EP 196: Why You MUST Know Your Judge Before Going to Divorce Court

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Thank you for listening! Find a transcript of this episode below.

This may be the one of the most important episodes that I’ve ever recorded. I spent a good chunk of my time in December at a conference for lawyers and a lot of the top family lawyers in the United States were there. And one evening we all went out to dinner and we spent three or four hours together, just discussing what’s going on and what’s going on in everyone’s practice. What they’re thinking about, whatever. It was fascinating because all of these lawyers, they’re the top in their respective cities and states, from California to New York to Florida, and everywhere in between. They all universally had one big issue. One very important issue that they wish that their clients understood so people like you listening to this podcast.

They wish that everyone would get a better handle on and understand as it pertains to the divorce process. And what was that? That was you need to know who your judge is and how they think about decisions. Many times you come from this perspective thinking, well because we haven’t come to a settlement I think we’re just gonna fight it out in court and that’s gonna lead to a judge listening to everything I have to say. They’re going to take into everything into consideration my ex-spouse has done over the past year or 10 years or 20 years or whatever the case may be. Ultimately if they just hear my story that you are … That that judge is going to listen, take it into account and rule in your favor.

It turns out that’s not the case. What you really need to understand is most of the time if you can avoid court, you should. You need to understand how judges think, how they react, and how unique judges are and how much of a gamble going in front of a judge is for most people. I was talking with these lawyers at dinner and as I said we were together for three or four hours and it was just amazing how much time we talked about the judges and really a few issues came up when it comes to judges and thinking about what might happen in front of a judge. I wanna get into a few of these issues. The first is that many times in your county court you don’t have a family law specific court. So if you are in certain … Whatever county you’re in, where your courthouse is, that county or the judge that you might see in a given day might have 10 other different types of issues that he or she may be dealing with on that same day.

That judge might be looking at traffic ticket cases. They may be looking at a criminal case. They may be looking at a business dispute. They may be looking at a neighbor dispute. Oh yeah, and then you stroll in and you wanna talk about this family law issue that you’re having. Your divorce, this hugely important issue. But then as soon as you walk out of the room they’re thinking again about the next five traffic cases. Then they have something with the police officer. Then they have some sort of meeting with attorneys and the point being is, they aren’t just focused on family law often times. You can’t expect them to know all the intricacies of the law, all the ins and outs and really understand and be able to critically analyze all of the things that you want them to think about because that’s not their primary job.

They’re either appointed in some places or elected or whatever the case may be. They have so many different responsibilities. Your case, even though it might be the center of your world is one of many things that they are dealing with and looking at on a given day. On top of that, there are some counties that do have family law courts. But what happens often times is what many of these attorneys were speaking with me about is that even when you have a family law court those judges often times don’t come from a family law background. The ones that do, they might be there for a year or two before moving on to their next appointment or the next step in their career or different court entirely because family law issues can be exhausting and very tough to deal with day in and day out. So there’s a lot of turnover there. So the first thing you need to understand is not all judges specialize in family law and the ones that do often don’t have that much experience in family law.

So you shouldn’t necessarily get your hopes up. The second, is I kind of eluded to this in the first point but judges don’t have a lot of time. Almost in every courthouse across the country judges are overworked, underpaid and understaffed. And actually I’m gonna hold off on the underpaid part for a second. But I will say overworked. And so judges have an enormous case load of people that they have to get through on a given day and it’s very tough for them to negotiate and deal with every intricacy of every case on a day because you might be one of 10 cases they’re seeing that day. And maybe 50 different people they’re seeing that week. Then maybe one of 200 people they’re seeing that month. It could even be worse than that in terms of the numbers. And so trying to get them to really I don’t wanna say care about you, ’cause not that they don’t care but really be able to have the ability to get into the in’s and outs from any judges is exceptionally difficult and nearly impossible.

Otherwise they’d be working 24 hours a day, 7 days a week and still not get through the amount of work that’s on their plate and that’s being required of them. Therefore it puts them in a position where you don’t get to share all of the facts and consider all of the facts that are relevant to you. The third thing is that judges have bias. Judges are humans. I mean often times I hear from you and we talk and it sounds like you feel as if the judge is going to be your savior. You almost speak in terms like that. That’s just not the case. I’ll use an interesting example from Dallas ’cause I’m based in Dallas and I know a lot of Dallas family lawyers and I get to speak with them pretty clear. And I have a decent sense of the Texas court scene, you know I’m not there every day by any means but one of the things that’s fascinating is in one of … I think in Dallas county, there’s something like 32 judges or something to that effect, I don’t remember the exact number off the top of my head.

But point is if you were to go in front of, you could be assigned any one of those 30 or so judges and on top of that is you could end up with 30 completely different results from any one of those judges on any given day. Which means even though there is a family law, even though there are facts to the case you could present those same facts and those same laws to each one of the judges and end up with a totally different outcome. It could be very much in your favor, it could be very much opposite of your favor. The point is, is that you don’t necessarily know what that judge is going to do and how they’re going to rule. Judges are people and they have certain things that they like and they dislike. I call them bias.

You might go in front of a judge … A judge might not like your lawyer. And because they don’t like your lawyer for whatever reason, they rule against you. Or it may be the case that a judge doesn’t like what you’re wearing. Or it could be the case that a judge tends to think that the mom should have primary custody and most of the time, so that’s how they think about decisions. And so even if you’re the father and you should probably have primary custody and maybe even during the divorce you had temporary custody of your children, the judge might say, “Well I think it’s better for the mom,” and therefore the mom gets it. And you’re like, “But wait a second.” You’re left totally confused ’cause in your situation that just wasn’t the way things are working or it could be the exact opposite. Is the judge might say, “Well I think the father should have primary custody.” Or a judge might say, “Hey, you know what. My default position is that whether or not it’s good or bad, custody should be split 50/50.”

And you are SOL as we say is, “shoot out of luck.” If that is the bias that your judge has even if it’s not appropriate for you. Then the fourth thing that is very important is that judges often make decisions on things that are totally irrelevant. What do I mean by that? Well it’s interesting, I don’t know if you ever watched one of those … I’m going to switch from family law to the criminal law for a second. But if you ever watched television and you ever watch one of those shows that’s like what happens after a big jury verdict in the courthouse. So if someone gets committed for a crime of if someone gets acquitted from a crime and they go and interview the jurors and they’ll say, “Juror #7, why did you say that that person was guilty and you gave them the death penalty?” And the juror will go, “Well I knew when he walked in that room he was a bad guy.” Then the interviewer will be like, “Well but, there was this evidence that says he wasn’t even in town the day of the murder.” And the juror will say, “Yeah, well. He must have done something. That’s why he’s in front of here, right?”

You’re just like, well wait a second. That has nothing to do with the facts of the case. Unfortunately in the family law world judges can often be the same. Judges can walk in and they’ll say, “Oh, well I saw this piece of evidence and therefore I’m just gonna vote this way and this is how we’re gonna split things.” Or if you have something super complicated they might not wanna think about it and so they’ll just make a decision based on what feels right to them. Whether the facts support it or not. Some judges … You know, I caution myself when I was talking about pay increase or don’t get paid enough. Some judges, becoming a judge is pay increase for them. That’s why they became a judge and they get paid more to do less work often times. Or at least to have a shorter workday. ‘Cause their legal careers weren’t necessarily going the way that they thought they would.

You just never know the motivations of the judge that you’re going in front of. And you never know what is going to resonate with them. Maybe they grew up in a single parent household and therefore they identify with one parent more than the other. You might not know that going in. So the decision they come to might not make any sense to you or to anyone but it is because it is what is it, because that’s what you signed up for and that’s what that judge believes. And so it’s something that you really need to think about. So what’s the point? The point is this, is I have nothing against judges by any means. That’s not the point of this episode. But the point is this, is that most cases settle out of court. There’s a reason for that is because there’s a lot of things you can solve and come up with most of the time a semi-reasonable agreement. If you settle out of court.

Now it’s not always going to be the case, but your position shouldn’t be, I’m going to fight this out and I want to take this all the way to trial and that’s the way things are going to be. It’s not necessarily going to be beneficial to you. Going to court is a gamble and it can be a very big and very expensive gamble. I was speaking with someone just yesterday and I said, “Look. You, instead of going to court, you may as well just put $100,000 on the roulette wheel.” Your odds are going to be better then … And having a good outcome rather than you going in front of a judge.” Because you’re just taking up … This person was very close to a settlement agreement but just couldn’t quite get over the finish line and they’re now thinking about spending a bunch of money on an expensive trial and I was like well, that’s a waste of money. Just go to Vegas, gamble it, put it on black and call it day because that’s basically what you’re doing in this case rather than just agreeing to something that may not be perfect but it pretty dang reasonable from what they had said.

So you need to really be careful about whether or not going to court is good for you. Now sometimes you’re in a position where you have to. It just is the case, your spouse is unreasonable and everyone’s gonna be better off unfortunately if you go to court. My point only is that you should not use that as your default position. Because court is a very dangerous game that you’re playing and very expensive gamble that you may be making. Judges are the ones who are in charge of this process when you’re in front of a court. And judges aren’t always going to consider all of the things that you have in your head in terms of becoming a final, in terms of becoming a great arbitrator towards your case. Some judges out there are great but you need to really understand what’s going on in your local court and really understand what judge you may get assigned. And how that judge feels about certain issues and how they generally like to rule on certain things and if you’re going to be in a good position or a bad one by going in front of this judge.

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