IS THERE SUCH A THING AS JUSTICE IN FAMILY LAW?
The starting point in answering this question might be: What is your definition of Justice? Is it getting your way? Getting what you want? Is it feeling like someone has made a careful and balanced decision so that win or lose you feel like the process was fair?
I don’t know what the answer is for you and I will give you my answer later. What I do know is that many people believe that justice can be manipulated or even bought (not to my knowledge in this country). Some believe that justice is a product of the quality of your legal representation. Someone who hires a top family lawyer is more likely to succeed than a self-represented litigant or than someone who hires an inexperienced or incompetent lawyer. Is this true? I will give you my view on this later as well.
Perhaps justice, like beauty, is in the eye of the beholder. If the result comes near to your expectations then as far as you are concerned justice has prevailed. If you feel satisfied at the end of the process than you equate that with justice.
Now let us turn out attention to the role of the judge. How do they fit into this? Should you be assuming that the result you will achieve from one judge will be the same as you receive from another? Should you assume that the quality of justice you receive in one level of court will be the same as what you receive in another level of court?
The answer to this is actually easier to provide than answers to the previous questions I raised. Of course all judges are not the same and the result that you may achieve from one judge in a family law proceeding may be totally and completely different than what you get in front of another judge. It is easy to forget that judges are people just like you and I. The problem is that some judges forget that as well and that influences their decisions. They draw from many things when making decisions. That includes cases that have come before them before, case law precedent, and their own personal experiences. Is it possible that the decision you get might be influenced by whatever happened in that judge’s life that morning? Anything is possible but I can tell you that lawyers are well aware of the fact that they will get very specific results from certain judges while other judges are more balanced in their approach.
Now I will give you answers to the questions I raised earlier:
a. What is my view of justice? Let me start by saying that I have an overriding need to succeed in the courtroom. Do I view success as justice. No I do not. I view success as a product of hard work, intense research and skilled courtroom delivery. I view success as satisfying but not as equivalent to justice.
Justice is obtaining a result that is balanced and in keeping with what is dictated by statute and precedent. What that means is that if a judge makes a decision that we view as clearly misdirected we look to a higher court, such as the Court of Appeal, to sort it out. That is the beauty of our legal system. You can be dissatisfied with the result you obtain from a judge and take it to a judge in a higher court to have a fresh look at it. So even if you think that the result is correct, even if you think that the decision was the product of a balance and reasoned approach by a judge, that does not mean that justice was obtained or that anyone has to accept the result.
b. The second issue is whether what happens in the courtroom has something to do with the quality of your lawyer, whether you have a lawyer at all, or whether your lawyer charges more than the other lawyer. The answer to this is confusing. It is confusing to me and it will be confusing to you.
In many instances the result will be heavily influenced by the quality of your lawyer. Certainly you have an advantage (usually) if you have a lawyer and your opponent is self represented. Often you have an advantage if you have a well known, well respected lawyer and the other party has a fresh out of school lawyer or a generally inexperienced or even incompetent lawyer. However, the very surprising piece of this is that often it doesn’t matter at all. The result that you get is based on the law. Based on what is fair and what is just. More often than not, judges give decisions that are well reasoned and correct.
So yes, in most instances, there is justice and you can rely on our legal system to do what is right and to dispense what we view as ‘justice’.
Steven M Bookman is a family law lawyer in Toronto, Ontario. You can reach him at [email protected] or at 416-488-2243. Visit our web site at www.bookmanlaw.com