By Jennifer M. Paine
Who is your judge? This may feel like an off-putting question when you first meet with your lawyer, but for many cases, it is a crucial one.
No, it is not because your lawyer, or your spouse’s for that matter, has a special relationship with the judge and can garner a better result. Judges are, ethically speaking, required to remain neutral in a case and cannot discuss the case with either lawyer, you or your spouse, unless on the record.
There is a common myth that the best lawyers are in the “good ole boys,” or “good ole girls,” club, and that lawyers and judges talk about or decide cases over golf and fundraiser dinners. This is only a myth. Most judges prefer to keep their jobs, and such activity would land them before the ethics board.
Lawyers do ask about what judge is presiding because the judge assigned to your case will dictate many of the things that occur during your case. Granted, the law is the same in your state no manner the judge that’s assigned. But how that law is applied will vary significantly from county to county and judge to judge.
The judge that is assigned to your specific case can affect:
Court Protocol- Some judges requires your attendance at every court hearing, even the simplest of meetings in chambers to select a trial date (a meeting, unfortunately, that you will not see, as most parties sit in the hallway or in the courtroom while the attorneys meet in the office).
Some will allow you to participate by phone, or even email. Others only require the attorney to meet.
Some judges require written motions or petitions for every issue, while others will be available for a short conference call to troubleshoot issues. Some judges limit the number and type of questions each party can ask the other in that formalized process of investigation called discovery, while others allow for a large number of questions that are even minimally relevant.
In other words, how your judge runs his or her courtroom will determine a great deal of the amount and type of work involved in your case and, ultimately, the time and money you spend on it.
Timeline- Similarly, some judges will stick to strict deadlines for your case, trial or settlement, whereas others will allow you several adjournments of dates to explore reconciliation.
Most will require mediation, but how much they emphasize the importance of mediation and nudge you toward settlement at mediation is up to the judge. Some judges send notices that the case is expected to settle, absent unusual circumstances, and some even warn of sanctions if one spouse stonewalls at mediation.
Others view mediation as one step closer to trial but are ready and willing to try your case. Therefore, the judge that’s assigned to your case will dictate whether and how soon you end up with a trial, with a settled case or with a reconciled case.
Bias- The most common reason for asking this question, however, is bias.
Whether judges will admit it or not, they approach cases with a certain set of assumptions. For custody cases, this could mean, and usually does mean, assumptions about what parenting or visitation schedules work best for children.
It is true that the number of fathers receiving custody awards is on the rise. But statistics are still unsettling. According to the U.S. Census Bureau, as recently as two years ago, only one in six custodial parents of divorced or separated families were fathers. That is a woeful 17.8% of the estimated 13.7 million parents who have custody of children under the age of 21 while the other parent lives elsewhere.
The percentage of custodial fathers has increased only slightly over the last decade. This occurs despite record numbers of stay-at-home fathers and working mothers. Fathers still receive fewer custody awards based on similar fact patterns in state courts, and there is no apparent change on the horizon for alimony payments, for how long a wife should have to reintegrate into the work force and so forth.
So, the next time a lawyer asks you what judge you have, answer and listen carefully. You will learn a lot about what’s to come in your case, how long it may take, when and how you will go to court and what predispositions you are up against.
Jennifer M. Paine is a Michigan Divorce Lawyer with Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.
Ms. Paine received her Bachelor of Arts in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.