I spend a lot of my time discouraging my clients from choosing Court as an option to resolve their dispute. If clients have not previously been exposed to the judicial system, some see it as a way of accessing “justice”, pursuing matters of principle and provide themselves “right”. The reality of what happens during the course of litigation is sop very different. and I can count on one hand the number of cases in my career where a client has been “spat out” the end of the litigation and felt like these aims were achieved.
So when I am discouraging litigation as an option (and I do acknowledge that in a handful of cases it is the only option), my personal experiences are driving the search for another way. Those personal experiences have impressed upon me the “Top 5” reasons to avoid court and they are (not in order of importance):
The Uncertainty in General
Clients are blindsided when they learn that it may take numerous Court appearances before the same judge (all of which the client pays for) before there is some traction gained and some meaningful movement towards having orders made to address the issues in dispute. Clients who are “waiting for their day in court” are inevitably disappointed (as are the lawyers) when nothing is achieved on the first, or even the second, return date. That uncertainty continues for each court event, right up until the trial. Even at the trial stage, I have experienced being sent away for another year because there was more than one matter listed for the same day or days.
The Uncertainty of the Outcome
Even if a matter is heard by the judge, the outcome is unknown and it can be that way for a length of time, with many judgments being delivered after delays of months or even years. There are not many clients who relish the experience of leaving their lives in the hands of a referee for such a long time without an answer.
The Financial Cost
Most litigants feels the pain of having to pay their lawyers and experts. For most it is a struggle. They relay on help from family or borrow money at commercial rates. It would be fair to say that the cost of a one day trial is not less than $30-40,000 and will likely be much higher than that by the time valuations are prepared, the Mediator is paid, trial documents are prepared, the barrister is paid etc. For parties to “set fire to” not less than $60,000 is a blow for most families.
It is usual for the time between filing an Application and a final hearing to be in the order of 2 years or more. During that time, children’s needs change so, values of assets can change, employment circumstances can change and parties own personal circumstances can change. Each of these circumstances can require evidence to the updated, meaning that costs increase. Financially, clients “tread water” waiting for a hearing and once the hearing takes place, there is ordinarily a delay or months or sometimes years waiting for the decision. The delay causes many clients to lose opportunities, whether they be employment, investment or in their personal lives because the litigation takes such a toll.
The Health of the Family Suffers
Families in litigation have already suffered the experience of the family unit breaking down. If parties cannot resolve their dispute without resorting to litigation, then the level of conflict which that litigation breeds most often irreparably damages the last vestiges of goodwill between the parties. Litigation makes it very difficult for parties to co-parent, effectively or at all, meaning more suffering for children. The awkwardness and even outright conflict clients describe at having to face the other spouse at school and sporting events undoubtedly impacts children. From a personal perspective, the stress and pressure brought about by litigation has an effect on every single client and it is not uncommon for clients to need psychological intervention or medication to help them make it through to the end of the process.
There are certainly other reasons but these 5 are the ones at the forefront of my mind when I am actively discouraging clients from selecting court proceedings as the solution to their dispute. Of course, there are some matters which require judicial intervention and those matters become very clear, very quickly. In those matters, quick and firm action is required and unfortunately, despite my reasons to avoid it if possible, litigation remains a significant part of day to day practice as a family lawyer.
If I can help you with the alternatives to court or if your matter is one for which you believe needs immediate steps to be taken, please feel free to contact me on Kate.Graham@bgm.legal.