One of the biggest concerns I hear from prospective clients is, “Will I have to go to Court?” For whatever reason, many people are terrified of the idea of going into the courtroom. It’s understandable: everyone’s looking at you, everything you say is recorded, there is a lot of procedure regarding who gets to talk and when; and in the middle of it all is someone sitting in a black robe, a good five feet higher than everyone else in the room, who gets to decide your outcome. Many people will spend their entire lives and never step foot in a courtroom. Others will only go to court once or twice in their lives. There are even many attorneys who would prefer to avoid court, and deal only with uncontested cases, or transactional law.
I assure you, Court is not a scary place. Now, I realize I’m biased; I like Court. I knew I wanted to work in litigation after I saw my first legal drama at the age of seven. At best, I love Court; and at worse, I at least don’t mind it. Occasionally I’ve had weeks in which I am in multiple courts systems every day. I don't share the same fear of Court as my clients. That being said; not every case will go to Court, and some parties won’t ever see a courtroom.
When it comes to whether or not something will go to Court, there are two types of law: transactional and litigation. Transactional law never sees a courtroom; it concerns things such as: company formation, real estate transactions, estate planning and contractual transactions, etc. Everything else, such as: personal injury, criminal prosecution, and domestic law, etc.; is a type of litigation.
Even for litigation attorneys, most of their work on a case will occur outside of a courtroom; drafting, research, gathering evidence, and such. However, the difference lies in if the matter will require a judge to resolve an issue. Even in a typically adversarial legal action, like a divorce, if the parties can come to an agreement early on, and settle; then they will never have to go into the courtroom. An attorney can submit the paperwork with an affidavit from the parties affirming that they have reached an agreement, and once the judge signs off, everything is done. We call those actions uncontested.
A default action is a little different. In a default action, the defendant or responding party simply never answered the initial petition by their allotted time. Because the respondent does not file an answer or enter an appearance of any kind, the Court doesn’t know if anything else has happened in the case. In that situation, the petitioner will have to go to court when they seek the default judgement; mainly for the purpose of stating that the other party was properly served but did not respond, and to restate what he or she is asking for in the legal action so the Court knows nothing has changed since the initial petition. It’s a one time, brief, appearance.
A contested action is what most people assume when they think of going to Court. Contested actions require a lot of motion hearings and procedural steps before the parties can go to trial. Procedures will vary a bit according to local jurisdiction. If you are represented by an attorney, you will not need to be present at most of them, your lawyer will handle the court appearances for you. However, there is usually a few appearances the party must make in domestic action, whether represented by an attorney or not; these instances include: hearings for temporary orders, case management conferences, show cause hearings for contempt motions, and of course, trial. Whether or not a case goes to trial, or spends a significant amount of time in Court, depends entirely upon how co-operative the parties are with each other. It's not the end of the world if a person has to go to Court to resolve a legal issue. However, if you really want to avoid the courtroom; for whatever reason, the best thing to do, is to find a way to get along.