“The discretion of a judge is said to be the law of tyrants. It is always unknown. It is different in different men. It is casual and depends upon constitution, temper and passion. In the best, it is sometimes caprice. In the worst, it is every vice, folly and passion to which human nature is liable.”-Justice Charles Pratt (aka Lord Camden)

Anyone who studies both ancient and modern history understands that it is replete with examples of wise and noble kings, interested in the well-being of their people, and despotic tyrants indifferent to common suffering and the plight of the poor and downtrodden. This dynamic continues on to this day and can be found in our court system. Justice, simply put, will often depend upon who you are in front of.

The concept behind judicial discretion is relatively simple: “Discretion is a science of understanding, to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their men’s will and private affections.”-Justice Edward Coke

So what would an example be in a family court proceeding? Well, let’s give an example. Family Code Section 271 is a statute designed to promote settlement and cooperation by way of the threat of sanctions. When conduct by a party frustrates that policy, a court can sanction a party a certain amount of money, as long as that party has the ability to pay that sanction.

I’ll give you a real world example without mentioning names. Let’s say that you went into court and told the court your community property business was shut down. As a result, your wife didn’t get spousal support, child support, and the business didn’t get divided. You spent tens of thousands of dollars in attorney fees and eventually defeated your wife’s claim because she did not have the money to continue fighting. Because you are a psychopath, even when your wife gave everything up in exchange for a promise to pay the community debt, you didn’t pay the community debt and your wife was sued for $150,000 and driven into bankruptcy.

If you are thinking this is the kind of conduct that can get someone sanctioned, you would be right. But you would be wrong to think that happened.

In fact, after discovery of hundreds of thousands dollars in checks with the name of the community business ON THE CHECK (some of them written to the attorney who had informed the court the business was shut down and contradicting her declarations) the response by the court was to sanction wife because the court could not see a connection between these checks and the community property business. Because the court had “discretion” to sanction wife, this kind of order was very likely to be upheld on appeal, despite being completely absurd and unjust.

THAT is an example of the power of discretion, and exactly why the famous lawyer Alan Dershowitz once said “Judges are the weakest link in our system of justice, and the most protected.”