The Facts of Life About Litigation

When people cannot agree and take their dispute to the courts for resolution they surrender control over the outcome. No matter how good your lawyer is the human factor makes the process very unpredictable. For example, you have no control over which judge will hear your case. The identity of the judge can make a tremendous difference in a contested matter. Even that judge's state of mind on the day your case is heard can have a tremendous influence over who wins and who loses.

Every disputed fact that bears on the decision represents a battle in the war. Battles cost money. For example, the witnesses needed to prove a point have to be found and interviewed. If you can afford it, you should take their depositions to lock in their testimony so they can't easily change what they say when the case goes to trial. The deposition also makes it possible to present their testimony if they are unavailable at the time of trial. The deposition costs include the court reporter's fee, the attorney time needed to prepare for the deposition, and the time taking the testimony.

The same is true for disputed legal issues. Most people think the law is always simple and clear like the rules for driving. Red lights mean stop and green lights mean go. While there are some simple and clear rules, there are lots of legal questions that do not have a well-established answer. How these uncertain points of law get decided can have a big impact on who comes out ahead. It is up to the lawyers for each side to convince the judge to resolve these uncertainties in a way that helps their clients. Doing battle on these points can be even more expensive than proving facts because good lawyers will dig into the law books for arguments that will support the clients' position. This is very time-consuming work and with the lawyer billing by the hour it can be very expensive as well.

Divorce decrees normally refer everything that may later come up with respect to child custody and support to the Juvenile Court. Under Virginia law, the parties to a case in the Juvenile Court can appeal its decision to the Circuit Court where the whole matter is tried again from the beginning.  By allowing the parties two bites at the apple, this rule also allows the case to be two times as expensive.  

When people go to war in court for emotional reasons, the lawyers are the big winners because the people fight over every issue, legal and factual. That means lots of billable hours and a large fee. So the smart litigant will put emotion on the back burner and reach agreement on as many points as possible and only fight on the things that are truly non-negotiable.