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Dances with Judges: Three ways your lawyer will handle the uncertainty of court proceedings 

Dances with Judges: Three ways your lawyer will handle the uncertainty of court proceedings 

Going to Court can be unpredictable.  Sometimes what your lawyer says will happen comes to fruition. It might be just like your lawyer wrote the script and everyone played their part perfectly.  Sometimes the opposite can be true – nothing happens that was predicted, and things happen that no one would have reasonably predicted.  

One might reasonably ask – how can that be?

In law, the government drafts and provides statues that set our understanding of how issues may be decided. Courts decide cases and create case law that sets precedent as to how the statutes apply to specific fact scenarios.  Looking at the statutes and the precedent should create an expectation as to the outcome or disposition of any issue.  Shouldn’t this eliminate any element of the unknown from court proceedings?

In short: no.  The reality is that there are many other considerations that can impact the outcome.

The Courts are manned by people. Artificial intelligence does not rule (at least not yet – there is no “app for that” in place at the Court House).  Judges ARE people too. Every person, including every Judge, has a unique history, context, thinking style, personality, etc., that they bring to bear in making their decisions. 

In family court, Judges have a fair amount of discretion to exercise over their decisions. Their unique history and the other factors outlined above informs how they exercise that discretion. These factors can make it difficult to predict what the outcome of a matter may be on any given day. 

So, understanding this level of uncertainty, how can your lawyer prepare you for an upcoming court appearance? 

  1. Settlement. Keep the ball in your court. 

When you walk into a courtroom the final outcome of the matter to be decided is out of your hands. The Judge might adopt one parties’ position entirely or they might make a ruling for an outcome that is what neither party would want. 

Settling matters outside of court ensures that both parties in the dispute have a say in the final outcome. No one knows your family as well as you do, no one knows what is in the best interests of your children as much as you do – take that knowledge and come to a compromise position that reflects those needs, not one that reflects a Judge’s idea about what those needs are. 

  1. Prepare for the worst. Hope for the best. 

Our lawyers are always interested in what Judges have to say at conferences or during continuing education seminars. These ‘Views from the Bench’ give us some insight into the challenges they are facing but also give us tips on what they are looking for. A few years ago, Justice April Grosse, now sitting on the Alberta Court of Appeal presented to the Canadian Bar Association Family Section, emphasized that good advocacy is telling your client about all the potential possible outcomes in court including the worst case scenario outcomes. This will allow the clients to properly weigh the pros and cons settlement (see point 1, above) and will allow clients not to be blindsided if that worst case scenario materializes. 

We would echo Justice Grosse’s sentiments here. Your lawyer would and should explain the full range of outcomes to you. They don’t do this because they are not prepared or not confident, and they don’t do it because they are aligned with the other side. They want to properly set your expectations, advise you of the risks and allow you to make the appropriate decisions going into court. 

  1. Be prepared to turn on a dime.

Most experienced lawyers can tell when the Judge is not ‘buying what we are selling’. In fact, the author of this article has had two memorable experiences where, during her oral submissions, the presiding Judge ceased to read the materials or make notes and just gazed at her with a look of incredulity. Needless to say, the outcomes were not aligned with her hopes. 

If, in the exercise of their discretion or because of the influence of the factors set out above that inform a Judge, they aren’t onside with your lawyer’s argument, your lawyer may make a sudden move or suggestion that alters the course of the proceedings. This could include backing off one particular argument, changing positions on a specific topic or even trying to change the forum for the decision. 

One example of that would be to ask for the Judge to divert the matter to an Alternative Dispute Resolution method. In King’s Bench, for example, parties may attend with Resolution Counsel who will help the parties work toward a mediated agreement., if the issue may ultimately require further court appearances and you it may be better to address everything at once, you can ask the Judge to divert the matter to a 4.10 Case Conference which contains an element of settlement discussions but also sets parties on the path for trial. If the matter involves children, it may be appropriate to ask for them to be appointed counsel and to revisit the issues once that information is available. 

Dances with Judges: Three ways your lawyer will handle the uncertainty of court proceedings 

By being flexible in their advocacy, your lawyer can ensure that you have the best chance to be heard and the best chance for an outcome that is in the best interests of your family. 

Although outcomes are uncertain, attending court is necessary in some situations. If you have any questions about preparing for court, please contact us and we would be happy to share the ups and downs of our experiences.