The Hard Truth: Law vs. Just and Fair

We are in the conference room. The afternoon sunlight shines through the blinds onto the ice cold water she holds in her hand. A tear comes and anger is expressed. The divorce is filed. She just knows that her husband is not worthy of placement. She is willing to fight that position tooth and nail until every marital dollar was used up to prove it.

Frankly, her husband has some personal issues that supported her concerns. He has had a drinking problem and other issues that would have an impact on the kids. Unfortunately, our client’s concept of unfit were not going to be the same as the test considered for determining parental placement under the Wisconsin statutes and case law. That divergence between what we perceive as just and fair and where the law lands can create a major pinch point.

The case mentioned found its way. Despite the legitimate feelings she had and after some very difficult meetings, she found a way to share placement in a way that put the child first and that actually helped the lesser parent to seek help and, ultimately, to contribute the parenting of the child. But, she will never fully understand why the law doesn’t follow her view on what is just and fair.

To quote the learned Judge Frederick R. Daniel, Jr. in his 1994 address to the American Bar Association “Enforcing the Law”:

An older, experienced judge was once talking with a younger judge who had just been sworn in for the first time. And the older judge asked the younger judge if he knew what his job was in making decisions; and the younger judge said, “Yes, I should make decisions which are just and fair.” And the older judge said, “No, you should make decisions which enforce the law.”

That distinction is important, because people may disagree about what is just and fair. We Americans decided long ago to be a nation of laws and not men. That is why I take my oath to enforce the law very seriously. That is why I try to enforce all the laws, even the ones I dislike, even the ones I disagree with.

This is occasional deviation from what we perceive as fair and what the law provides is a difficult but critical translation the Attorney owes to the Client. What is just and fair in the client’s eyes is not always what the law allows or offers in the court room. Put another way, laws are often built more for purposes that are broader than the particular issues at hand. Sometimes, when your narrow concern gets caught in this broader stream of purpose in found the statutes and case law. The result is often different than even logic would otherwise express for your personal situation.

All that being said, ours is a good system. We follow the rule of law. In common law systems, legal stability and predictability are furthered by judges following previous cases. Legal stability and predictability are a fundamental part of this process. Legal stability attempts to assure that like cases will be treated similarly. In the absence of stability and predictability in law, people have difficulty knowing what to expect.

Never lose track of the fact that what your heart feels is legitimate. However, also know that your heart is not always the truest guide in how your concerns will be dealt with in court. Consult with an attorney that has been down the legal road you intend to travel. Get the straight answers. Do not expect a good attorney to tell you what you want to hear, but know that attorney will help you maximize your position if the law does allow for it.

A picture of the earth from space, well that is a beautiful thing. The toils and tribulations on a given street, not always as pretty… but frankly, the good, the bad and the ugly are all an important part of that overall global picture.