Do Overs and Second Chances

You have used your budget wisely. You prepared well. You were ready for justice to prevail … or so you thought.

Welcome to the world of second chances and do-overs! Mistakes happen in a divorce even if you have done everything that is in your control to prepare properly for court. You used your financial and energy budget wisely. You were even getting good at not being reactive to your spouse or your spouse’s attorney’s attempt to bait you. You started to see that the battle is really that of frame control, and you thought you created the perfect frame for the court to see through and rule in your favor. You were confident of a favorable result.

And then things went a little off track. When you received the court’s decision, you saw that the judge misapplied relevant facts. Your attorney also tells you the judge overlooked crucial law, which would have changed the court’s decision.  

In that moment of time, you think, what is the use, I spent so much time, energy, and not to mention money on trying to do what is right while my spouse acted like an animal during these long court proceedings, and now the judge is ruling in her favor, how can this be!?

Once you calm yourself down (which can take a day to a week), and you are ready to reengage, with renewed energy, what you need to learn about is do-overs and second chances to conquer bad judicial decision making.

Have a positive perspective; judges are only human.

Remember, you will have a lot of battels in your divorce. Your spouse may win more battles than you in the divorce and still loose the “divorce war.” The reason is because you only need to win the battles that matter most to you to make sure it is on those issues that the court rules favorably your way.

But Judges are human. They seem like oracles in their black robes officiating from behind imposing podium like desks. They also have a courtroom of personal, from the part clerk to the court reporters to the court officers to do their bidding. And since judges are only human, they have biases and are not perfect. They may just like your spouse better. I have been involved in trials where the judge is literally flirting with the opposing spouse on the stand. (Yes things do not go our way!). But I have also seen judges rip a new one to my client and then months later rule our way!

Unfortunately, there is no “Hawk-Eye” like they have in tennis to overrule bad calls instantly, but what you can do is to understand your options for a second chance and do-over.

The easier way and the harder way.

There are generally two options to take when a decision goes against you.

Second Chances (The easier way). The easier way to right a court wrong is to make an application to that judge, oftentimes called a motion to renew, reconsider, or reargue, to have the court look over issues of fact or law which if were included in the original decision would make the court rule in your favor. I would say your odds of getting relief on such a motion is about 50%.

PROS:

·      Relatively efficient use of budget

·      Relatively faster than an appeal

·      Judge is fully familiar with the case

·      Even odds of prevailing in part

CONS:

·      Any bias the judge had still remains

·      A motion to renew, reconsider, reargue, is not a complete review (we call a de novo review) of the issues presented, it is more limited in scope. For example, if you could have brought an issue up, but you forgot, you can not now bring it up on such a motion, you waived your right to bring it up, but you could bring it up on an appeal.

Do Over (The harder way). If you want a full review of the facts and law by a new judge, what you have to do in most situations is to take an appeal. If the trial is a marathon that only 5% complete, of those cases that are tried to complete, I would say only about 25% take an appeal. And of that 25 % who take an appeal, I would say that your odds of winning the appeal are less than 25%. But it does happen! Think of all the court proceedings same-sex couples had to go through to earn the right to marry? If you have this kind of resolve, then you should think about having an appeal budget early in the divorce process if things are not going your way. Sometimes it is wiser to use your limited resources where it can make most of the difference.

PROS:            

·      Full review of the record

·      New perspective from multiple justices

·      Can bring up new legal theories not raised below, which may not be able to be raised in the do-over approach.

CON:             

·      Expensive!

·      Low odds of winning