge awarded her ex-husband exclusive use of the family house and ordered her to pay him $95 per month in child support, even though at the time she was only earning $7 per hour. Ms. Murphy told the Baltimore Sun, "After you put your faith in the judicial system for your whole life and something like this happens to you, you go home and suffer in silence."

Or take the case of Vivian Archie. Although the Tennessee state judge handling her custody case was convicted of sexually assaulting her, his conviction was later overturned. A federal judge who disagreed with this result explained why:

The theory of the felony counts was that the [state judge] willfully-and repeatedly used the powers of his judicial office to coerce a woman named Vivian Archic into fellating him on pain of losing her child. Mrs. Archie was physically restrained throughout these assaults, according to her testimony, and she was afraid to scream for help because of the [state judge's] implied threats to deprive her of the custody of her little girl. The jury evidently thought that Mrs. Archie was telling the truth-and if the jury was right in this, it is hard for me to imagine a more clear-cut deprivation of liberty.

People going through divorce often see their own position as the "right" one and cannot believe a judge won't see it the same way. But a trial is not about the truth; it is the telling of a story. What the judge hears will depend on how good a storyteller your lawyer is and how convincing you and your witnesses are. If you are stiff and wooden or overly emotional and hysterical, the judge may not believe you or may sympathize with your spouse. The judge may have gone through a messy divorce herself, and you may remind her of her ex-husband. The judge could have a very negative reaction to you for some reason, and you may never know why. Although judges are supposed to be trained to put aside personal prejudices and biases, is this really possible? You must realize that whenever you turn a decision over to a judge, as opposed to reaching agreement with your spouse, you are both handing over control to someone else, someone about whom you know very little and over whom you can exert only as much influence as your lawyer can muster.

US. v. Lanier, 73 E 3d 1380 (1996). The U.S. Supreme Court also disagreed with the overturning of the judge's conviction and sent the case back for reconsideration.

Your lawyer may try to put certain things into evidence before the judge that are excluded for technical reasons. For example, things other people have told you may be excluded because they are hearsay. Some things may be ruled inadmissible because the judge finds them to be irrelevant. And certain people may not be willing to get up on the witness stand and testify against your spouse under oath because they are afraid of repercussions. What actually comes out at a trial may not bear any resemblance to the way things really are.

Let's suppose, though, that your lawyer does a good job, and all the evidence you wanted to put before the judge for consideration is admitted. You succeed in proving that your spouse, a manic-depressive taking lithium, has a house full of guns and a stockpile of food she plans to eat while living in the underground bomb shelter she insisted on building for use when the roving bands of social misfits take over the country. It may seem crystal clear to you, and everyone you know, that your wife is a nut, but don't be so sure the judge will necessarily come to the same conclusion. You may believe your gun-toting, manic-depressive wife is not a competent parent, but the judge may believe that everyone has a right to bear arms and that, as long as the manic-depressive is taking her medication, she can parent effectively. The judge may view the bomb shelter and food stockpile as legitimate precautions in a world where anything can happen. There are two ways to view every story.

Because judges are so unpredictable, if your legal position is less than clear-cut, it might make sense for you to compromise with your spouse and settle the case. You will not only save on fees but also avoid the risk of getting a bad ruling from the judge.

Even if you win your case and are totally vindicated at the trial level, your spouse can always appeal, thus creating more delay and expense, and possibly win the appeal. For this reason, even if you know you are right, it sometimes makes sense to give up a little and settle, so you can have the fight over sooner, more cheaply, and on terms you can live with.

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