“I’m Not A Litigator, I Just File A Lot”REQUEST A CONSULTATION
This is sort of a niche post, so if you’re not involved in, or interested in, family law litigation, you can stop reading. If you are, I have some important advice for you.
More often than not, don’t sweat the pleadings in family law. Be aware of them, correct factual inaccuracies, respond to them, engage in litigation, but don’t lose your cool when you read something that’s exaggerated, untrue, inflammatory, or downright false. What you prove (or disprove) is far more important than what’s alleged.
The ugly truth is that domestic relations courts are brimming with unnecessarily nasty allegations. Clients exaggerate to their lawyers in hopes of securing more zealous advocacy (a poor idea). Attorneys add shocking language to filings to try to grab the judge’s attention or to impress their client. Sometimes, allegations are padded with adjectives and irrelevant information in an attempt to hide a very flimsy cause of action. The reason doesn’t really matter. It’s a common occurrence and is a misguided litigation tactic. Here’s why:
(1) You probably won’t shock the judge. Every day, judges listen to people rehash old disputes, hurl outrageous accusations at one another, and engage in the sort of high-stakes, slash and burn negotiating that makes Congress look functional. Unless you can prove your allegation or unless the judge trusts you (which likely means you don’t engage in this behavior in the first place) the inflammatory allegation alone will be insufficient to set off alarms. This is especially true if your take-no-prisoners lawyer has been demonstrating how he or she refuses to take prisoners in front of the same judge for years on end. What are the odds that one lawyer has only represented the infallible against their morally turpitudinous relatives? Slim to none. The odds are better that this particular lawyer kicks, bites, and yells a lot, almost regardless of the circumstances. Judges remember these things and they will certainly remember if you keep your cool and calmly prove your case.
(2) Once the pleading is on file, the fight has just begun. The other side will be given time to respond. If the issue can’t be settled, it will go to pretrial or trial. There, a judge will hear the facts, listen to both parties’ attorneys, and make a ruling on the merits of the arguments. The verbiage used in the petition matters little at this point. What really matters is the application of the facts to the law.
(3) Filing inflammatory pleadings is cathartic. Running up legal fees and losing at hearing is not. Plenty of attorneys will file venomous allegations, but only a few will take those issues before a judge. Often, it’s just an excuse to go before a judge for “presentment” (meaning the petition is being shown to the court for the first time) and kick and scream. After a response to that petition is on file, many attorneys let the issue fall by the wayside.
So what do we have left? We have a lot of nasty paperwork but largely the same case and largely the same outcome. It’s not a great use of time, energy, or judicial resources, but it does scare a lot of clients and family law litigants. Don’t get me wrong, there is a time and place to be angry, scared, or strike pleadings, but that’s something you should discuss with your lawyer. As a general rule, look past inflammatory pleadings. Your case will be better off.