The Adversary Legal System
The adversary process lies at the heart of the American legal system. It has a long and deeply embedded history. The primary assumption is that a judge or jury acting as fact finder will "find" the "truth" based on the evidence presented in the conflict by the lawyer-advocates of the opposing adversary parties. This basic assumption shapes the entire legal system and culture, including the training of lawyers, the nature of our courts, and the way we resolve or conflicts.
The primary function of the lawyer is to present the client's case in the best possible light. This central premise of the legal system assumes that the trial is the final act of the game. That is, the decision of the jury overcomes the dangers and distortions created when two adversary lawyers present two radically different versions of the truth. Now here is the problem: In about 97% of all divorces, the case never goes to trial. Less than 3% actually culminate in a trial resulting in a judgment by a judge. The overwhelming majority of cases are resolved by a negotiated settlement prior to trial.
This is a dramatic inconsistency. The entire system is designed for trial and, indeed, depends on the trial to find the truth. But the primary product of the adversary system in divorce are settlements, not trial.
Another contradiction concerns the issue of responsibility or fault. One of the primary purposes of the adversary system is not simply to find the truth but also to answer the question "Who is guilty?"
Fifty or so years ago, this system applied to divorce also. The plaintiff had to prove that the behavior of the defendant spouse was so inappropriate that it was a profound breach of the marriage contract. Divorce was available only on fault grounds, and only to the victim. The deserter or the adulterer could not get a divorce. The system decided who was at fault and then punished the guilty party. Although the adversary system has not changed, modern divorce has. The role of fault has been dramatically diminished. Modern no-fault divorce, now adopted in some form in nearly every state, eliminated the requirement that fault be offered or proven as a basis for divorce, and it allows nonvictims to get a divorce.
Some states retain traditional fault grounds in addition to no-fault. But very few divorces are settled on the premise of punishing the wicked and rewarding the victim.
Notwithstanding, the change in the way fault is defined, the courts do not correspond to the way people feel about fault and divorce. Very few divorcing people really believe in no-fault as a concept, finding much greater consolation in the belief that their spouses are to blame for the divorce. Although the adversary system initially promises vindication, it disappoints in the end because there is no finding of fault and no emotional exoneration.
Our courts are much too busy coping with a flood of litigation to pay much attention to marital fault. Yet other forms of conflict resolution such as mediation have not yet taken hold in divorce. The organized bar does not widely support alternatives to litigation. The result is that litigation is the sole alternative for resolving most divorce cases even though it results in a fundamental contradiction. The adversary system, designed for trials, depends for its survival on settlements.
Although only 3% or less of all cases go to trial, court calendars are packed. Were this to increase only a few percent, the system would be unable to endure or to cope. A couple ready for trial, having already endured years of waiting and exceeding expense, finally gets to court for this day of judgment only to be disappointed and disillusioned when the judge and their lawyers compel them to settle before their case is heard. It is far from unusual for a lawyer who handles a hundred cases a year to try only one or two.
Most settlements produced at the courtroom door tend to be deficient settlements. The fighting spouses settle because they fear losing control to the court or because they are intimidated by the thought of trial. The settlement is not reached through mutual understanding or consideration or mutual needs. It is not surprising then, that about 50% of all settlements break down, bringing the couple back to court for years following the divorce.
Although the adversary system is an outmoded, inefficient means of achieving a divorce, it is not possible to get a divorce without some contact with the system. You will better able to use and control the system if you know something about how lawyers are trained and taught to think and behave.
Lawyers are trained to be advocates and adversaries. Good lawyers win for their clients. They are not trained to care particularly whether their client is guilty or innocent or whether their client breached the contract. A lawyer who gets his or her guilty client acquitted or who succeeds in helping his or her client successfully breach his or her contract is a winner and, hence, a good lawyer.
Under this system at its best, the lawyer's image is that of a crusader for justice, the lawyer who never rests until the innocent client or worthy victim has been vindicated. At its worst, the lawyer's image is that of a cynical shyster, out to beat the system on behalf of whoever can pay the most. But most lawyers are neither knights in shining armor nor crafty villains. They are just practitioners of their trade of advocacy.
Advocacy creates a sense of justice for lawyers that is different from a layperson's opinion of justice. Substantial justice, the justice that prevails when the guilty are convicted, is the domain of judges and juries, not the lawyer-advocate. What concerns lawyers most is procedural justice.
The adversary system has an elaborate set of procedures to make sure that neither side takes unfair advantage of the other. Many constitutional protections, such as the Fifth Amendment, are designed to ensure fairness in criminal prosecutions. Rules of evidence, rules of discovery, rules of court, are all procedural safeguards to insure fairness in the adversary system.
Lawyers are observant with procedures often to the dismay of their clients, for procedural requirements make for protracted and exorbitant divorces. I have witnessed lawyers spending thousands of dollars of their clients' money on procedures intended to discover hidden assets that could not possibly be worth enough money to cover the cost. But the fear that the other side might get away with five dollars' worth of defraud is enough for some zealous lawyers to justify spending a hundred dollars to preclude it.
A second problem of the legal culture is that it tends to exacerbate rather than curtail divorce-related dissension. I have often found when mediating a divorce for a couple locked in litigation that the husband and wife are unaware that their positions are actually quite close. They can be a few dollars apart but still be fighting in court. Most lawyers, trained as advocates, tend to emphasize the clients' divergent interests. They do not encourage or emphasize the common or convergent interests of the couple. Yet divorcing people have many things in common, the most important usually being the children. These common interests that could provide a basis for cooperation are often ignored by lawyers, especially by those who revel in their identities as fighters.
Lawyers are trained to approach each case as if it is to be a competition to the finish, as if the case will go to trial. Their concerns for procedure and their postures as combatants compel them to prepare for trial even though they anticipate to settle out of court. This people, is truly a sad misuse of time, energy, and money.
Divorce is at least an emotionally charged process. The feelings are intense, and the stress is excessive. Lawyers are trained to cope with legal events and procedures and to avoid emotion in favor of fact. Most lawyers have had little or no formal training in human development, child development, or human relations. What most lawyers do when faced with the emotional issues of divorce is to dig even deeper into procedure, rules, and adversary relations. Your lawyer is disciplined to argue your position, even if your position is erroneous.
In the process, your lawyer feeds your anger, distrust, and disappointment. Your feelings of emotional betrayal may get converted into conviction that your spouse can never be trusted. The"bad" husband or wife becomes the "bad" father or mother. Such distortions justify all sorts of protective court procedures. This built in tendency for lawyers to stress differences, coupled with their obliviousness to emotional processes, is one reason the dispute get out of control.
I have had many experiences with clients who came in thinking they had to have a custody battle when all they needed was some reassurance that they would not lose their children if custody was with the other parent. I don't mean to imply that lawyers deliberately cause such contention. But many lawyers are not trained or temperamental enough to emotional issues to successfully navigate their clients away from custody battles.
Divorce is painful no matter how you approach it. The choice you must make is whether you are going to give in to the understandable impulses that make it more agonizing for you or whether you are going to struggle with the system and yourself to make it work for you over the long term. Most couples can go either way. There is a period early in the divorce process when you decide whether you will divorce decently or poorly. My argument with the legal system is that it pushes you in the wrong direction, encouraging and reinforcing your worst impulses rather than your best.
The critical human task for every divorcing couple is to take responsibility. Taking responsibility for the end of your marriage is the imperative for understanding your own behavior, your own contribution, and your own role in the process that led to the separation. Your active involvement in solving the problems sets you up to take responsibility for your future.
I use the word responsibility here in the sense of taking control and taking charge. In divorce, taking responsibility is a practical essential. The alternative, reinforced by the adversary system, is to shift the blame, and thus the responsibility, to the other spouse.
The legal system of divorce in the United States has no real logical relationship to the specific needs of divorcing families. American divorce feeds the voracious economic appetite of the adversary system at the expense of its clients. If the primary objective is a negotiated settlement that meets real needs of the family, we need a system designed for that purpose. The adversary system should be reserved for the few cases that cannot be settled otherwise. Your divorce needs to be negotiated with a minimum of contact with the adversary system.
Before the divorce is final, the court may issue temporary orders to deal with immediate problems, such as conservatorship, possession, child support, and spousal support/alimony. Temporary orders can say who will live in the home, who will be able to write checks on the bank accounts, and who will have control of the children up until the divorce is final and permanent orders are put in place. In most cases, depending on the court, the spouses will be ordered to mediation prior to any hearing on temporary orders. Mandatory mediation helps lessen the case load at the court and helps the parties resolve issues without a court ruling.
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