Before I was an attorney, my only perception of what attorneys really did, and how the legal system actually worked, was quite limited. In fact, I probably gained most of my perception from network television and movies. Modern shows such as Boston Legal, Law & Order, and the like tend to leave an image of swift justice, unscrupulous players and a dramatic courtroom. While real-life legal drama is not usually as exciting (or unscrupulous), unfortunately many of us in the United States only have any limited exposure to actual attorneys and the legal system through the family law courts.
“Family Law” as it is commonly known, refers to the various laws and issues that can affect families, such as divorce, custody, and support. In today’s day and age, it is sadly quite too often that more and more people are finding themselves in these situations. Indeed, it is true that the rates of divorce and children born out of wedlock have increased over the past couple of decades, therefore increasing the issues litigated in the justice system. Courts and states across the country have tried to come up with different ways to handle the influx of cases and situations arising in family law. Even worse, a high percentage of these people cannot afford attorneys, so the judge is left in the middle trying to sort through a situation without the assistance of trained legal counsel.
What many people do not realize is that while many family matters do often present complex legal issues (which would beg for the assistance of an attorney), judges have (in many family law situations ) discretion in rendering a decision. This term–discretion–is a legal term. It is defined as “. . .a power or right conferred upon [the judge] by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others” (Blacks Law Dictionary, 5th Ed. 1979). What this term means, practically speaking, is that the judge can make any decision he/she sees is just within the parameters of the law.
For example, there could be two families with two identical situations in two different courts. Because the judge has discretion in various family law issues, both families could come out of court with different outcomes. Further, if appealed, there is a strong chance that both judge’s orders would be upheld.
So how could there be the rule of law when judges are issuing different decisions on similar situations? This question is the heart of the topic of this paper, and it comes from the concern of those vaguely familiar with the legal system who feel they have had a bad experience with a family law court or attorney.
Clients are always eager to tell me of a past situation where they, a friend or a loved one had a “good attorney” because they had a favorable outcome in court, and they don’t understand why they cannot get the same result. Besides the fact that every case is different (the smallest difference really does matter), usually the client does not understand that a judge has discretion in the type of matter in which he is involved. The discretionary function of the judge can make it difficult for a legal practitioner to predict the outcome, and it further frustrates the client who ends up with an unfavorable outcome.
When a family law situation does not turn in the direction the client wanted, they are quick to blame the attorney. The attorney cannot change the circumstances that are brought to him, and often the judge had discretion in making a decision. While a prudent attorney would identify the legal issues, obtain the necessary evidence and posture your position, even a perfect submission to the court does not mean that the decision will be favorable.
The situation is similar to a football game. The attorney (who is like the manager, or coach) can only do the best he can with the players and opposition that are before him. Furthermore, there are always unknown factors that come into play, such as weather, player injuries, illness, or a bad call from the referee. All of these factors make the game unique, and no two games are ever exactly alike.
Similarly, no two situations are alike in family law. There are multiple factors that can alter the direction of a case, and a judge is like the referee whose “call” may always be different. The relevant factors (such as personalities, incomes, past history, etc.) cause the outcome to be unpredictable, unforeseeable, and evolve and develop throughout the pendency of the case.
In theory, the discretionary ability of the judge is meant to obtain the best results possible for the particular family. Instead of arbitrary black-and-white rules that may not be best for every situation, the theory is that the judge should have the leeway he needs to do what seems right. In this fashion, the judge can look at every case fresh and new and tailor a customized order to the particular needs of the family. (Within the bounds of the law, of course. Indiana does have statutes in place that provide the factors the judge must consider along with the parameters within which the judge is bound in making a decision.)
However, the “leeway” the judge shares can lead to a lot of frustration with disgruntled parties. It is this frustration that causes people to despise the legal system. They do not understand why the attorney “didn’t do more” or they should have gotten someone else supposedly more aggressive to get the job done. It is clearly understandable–but frustrating–to see clients get upset over a family law situation not turning their way. It is also frustrating, however, for the attorney. Because as legal advocates, we are trained to argue the law and facts in favor of our client, and we like situations where the law is open to argument. The legal areas in which attorneys are usually very adept become fuzzy in an area such as family law, because where there is discretion, there is uncertainty.
It is true that judges have discretion in many facets of legal issues outside of the family law situation. The difference with family law, however, is that the major important issues that arise (such as determination of custody; division of marital assets; etc.) rest upon a discretionary determination. While many other areas of the law require the judge to make a particular finding when certain factors are met, the family law situation differs in that the judge can have a multitude of options when certain factors are met.
So while an attorney is always recommended and can guide a client through the convoluted legal process, we should keep in mind that the family law area is difficult not only for the client, but the attorneys and judges as well. Fortunately, not all areas of the law leave a lot of discretion to the judge, so hopefully we can give a second look to the legal system and legal advocates before preparing to throw the entire system under the bus.
Jeffrey T. Jones, Jr., J.D.