A Brief Overview of the Adversarial System by Justin Steele

            We use an adversarial system, which means we have at least two opposing sides that fight for their respective sides before an impartial party who makes the decision.  This is an easy concept: lawyer v. lawyer and judge decides.  Justice is decided when one party’s facts or reasons in law convince the judge that their perspective is the right one.  By pairing every perspective with its opposing perspective we create a system where the most information is gathered and shared and the truth will win out.

            Interesting fun fact, according to some the adversarial system originated in the initial practice of trial by combat.  While trial by combat was almost entirely useless when it comes to discovering relevant facts and making a logical decision it did provide for certain people (mostly women) to have a champion.  And thus the lawyer was born. 

            This is an extremely useful way of completing a story because the rules of evidence require that both parties give each other and the court the information that they find.  This information is then used either to impeach one sides story, which would harm their veracity (capacity for truth-telling), or is used as actual proof of why one side is right or wrong.  The rules of evidence are a huge subject and I would love to discuss them (not really) but they could not be covered in one blog post.  Anyhow, once the parties have made their discoveries and handed them over to one another and the court there is typically a very clear picture of what has been going on.  Therefore, the judge just has to use the facts in the case and the relevant statute and case law to come up with the most reasonable solution. 

The Benefits of Mediation and the Temptation of Trial by Bo Murphy

            This week I had the privilege of sitting in on my first mediation, and it was in the divorce of a long-term marriage. Before my time at Rice Law, I really did not know much about mediation, or the reason why the State of Tennessee forces such a process upon every divorcing couple in the state. After seeing the process this week, I strongly believe in the method and that with the proper mediator and an open mind most cases would settle.

            A common phrase in the divorce field goes something like the client telling the attorney, “I would rather pay you all of my money in trial, than my spouse get anything.”  While the attorneys would be more than happy to oblige this request, it would not be good for the client or their family. One of the benefits of mediation is that it helps the unrealistic or unwilling client to see the benefits of settling the case that day and agreeing to perhaps less than they wanted, but more than the risk of litigation, or as attorneys say, “It gives the client one in the hand, instead of going for the two in the bush.” By doing this, it ensures that the client will be able to live their life with much more than if they continued the case on to trial.

            This possibility of getting everything from the opposing spouse at trial, which never happens, is what breaks down all barriers at mediation. The good news for attorneys having this type of client is that they can keep their client from having this mindset from the start; all they have to do is make their client see the reality and risk of litigation and the benefits of settling at mediation. As soon as the client files the complaint for divorce, their attorney should be developing a positive outlook towards mediation, instead having it represent another step to trial.

            It is a certainty that not all people will settle their case in mediation for a variety of reasons, which include a poor mediator, lacking attorney efforts, etc. Even though it is a certainty, the legal field can still attempt to get as many mediated out as possible, thereby saving the client time, money, and heartache.

Parenting time and technology by Justin Steele

            There are rules in family law that say a residential parent (the parent with whom the child resides the most) cannot move the child more than 50 miles away, or out of the state, from the other parent without a court order or consent of both parties.   That is still true, but the other parent is free to move as long as they want to reduce their parenting time.   This option is becoming more viable because of the advent of many different types of communication.   Now a parent can buy their child a cell phone, laptop, or tablet and Facetime, iMessage, Skype, Whatsapp, text or even call their child 24/7.  For minor children, the residential parent is required to allow the non-residential parent to speak with the child at least twice a week.  This is not a bright line rule and there is movement, if the child is young then the parent will probably want to speak on the phone or by Skype more than twice a week.

            Not only has technology made parenting and parenting time easier between the non-residential parent and the child but it has made it easier to coordinate between the residential and non-residential parent as well.  In the case of an emergency, normally both parents now have cellphones so they are more accessible.  If the parties cannot get along to any degree, then the most contact that the parties have to have is through email or text message.  While constant contact can be considered a negative, I think that the communication capabilities of technology can really improve parenting time.

            Generally, older children have cell phones now, which make it much easier for the non-residential parent to have at least some contact with them.  Though, the child may choose, like some teenagers do, to not answer their parent’s phone calls they will still see a text message.  Technology is really making the world a more connected place.

The Necessity of a Lawyer by Bo Murphy

            With the growing modernization of almost every field from law to agriculture, everyone is looking for an easier way of utilizing services that they need. One of the ways in which this has impacted the legal field is through online self-help legal websites such as “Legalzoom.com” or “Nolo.com.” At this time, there is even a law firm in Nevada who states they are revolutionizing the legal field with their online representation in family law matters.

            This family law firm states that they will help any individual who needs representation by sending the client the proper forms and having the client fill out all the necessary information, which the attorney will review and check for accuracy. The Nevada firm says that they will take any family law matter, no matter how complex, and allow for self-representation, cutting the cost for the client significantly. This firm believes that their system will work in Nevada, and could work anywhere, as long as the client takes the time to represent themselves.

            While this idea sounds noble and perhaps even appealing to potential clients, it is completely nonsensical. Family law is one of the most complex, austere, and time consuming areas of law, which is dynamic and ever changing. Family law clients need someone who is resourceful and knowledgeable to be able to ensure equitable resolution to their matter. For a regular individual with no knowledge of the law attempting to represent pro se with the opposing party represented by experienced counsel, this situation most likely will end poorly for the pro se individual. The dynamic character of family law keeps even experienced attorneys on their toes, continually reviewing case law for changes in the law, and this system of the attorney only reviewing what it is filed with the court and not representing the client in court is forgetting the necessity of attorneys. If the law field is so simplistic that a client only needs an attorney to proof read filed documents, then attorneys would not dedicate three years of their lives in school learning the field and becoming knowledgeable.

            In the end, while the law field is modernizing, this should not allow uneducated and uninformed clients to have to represent themselves in what could be the most traumatic time of their life. To do this would not be classified as a “Zealous advocate” but more like an “Obsessive proof reader.”