“I don't know Alec Baldwin or Kim Basinger, but I do know our legal system intimately, so I can tell you with absolute certainty that the Baldwin-Basinger tragedy is a high-profile example of something that happens hundreds of times every day to people who have no headline value. What we are witnessing, with the media in full cry, is the failure of a legal system that still thinks we are in the Middle Ages. What we are seeing is something that didn’t have to happen, that probably would not have happened if we had a legal system that made sense.”
Sherman explains that in our “adversarial” system, courts are a forum where people are expected to fight—it’s designed that way! It started in the Middle Ages with trial by combat, where men with a disagreement would fight violently before a representative of the king and he who walked away was “right.” Today, physical force is no longer an approved legal tactic but, otherwise, things haven’t changed much. The parties are still regarded as adversaries—enemies in combat, competing to win.
In modern usage, you get a hired gun—an attorney—to do battle for you and you sign a retainer agreement where the more trouble you have the more money your attorney makes. Can you guess how that works out?
In a divorce, attorneys for each side compete, argue and struggle against one another (on your behalf) and use up all of your emotional and financial resources trying to “win” your case, to “beat” the opposition. You and your children spend years living in a hellish war-zone. The rules of professional conduct require an attorney to be aggressive, because we think that’s a good thing. But it isn’t. It produces rich attorneys and tragedies like the Baldwin-Basinger family, every day by the hundreds.
In a sane universe, people who are breaking up would be guided through a non-adversarial process of conciliation, encouraged to step back, take a breath and think about what’s best for the kids, what’s fair, what makes sense. You would work with trained mediators and negotiators rather than litigators. But no, that would make sense.
“Let’s use this sad case as a reason to take a very close look at how we force families in crisis into a system that is guaranteed to make things more difficult for troubled families that are ground through it, where there are no solutions, only more problems, where intolerable pressure brings out the worst in people, which is exactly what happened to the Baldwin-Basinger family,” says Sherman. “Let’s have a little sympathy for them and some scorn for the system that failed them as it has failed all families in crisis for generations gone by.”
“My life’s work has been to help people avoid unnecessary pain and expense when going through a break up, which starts with finding ways to avoid being represented by an attorney and staying as far as possible from our dysfunctional legal system. I dream of a day when my services are no longer required,” Sherman says.
CREDENTIALS: Ed Sherman is a divorce specialist attorney and award-winning author of How to Do Your Own Divorce in California – the book that launched Nolo Press and self-help law in 1971. He has since authored several publications that explain how to obtain a divorce in an easy-to-understand format, including How to Make Any Divorce Better. He also launched Divorce Helpline. His books and software have saved millions of people billions of dollars in unnecessary attorney fees, not to mention unnecessary pain, by helping them get better divorces - yet his firm does not take cases, represent anyone or go to court.