Going to court is a difficult experience for most people, especially for people dealing with the breakdown of a marriage or de facto relationship. Here we provide you with our top practical suggestions for success in family law litigation.
1. Litigation is not the end of negotiation. Some people think that litigation begins when negotiation has failed, and some lawyers conduct family law litigation as if that was the case. Instead, you should view litigation for what it is, a structured and rules-based process of dispute resolution in which negotiation plays a crucial role. Anecdotally, 90% of family law litigation does not proceed to trial, settlement is achieved along the way.
2. Understand that you are still negotiating. You tried to sort things out between yourselves, you tried to sort things out between your lawyers, it hasn’t worked and now you are in court – understand that the negotiation is continuing but the methods have changed. The language has changed, the process has changed, but the negotiation is continuing.
3. Have the end goal in mind. On any journey of this nature, it is important to have a clear understanding of the destination, of the ultimate outcome which you are pursuing, a goal. Understand what that goal is and communicate this to your lawyer. Never tell your lawyer how to do their job (this is sure to annoy them) but do tell them what it is that you want to achieve.
4. Have a strategy. Once you have objectives, you need a strategy. Ask your lawyer what strategy he or she proposes in your matter. Realise that new circumstances may require a new strategy. Being strategic does not mean being devious, it means doing things with a purpose and with understanding. Having a strategy means being proactive to gain and maintain the initiative.
5. Always play by the rules. There are tactics in litigation just as there are tactics in chess, but you must always play by the rules. Your lawyer will not break the rules or act unethically so that you can gain an advantage. Your lawyer’s first duty is to the court and not to you the client. Your lawyer’s duty is further informed in family law by important considerations such as the best interests of the children. Your lawyer must always work within the framework of law and ethics – otherwise, you need to find a new lawyer.
6. Litigation is not a sprint. Understand that everyone wants you to resolve your matter as quickly as possible. Understand that the family law system is designed to provide ample opportunities for your matter to conclude on a final basis. But also understand that the system needs to be fair to all parties, so at each step of the way time is afforded to the other side to ensure fairness and so that there is time to do what needs to be done at each step of the way. Also understand that the system is under great stress, resources are limited and the case load is enormous.
7. Litigation is a series of minor skirmishes and very occasionally, a major battle. Each letter exchanged, each court appearance made, each step taken, each order that is made – these are skirmishes and there will be a lot of skirmishes. Most of the time, there is no big battle, the skirmishes will decide the outcome. Your lawyer will tell you what is important and what is not, trust your lawyer or get a new one if you don’t.
8. Pressure is essential to settlement. There is no settlement without pressure, litigation creates pressure on both parties to reach an appropriate and acceptable settlement. Different people can handle different degrees of pressure. Your lawyer’s job is to create sufficient pressure (in a legal and ethical way) to bring the parties to their senses.
9. A good lawyer is honest with you. If your lawyer only wants to remain on good terms with you, they are being spineless. The best lawyers will always tell you how it is, without fear or favour. A good lawyer will tell you if your parenting proposal is not in the best interests of the children. A good lawyer will tell you if your financial expectations are inflated or conversely, if you are selling yourself short. Get a good lawyer.
10. Be resilient, there will be setbacks. Some people are so fearful of failure and so intent on winning, that they over-react to each real or perceived setback. Maybe your application has been criticised by a Registrar, maybe the other side’s barrister was especially eloquent, maybe that parenting consultant’s report was not what you wanted it to be, maybe that business valuation has come in too low. Maybe even your lawyer made a mistake, guess what, it happens. It is important to be resilient in the face of setbacks (real or perceived) and to persist. Nothing that is important comes easy and no fight is won without bruises.
11. Reaching a negotiated settlement means you have agency. Agency is the capacity of you as an individual to act independently and to make your own free choices. It is better to reach an agreement than to have an impersonal judge impose his or her decisions on your life, even if that involves some acceptable level of compromise and believe me, there will be a need for compromise. Family law is highly discretionary, it is highly unpredictable, the outcomes are rarely binary.
12. You want a great lawyer? Start by being a great client. Most family lawyers are competent and hardworking but remember that all good family lawyers are in high demand. Smart clients continually evaluate their lawyers and smart lawyers continually evaluate their clients. If you want to have a great lawyer, be a great client and if you want to have great clients, be a great lawyer.
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