You have been waiting months (or even years) for your day in Court.  Your lawyer has been working with you, practicing your testimony and teaching you what court will look like.  You have family lined up to support you.  You have your witnesses coming in from out of town. Babysitters are lined up.  Flights are booked.  Everyone is ready.  Mostly?  You are READY to be done with all of this!  You are ready for no more litigation, for the judge to make a decision, for your family to get to the “new normal,” and you are really ready to stop paying a monthly bill to your lawyer.

Then you get a call from your lawyer at 3:30PM the day before Court!.   It goes something like this:

Scene 1:  The Day before Court

Lawyer:  I am so sorry to tell you this, but we are on standby.

Client:  Standby?  What do you mean?  My witnesses’ flights are all on time.  What do you mean?

Lawyer:  They don’t have a judge for us.

Client:  Ok, so they don’t have a judge for us tomorrow, but we are booked for 3 days, we will just go on Days 2 and 3 right?  Then they will just tack on the next day.

Lawyer: I am so sorry.  This is not how it works.

Client:  Well, how does it work?

Lawyer:  Well, we are on “standby” not cancelled per se . . . yet. What this means is that they have until Noon tomorrow to find us a judge.  If they do happen to find us a judge, we have an hour to get to the courthouse and then we get to go.  If not, they will postpone our hearing.

Client:  I am confused.  Can you break this down?  What are we supposed to do now?

Lawyer:  We just don’t know.  I am still going to keep preparing your case this evening and tomorrow morning because we need to be prepared as if we do have trial tomorrow.  However, there is a very good chance we will get bumped.

Client:  Can’t they just postpone us now and give us new dates?  I am worried about you working on my case and how much that is going to cost me if it is for nothing because we don’t actually have trial. This will be like next week though right?  At least next month?

Lawyer:  I know.  I hate it too.  I do not like having to overly charge you. However, we need to be ready and I don’t want us to feel unprepared. It won’t be next week or next month though . . . it will be longer.

Client:  Well, when will we know for sure?

Lawyer:  Noon tomorrow.

Scene 2- Noon Tomorrow 

Lawyer:  Well, it is official, we got bumped.

Client:  Thank you for letting me know.  How can this be though!  I don’t get it!  We have been waiting so long!

Lawyer:  I know.  It is extremely frustrating.  I really wish this weren’t the case.  I know you needed this over with and behind you.

Client:  Ok, so when are we rescheduled for?

Lawyer:  I don’t know.  They are going to call us next week.

Client:  Next week!!??

Lawyer:  Yes.

Client:  I cannot believe we have to wait that long!  Can’t you do something!  This is absurd!

Lawyer:  I wish I could.  I will call in to see, but I cannot make any promises.

Scene 3 – Next Week 

Lawyer:  Good news and bad news.

Client:  Ugh, I can’t take this anymore.

Lawyer:  The good news is we have trial dates!

Client:  Ok, so when are we rescheduled for?

Lawyer:  6 months from now.

Client:  You have got to be kidding me.

Lawyer:  I know, but the good news is this time we have “Right of Way” which means we cannot get bumped this time.

Client:  I don’t know if I can even believe you anymore.

Lawyer:  I wish I could tell you anything with certainty, but this is out of our control.

Client:  What now?

Lawyer:  I will do my best to keep my fees and costs low.  But, because this is a living breathing case, I need you to tell me if any big events happen.  I need you to keep me in the loop.  Also, because the judge will now be hearing this 6 months from now, we will need updated financials, updated bills, banks statements, etc. and because your partner has not been cooperative providing all of that to us, yes, I will need to issue new subpoenas to all the banks. I will need to reissue subpoenas to the schools to get updated grades. I will need it reissue subpoenas to the witnesses to come to trial.  We are “prepped” but I will need to re-familiarize myself with your case when the time comes.

Client:  I am so frustrated (and worried about paying you).

Lawyer:  I am too (and worry about you paying me for my time I need to spend on your case).

Client to self:  This is just not right!  I already feel so broke!  I cannot go on like this but what choice do I have! There has to be a better way.

Lawyer to self:  I hate when this happens for my clients.  They have already paid me so much money which I have rightfully earned as I have spent so much time on this case.  I have spent night and day on this case getting everything just right.  Now they are running out of funds but I am still expected to go on and wait 6 more months to try this case.  The lack of income here is hurting my ability to earn an income for my family.  I cannot work for free but this isn’t fair to my client either. There has to be a better way.

******

That my friends is “standby.”  Why does this occur?  In order for our court to move cases along, maximize the judge’s time on cases, and move efficiently, they need to set multiple cases in for the same day.  Often, many cases settle in the weeks or days leading up to court, which means by the time many of the cases settle there is a perfect number of cases to match with the judges and all is hunky dory. Other times the algorithm does not work (I am assuming there is some sort of algorithm) and there are more cases than judges.  When that happens, there are not enough judges available and there is no one to hear your case.  This is unless someone settles the morning of and a judge’s docket is suddenly clear and is ready for you to come in and try your case – hence, “standby” rather than full on postponement right away.

This might be a new concept for you as the family law client, but it is the bane of our existence for family law attorneys that need to take their matters to trial.  No one likes standby  . . . no one.  It is frustrating, it is costly, it is heartbreaking, it is emotionally draining on everyone involved.  It feels like a gut punch and it keeps our clients in a state of disarray and unknown. What is worse?  With the courts about to reopen for jury trials due to the incredible backlog of cases from COVID-19 closures and cancellations, this is about to get a lot worse.  I don’t know how bad yet, but essentially the courts are about to have a tsunami of cases and there will be other cases that take precedence over family law matters.  What that likely means?  More standby and longer postponements.  I don’t know how bad yet because while a lot of this is the “norm” we are also dealing with an unprecedented situation.

So, what can you do?  What can you do as the family law lawyer and consumer?  You can settle your dang case.  You can settle it before you even contemplate the words “trial” “litigation” “witnesses” “subpoena” “cross-examination.”  You already know from my last article that even if you go to court, you only have a 50% chance of a judge seeing it your way to begin with.  Heck, maybe even less than 50.  Why not put all of your effort into settling your matter instead?  Knowing you have control over the end date? Knowing you won’t be put on a 6 month standby?

How?  You look for attorneys who are willing to work on settlement.  You talk to them about mediation and you look for a mediator.

Alternatively, ask if your lawyer is collaboratively trained and you interview them on that method and see if it is right for you.  Educate yourself on the collaborative method here.

You have to remember that at the end of the day, you are in the driver’s seat.  It is somewhat tricky, because you are sharing that same seat with your partner and you both need to decide together to put the brakes on litigation and the gas on working toward settlement.  If you each have a foot on opposite pedals, you are going to stall out, get nowhere, and possibly break or lose what you already have.  If you are the one with your foot on the litigation pedal, I am asking you to take a step back and decide what would you rather?  Would you rather have your case in limbo for years (yes years) for a judge to perhaps not even agree with you – or would you rather finish in 6 months or so with a result you helped create?

Wendy is a family law attorney in Maryland. She is shifting her practice to focus primarily on mediation, collaborative law, and parent coordination. Her goal is to be a part of the solution, rather than feed the problem, for families in Maryland. To book mediation with her, please visit her law firm’s website here.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only.