Tuesday, May 6, 2008

Family Law: Settlement versus Trial

When Pretrial and Trial Strategies for Family Law Cases from Law.com came to my attention, I thought this article needs commentary. Simply put: I think it creates a false dichotomy. Understand, please, that the article is meant for lawyers but I think its content needs to be read by non-lawyers consumers. What follows is for those non-lawyers.

Most attorneys do not approach family law litigation with the mindset of trial or settlement described here:

One of the greatest opportunities for immediate improvement in the practice of matrimonial law lies in the cultivation of the binocular mind-set. Binocularity involves the balancing of the settlement mind-set with the trial mind-set. This balancing occurs even in situations in which the practicing attorney has no intention of ever going to trial. Such situations present themselves, for example, where the attorney is practicing in the context of a collaborative law engagement or where financial constraints, coupled with client direction, do not allow for the possibility of trial.
Not that there are not lawyers who hate to settle rather than being able to beat their chests and do their best Tarzan imitations. These Tarzan imitations are pretty poor, by the way. The imitation pales especially when all is done and what the court gives is less than or equal to what was offered by the other side. Except that now the chest beating attorney has a much higher bill for the client than if the client had accepted the settlement offer.

I agree wholeheartedly with the article. One should prepare for litigation but be ready for settlement. The only important thing is protecting the client's best interests. I will say that nine out ten times settlement is the better solution for the following reasons:
  1. Unnecessary litigation only increases the trauma of the divorce. Unnecessary litiation occurs when the offer is as good as what the court may give after a fight.
  2. The costs outweigh the benefits. Also known as winning the battle but losing the war. For more why this is not a good thing, see Pyhrric victory.
I do like how the article defines the different mindsets. This paragraph is but only one description of the settlement mentality:
The settlement mind-set helps us focus on issue identification, prioritization, remediation and closure. We assist our clients by attempting to substitute problem-solving assignments, activities and other productive behaviors for anger, disappointment and frustration on their part. We conserve resources by applying energy and funds to resolve the most important concerns, as opposed to trivial, emotionally fueled concerns. In conducting necessary discovery, we focus our efforts on obtaining essential decision-making data rather than playing various discovery games, which only serve to deplete funds and increase the level of contention between the parties and their attorneys.
Of course, I agree with this paragraph. Most non-lawyers should do likewise - particularly that last sentence which applies to more than discovery.

What worries me about a settlement mentality is the chance that the agreement is sunk and off to court we go. I prefer my litigation mindset - be prepared for the worst and all that - so that I can be sure of two things:
  1. The facts so that I can counsel the wisdom of any settlement offer received or made by my client.
  2. To be ready for the case that must be tried.
The article captures something I have always thought:
The simultaneously held trial mind-set helps to keep us focused on the statutory and case law. It provides us with rule-based measuring sticks to discern between what our clients want and what will likely be decided under the law. With the benefit of these reference points, we can appropriately direct clients' attentions to the right things, pragmatically moderating ongoing behaviors.
Some clients will always want the chest-thumper type, others will think the chest-thumper to be the norm. I want to tell the second group that they are not the norm in family law cases.

To use the terminology of the article, the chest-thumper thinks only of litigation. The article points out some reasons why this is not good for lawyers and let me explain why not this is not good for you:
  1. In divorces involving children more so than in other type of family law cases, the actual divorce is only the start of your life in divorce court. The divorce court keeps jurisdiction over the case until the children are emancipated or until 21 (with some exceptions - see my article on emancipation.) Start off with a nasty fight and the remainder of the divorce gets nastier.
  2. With divorces and other family law cases, the judges know these types and are not terribly enthused with their behavior. Annoy the family law judge at your own peril.
As I wrote above, good family law attorneys I know combine these mind-sets. What clients do not understand is that both mind-sets are necessary to a case and the use of one or both depends on the facts of the case and the goals set by the client.

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