Tuesday, September 22, 2009

What Would the Judge Do?

Many times during an initial consultation while I am talking with just one side of a dispute, that party will list a few facts for me – sometimes quite complex, and then ask, “So what would happen in court?”

The answer to that question is always the same, “nobody can say for sure.” Here are three good reasons why this is true.

First, the “law” is a living, breathing, moving thing. Every day, each reported case out of the appellate branches changes, reinterprets and redefines the body of law. No one can honestly and accurately say with exactitude what will happen when told, by one side, the “facts”. If the law changes every day, then you cannot accurately say what will happen on any given day in the future.

Second, a court of law hears the presentation of “facts” that the proffering side hopes will be entered into “evidence”. To be considered as evidence the proffered fact must be competent, relevant and not otherwise excludable for policy reasons. Roughly this means that the fact being presented must have a proper foundation, be on point and not be hearsay. That is to say that the person presenting the fact must have the requisite first hand knowledge of the fact. The fact itself must properly address the matter being considered and it must not be excluded from evidence for being an out of court statement being offered for the truth of the assertion.

Third, it is important to remember that what happens in a court room is a contest. The other side will be raising objections to your evidence, cross-examining your witnesses and presenting their side of the story which, if believed, will lead to a vastly different result.

Given just the three elements listed above, it is easy to see why it is not possible to accurately predict the outcome of a case based on the relating of a few facts from just one side of the story. It would be like having someone hand you one or two tiles from a huge mosaic and asking you to tell them what the entire work looks like. Can’t be done. Don’t trust anyone who tries to tell you otherwise.

This is one of the foremost reasons that people should consider mediation as the preferred method of managing their disputes. Unlike a lawsuit, in mediation the parties are not being “judged” and no decisions are being imposed upon them. Instead they are the architects of their own solutions and the settlement in a mediation is an agreement that each party has fully participated in creating.


David D. Stein has been an attorney for over 20 years and is the founder of Liaise® Mediated Solutions. He is a trained mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

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