Is It Better to File My Case First?

14 Monday Jan 2013

Posted by in Court, Filing Process

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Author:  Clark R. Ward, Attorney-at-Law

Once a case is filed, it triggers a 120-day window to have a copy delivered (served) on the opposing party.  If that doesn’t happen, you have to file all over again and pay another filing fee. Is there an advantage in filing first?  Before a case is filed, then either party has all the time in the world to get copies of records, transfer assets and emotionally prepare for the case to begin.

Whoever files first has usually made significant emotional closure on the relationship and can think more clearly and objectively.  The non-filing party may not be either emotionally or financially ready to deal with the case, but they must because there are only 20 days to file a response to the initial court documents that are served on you.  Sometimes getting papers delivered by a constable comes as a complete surprise.  Even if it isn’t, there is the immediate high tension of wondering what is being asked for.

You will likely be so stressed at getting served legal documents that you won’t be able to understand the words glaring right in front of you.  On top of that you will likely have to scramble to get copies of important records to build your case in response, while the person who filed first has had all the time in the world to do so before they filed.

At a time when your whole world may be turned upside down, you must need to think as clearly and objectively as you can, but the shock may prevent you from doing so. An experienced lawyer can be that objective voice for you and help you navigate through the difficult process.

The party who files first also presents their case first at trial. That can be important because you have the initial and immediate attention of the judge. It’s like making the first impression.  The other party, meanwhile, cannot help but be on the defense before they present their case in rebuttal.  I’ve seen (and done) a strategy where the party who starts the hearing first takes up most of the time, leaving the responding party with no choice but to present an abbreviated case.

What if you are not sure?  It’s okay to wait, but just be aware that the other side may already be planning ahead and may force you to respond to their papers when you are not ready.

How do you prepare for what may be inevitable?  Consult a good, experienced lawyer.

For More Information:

Clark R. Ward, Attorney-at-Law

Clark R. Ward Family Law
www.clarkwardlaw.net
6925 Union Park Avenue, Suite 550
Salt Lake City, UT   84047
(801) 561-4400

Email:   clarkrward@clarkwardlaw.net

A Reality Check on Going to Court

07 Monday Jan 2013

Posted by in Court

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by Clark R. Ward, Attorney-at-Law

Among the most common assumptions parties make in any court case is that you are guaranteed a “day in court,” and that your judge has no prejudices and will always be as interested in your case as you are.  Let’s set the record straight about some realities of going to court.

  1. Your right to a “day in court.”

    There is no law anywhere that guarantees you a day in court.  It’s an idea that has stuck around forever but doesn’t really exist.  Your right to a day in court in a civil case is defined by rules of civil procedure and the discretion of the judge and his staff, who determine how much time they will grant you to present your case.  Judges are people too.  They get tired of hearing case after case after case.  They have more cases to be heard than time to hear them.  So, they have to figure out how much time your case should take to be heard.To do that, the court system intentionally has tiers to encourage parties to settle their case and avoid going to trial altogether.  Mediation is the term used to bring parties to the negotiating table out of court, either with or without their attorney, to discuss each issue and try to resolve as many of them as possible.  This is not an effort by judges to dodge their sworn duty to hear cases.  Rather, it allows parties to communicate and negotiate to see if they can come up with a reasonable solution on their own.  Why is this a good idea?  Because research has shown that agreement made by the parties themselves are followed more often than when a court tells you how it’s gonna be.When a judge gives you a ruling you don’t like, you will more likely try to figure a way to avoid it than to follow it.  So, you wind up spending more money going back to court to defend your noncompliance or for enforcement of the rulings.  Judges and commissioners don’t like people returning to court for noncompliance.  There are pre-trial conferences, status conferences, mandatory mediation conferences that are set to bring the parties to the bargaining table to try to reduce the issues in dispute or resolve them altogether.No two mediators are alike, either.  You have to know who is best for your situation.  Only an experienced lawyer can help you.  I’ve been to hundreds of mediation conferences with many mediators of varying personalities, strengths and weaknesses.  I’ve been a mediator myself.Even when you finally get to court, there is generally not enough time to explain things in sufficient detail to your satisfaction.  That’s because it takes longer to present evidence and sworn testimony than you could ever believe; you don’t have enough money to retain your attorney for an unlimited amount of time; or because the Court will only grant you a limited amount of time to present your case.

  2. Judges are free from bias and prejudice.

    Like many of us, when they think they see a pattern repeat itself, they start forming conclusions and tell themselves:  “Ok, I know where this is going, so let’s get this over with.”Think about it.  Your case is the only one (or perhaps two or three) you have ever had to deal with.  They, however, hear hundreds of cases just like yours. The judge’s natural inclination is to get to the bottom of things and move on to the next one.It would be naïve to think that judges don’t share some of the pain and suffering that you are going through.  They get divorced.  They make stupid human mistakes, they have life experiences that shape their thinking.   If you ask 100 different judges to comment on the same question, how much uniformity do you think you’ll find? Very little.

So, you ask, why go to court at all?

It may, in fact, be your only alternative and a last resort when nothing else is working for you.

Judges try their best and they want to get it right, most of the time.  But they don’t always. Sometimes they are abrupt, sometimes they appear to be a thousand miles away—and they may actually be.  Sometimes they would rather be anywhere else, just like you.  By far, though, most of the time judges and commissioners are attentive and try to be fair. Many judges I have known deliberately work at showing as little body language as possible so that no one gets an idea how the judge is, literally, leaning or thinking.  It’s a good thing.  But they do have prejudices.  They are not machines that are without feeling, personal life experiences and bias.  Knowing that, there are some judges that I want to avoid at all costs in one setting while hoping they will be assigned to my case in another.

The conclusion, then, is to accept some hard facts about going to court.  It’s risky, expensive and the outcome is uncertain.  Mediation and out of court negotiation avoid that uncertainty, but it comes at the price of making compromises.  If the other side is hostile, combative and is determined to outspend you and take your case to trial, you have little choice but to lay your case before a judge and hope he or she sees things your way.

Seeing that it is your life that will be impacted for years to come, would you trust that to inexperience?

For More Information:

Clark R. Ward, Attorney-at-Law

Clark R. Ward Family Law
www.clarkwardlaw.net
6925 Union Park Avenue, Suite 550
Salt Lake City, UT   84047
(801) 561-4400

Email:   clarkrward@clarkwardlaw.net

©2012 Clark R. Ward