Is Trial Worth the Risk?
By M. J. Goodwin

Twenty-two years in South Carolina’s Family Courts has taught me many things. I’ve learned more than just the application of the academic law taught in Law School. I have also learned about human nature and how it interacts in the legal environment. A break-up of a family is sad. Divorces are sad; custody cases even sadder. If the issues between the parties can be resolved by agreement, that is by far the best route. Because a trial goes beyond sad. A trial is akin to a war. A trial, while just another day in the life of a lawyer, can be accurately called a tragedy for the parties involved.
A trial is a risk. There is the obvious risk of losing. A party may come out significantly worse that he or she would have been via a compromise resolution. Judges often view cases as an “all or nothing” proposition. But there are other, more insidious aspects of trials that make them undesirable.
Trials consist of lawyers calling witnesses. So many times I have had persons say “put me on the stand!” That person is eager to testify, to tell his or her story. That person has no real concept of what testifying means. It is so much more than just answering questions and giving evidence favorable to the “side” one supports. People forget that the litigants, if they have children, are still a family long after the custody trial is over. That is important. In that respect, Family Court is unlike criminal court or civil court. One does not attend weddings with the guy that ran the red light and one’s car. One can expect to see the father or mother of one’s child from time to time. Many of those events will be for things important to the child: school functions, football games, dance recitals, graduations, weddings, births of grandchildren, grandchildren’s functions. Yes, life goes on. Everything a witness says is recorded for posterity. Even transcribed if one choses to buy the transcript. So all those hateful, possibly slanted things that are said during trial are out there. They can never be “unsaid.” Emotional fractures that may have healed may be rendered permanent as the result of a trial. And future events may be much more tense than they need to be due to the testimony elicited at trial.
A trial airs everyone’s dirty secrets, to everyone in the litigants’ lives. This is also a concept not widely considered before litigants trudge headlong into a trial. The dirty secrets don’t stay in the Courtroom. They come out. This happens very quickly. A supporting witness, perhaps a neighbor or church member, is asked “Are you aware that Mr. Jones has a drinking problem?” or “Are you aware that Mrs. Jones gave Mr. Jones a sexually transmitted disease?” The very nature of the question gives away much private information. But for trial, many painful private secrets would have remained private. These secrets then make their way around the church, the school, the sports teams, the neighborhood, etc.
So why go to trial? Sometimes there are very good reasons to go to trial. Sometimes it is absolutely necessary. If there is no room for compromise, go to trial. If things are so bad that it is absolutely better for a stranger (the Family Court Judge), with limited information, to make the decisions regarding the most intimate aspects of one’s life, go to trial. Otherwise, attempt to compromise and settle the case.
After 22 years, if I have all the relevant information, I have found that I can pretty accurately predict the outcome of most cases for my clients. That is not to say that I am always correct or that I get every detail exactly as the Judge ultimately orders it, but I can get in the ballpark. There are few new frontiers in Family Court. Some clients choose to listen, others do not. That is a personal decision each client must make. But it is important for clients to leave their emotions out of any decision making in Family Court. And that is a tall order. Not everyone can do it and those folks will always have trials.
When seeking an attorney, be sure to inquire about the attorney’s ability to settle cases and reach beneficial compromises, as well as the attorney’s trial experience. Both are important for competent representation in Family Court.