Ed Sherman
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How the Legal System
Works Against You

Never forget this simple equation:   T = M

The more trouble you have = the more money your attorney will make

The legal system is like a massive whirlpool. It seems quiet and safe when you enter its outer edges, but it quickly becomes hard to get out and soon you are swept with increasing force into its destructive embrace. This is very similar to what will happen if you take your divorce to an attorney before you are informed and prepared.

Why is this so? Here’s the short answer.
  1. Our adversarial legal system is based on argument and conflict. One side argues, fights, and tries to win, to beat the other side.

  2. Divorce problems are almost never about the law, almost always about personalities and emotional interaction between the parties.

  3. The law has no tools—none—that can help solve personal problems. In fact, due to its adversarial nature, the legal system will invariably stir up more conflict and make things worse rather than better.

  4. Few attorneys have tools or training that can help resolve your real problems. Attorneys who do not work in the legal system include attorney-mediators and collaborative law attorneys. For more, read Who Can I Call?.

  5. The more trouble you have, the more money your attorney will make.
Our system of justice is called the “adversary system.” It began hundreds of years ago in the middle ages with trial by combat, where people with a disagreement would fight violently before a representative of the king and he who survived was “right.”

Today, we have evolved a bit, so physical combat is no longer a recognized legal technique, but our legal system is still set up as a fight. The parties are regarded as adversaries, enemies in combat competing to win. In a divorce, the attorneys for each side compete, argue and struggle against one another (on your behalf) and try to “win” the case, to “beat” the opposition. The rules of professional conduct require your attorney to be aggressive.

What attorneys can do in the legal system:
  •  Explain the law and give you advice. Read Who can I call?

  •  File a petition (or complaint) for divorce

  •  Write threatening letters to the other side

  •  Seek temporary orders for custody, support and restraining orders

  •  File pretrial motions

  •  Conduct formal discovery to get information from the other side

  •  Negotiate (argue) with the other attorney)

  •  Attend pretrial settlement conferences

  •  Go to trial and argue your case in court

  •  Obtain a judgment
These are the attorney’s tools—the only tools the law has to offer. If you retain a lawyer, he or she will almost certainly take your case into the dysfunctional conflict of the legal system because that’s the only thing he can do. Lawyers who work in the legal system, even those who mean well, are almost certain to increase conflict.

The cycle of conflict. If either spouse is represented by an attorney, that attorney will invariably write demand letters, file legal papers, make motions, and do discovery. These actions will compel the other spouse to get an attorney, too. Then, the case will become contested and the cost and conflict level will go up. In negotiations, attorneys tend to ask for more than they expect to get—it’s considered “good” practice. Your spouse’s lawyer will oppose your lawyer’s exaggerated demands by offering less than they are willing to give and by attacking you and your case. Now you’re off to a good, hot start and soon you’ll have a hotly contested case, lots of cost, and a couple of very upset spouses. Fees in contested cases can run from tens of thousands of dollars each all the way up to everything you have and can borrow.

What attorneys can’t do. Professional standards of practice require your attorney to communicate only through your spouse’s lawyer, no direct contact. This means your attorney can’t “talk sense” to your spouse, or find out how your spouse sees things or explain how you see it. It means your attorney will always have a one-sided view of your case and can never achieve an understanding any greater than your own. It means that instead of there being two people who have a hard time communicating, you now have four people who have a hard time communicating.

Now you know why the primary cause of escalating divorce conflict and huge cost is the legal system itself and the way lawyers work in it. You might go in with a case that is not in serious conflict, but when the lawyers start their work, it is not likely to remain that way.

Exceptions. When a couple is already at extreme levels of conflict and there is reasonable fear of bad acts, you need an attorney to get restraining orders against your spouse (assuming your spouse is someone who would be influenced by a court order). If you feel you need to go down this road, read Make Any Divorce Better and learn how to fight effectively while protecting yourself and your children, along with specific steps you can take that can move your case toward mediation rather than litigation.

Alternatives. Some attorneys become so frustrated with the legal system that they leave litigation behind in favor of more constructive forms of practice. Some become mediators and others have developed the collaborative law approach. Learn more about these options in Who can I call?

Summary. The legal system has little to offer and neither do attorneys who work in it. The things an attorney can do are expensive, upsetting, and tend to increase conflict rather than reduce it. If you don’t want to (or have to) use the legal system, go around it—work out your arrangements outside the legal system. Read Make Any Divorce Better and learn about
  • how to calm conflict

  • how to talk to your spouse

  • how to negotiate

  • mediation and other alternatives

  • how to get advice from attorneys who do not represent you

  • how the things you can do are superior to anything an attorney can do for you

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