Sunday, August 20, 2017
The events of the last couple of weeks in both my personal and professional lives have brought to mind the subject of settling a case short of a judicial decision. As you may or may not know, I settle most of my cases. Some of my colleagues do not - they try most of their cases. I know you're asking "Why is that?" You're probably also asking what I know that could help you settle your case. Well, the answers to both questions are elated. Let me explain. Before I do, a word of warning: if you think I offer a magic wand or a quick fix, this blog will be unsatisfying.
Many times, a settlement is not what a client would get in court. A client might get more alimony or more property if they went to court than if they settled. Some lawyers see that and only that, and counsel a client that because going to court could get them something different from a settlement, they should go to court unless the other side gives them what they believe a judge would probably award. The problem is that these lawyers assume that judicial decisions are predictable and uniform. They're not. If they were, everyone would know what the outcome of a case would be if they went to court and they would settle their case. At least they would have a definite range of possible decisions. Those same lawyers mistake positions for needs, and then are confused when clients get what they want and are unhappy. As the courts are still in business and judges are still hearing family cases, even with the best of attorneys, these assumptions are obviously incorrect. So, there is an element of unpredictability in taking a case to trial, and a client might get what the attorney thinks they will and they might not. Settling takes away that unpredictability. Still, there are times when you have to go to trial.
How do you know if you have to go to trial? I have a few pretty good indicators.
1. There is an issue about which there can really be no compromise. For example, one parent is staying in the home state and the other is moving across the world to a location that is at least as desirable as the home state; and both parents want the child to live primarily with them.
2. You make offers of settlement and the other side doesn't respond, or makes counterproposals. that are the polar opposite of the original offer and they persist in insisting theirs is the only solution, and this pattern continues.
3. Mediation is completely unsuccessful, and by this I mean that there are no points of commonality.
4. The other side has an addiction, mental health or processing issue that makes it difficult to impossible for them to realistically assess the value of an offer, make a counteroffer, or compromise in any way.
How do you figure out whether your case is one of those that has to be tried? First, you need to do some homework of your own. All my clients do.
1. First, ask yourself three questions:
A. What MUST you have in order to settle your case? I'm not talking about things, here. I'm talking about concepts. Do you need a secure retirement, or is cash on hand more important? Do you need a flow of income, or could growth on investment get you what you want? Is it important to keep the kids in their home or school, and what does that mean?
B. What would be nice to have in order to settle the case, but which you could live without if necessary?
C. What don't you care about being included in a settlement of the case?
2. Second, answer the same questions about your spouse.
3. Think about all the ways you could get what it is you must have. There is never just one way to get what you need. Examine the pros and cons of each way.
4. Formulate a settlement proposal and make it. There's no shame in being the first to make an offer. Listen to the response, and not just what is said, but the underlying format and the expressed needs of the other incorporated in that response. See if there's a way you can adjust your offer to meet both of your needs. Remember, you are only going to be able to reach a settlement if it is mutually acceptable. It might be that even if you adjust your offer, the other side may reject it, may back away from what they say they need. This is a sign to you that your case may not be able to be settled, which you will have to explore further.
5. Think about the costs of settlement versus the cost of going to trial. These costs may factor into your needs:
A. Money: Each day of trial costs not only 6 hours of trial time, but three days of preparation. That's on top of all the preparation and work that leads up to the ultimate preparation for trial.
B. Time: There's a reason our Administrative Office of Courts puts a one-two year deadline on completing the trial of a case - it takes every bit of a year (or two) to get a case to trial and completed. That's a lot of time to have no resolution to your case and no ability to move forward with your life.
C. Emotion: Emotions run high in a divorce. As long as the divorce remains in process, the heightened emotions do no ebb and there is not relief.
D. Having to go to trial: Trying a case is not a pleasant experience. You will be subjected to direct and cross examination. You will have to sit through days of trial. It is exhausting. It is unpleasant. Some people are terrible testifiers. For some people, being subjected to the trial process will re-traumatize them, and set back all of their recovery from their divorce.
This isn't my life, it's yours. I advocate for you. My advocacy looks a whole lot different depending on whether I am advocating for a position or a need. If you don't do the heavy lifting and figure out your needs, with the help of your lawyer, not only will you probably not settle your case, you will also be unhappy with any outcome. Life isn't about things or money, although when you are in the middle of a divorce or custody matter it may seem so. Life is about underlying wants and needs; and in order to settle a case you need to know what they are. Here in the Trenches.
Sunday, August 13, 2017
Something else happened when I was sick that is really relevant here in the Trenches. I had a primary care physician. Let me tell you about my experience with this doctor. My insurance carrier told me I had to have a new primary care physician. I call this doctor's office and found they were taking new patients; and I asked to be able to designate them as my primary care physician. They agreed, and then informed me that I had to have a physical with this doctor as a condition of being her patient, the first appointment they had for that was 5 months in the future, and that if I needed a referral before then, I was out of luck. This doctor had come highly recommended and I'm rarely sick, so I agreed. I showed up on the day of my appointment and they forgot me in the waiting room. Then the doctor spent a lot of time telling me about their divorce and not really asking me anything about me - I was not wonderfully comfortable.
Fast forward 1.5 years later, and I'm really sick. I really didn't care for this doctor, so I didn't want to make an appointment, even though I needed one. Then I called their office. It was business hours, but they didn't answer. People are busy, so I left a message; they never called me back. Then I went online to their online appointment scheduler; there were no appointments for 3 months, even for a sick visit. So, I went to urgent care. They treated me. 1.5 weeks later, I was still really sick, and again there were no appointments with my primary care, so I went back to urgent care, and saw a different person. They prescribed a different treatment. 4 days later, I'm still just as sick. I thought, what should I do?
At that point, I thought about my own practice. If I had been a client instead of a patient, what would I have told myself? I would have said that lawyers and their clients are like dogs and their owners. In a successful relationship, we resemble each other in our outlook in life and approach to resolving disputes. I would have also said that your divorce lawyer will know more about you than you ever wanted anyone to know, and so you had better be comfortable with them and their staff, or you will be reluctant to share necessary information with them or to call them at all. At that point, it hit me like a ton of bricks that I had not taken my own advice when it came to choosing a doctor. I am certain this doctor is a good doctor - good recommendations count for a lot, and the existing patients love this person. This doctor is not the right doctor for me, just as I am not the right lawyer for everyone.
About a decade ago, I had a primary care doctor I loved. 8 years ago, she decided to become a concierge doctor. Although the annual fee for her service was not that expensive, I had no health issues at all. I didn't feel like I could justify the cost. As I went through primary care physician after primary care physician, and finally having no physician except my gynecologist, I kept thinking of this doctor and how I trusted her. Finally, as I was so sick and not getting better, having no continuity of care, and having no one who I could call who I trusted, I looked up her number and gave her office a call. The woman who answered the phone was like Chrystal at my office; I felt like she really cared. I paid the darn fee, and she got me an appointment for later that same day. I showed up, and my doctor was exactly as I remembered her. She was thorough. She answered all my questions (including all the really stupid ones that were ridiculous but were keeping me up at night); she and I had a rapport. She ordered the tests I needed. I felt better immediately, not because of the medication or the tests she prescribed, but because I knew I was in good hands. I felt safe and secure that my issues would be handled and all my questions would be answered. I think she's an excellent doctor, but she is probably no better or worse a doctor than the other one. The difference is the relationship, and that relationship makes her a better doctor for me. The relationship, more than technical prowess, makes one lawyer better than another....for you. Here in the Trenches.
Sunday, August 6, 2017
The last day I posted was the day my beautiful granddaughter was born - three weeks early. Not only that, I was in the midst of a horrible something that had settled in my chest, that made breathing, let alone functioning at an acceptable level, take all of my effort. As I struggled through not knowing if I was contagious still, and being unable to see the little angel until I was sure I wasn't, and then learning all the new ways medical science say we should treat newborns, and finding time to spend with grandma's angel, I thought about everyone in the Trenches.
First, I thought about how it's now a "thing" that people don't disconnect from work when they vacation. I read one article on the internet and one in the Washington Post today that said that people bring their work cell phones and check emails on vacation. We all feel that tug to stay connected 24/7, because we can. As a result, we enjoy fully none of the things we should. I do it. My clients do it too. I resolved to spend an afternoon a week with my angel and her parents, and turn off my cell phone (except for taking pictures, of course). I want to enjoy this experience of my first grandchild and of my son being a parent, and I can't if I don't put my worries about my clients to the side for those few hours I'm with them.
I want my clients to do the same with your worries. I know it's your life we're talking about. I know that there is easily enough to do to keep you fully occupied with your case for all the hours you are not at work. I know you feel like if you don't work on or worry about your case, you feel guilty. I'm giving you permission to unplug, not for every day, but at least once a week. Take a few hours to recharge, to not read about divorce, to not work on your documents, to not talk about your divorce. It will be like you had a mini-vacation. Remember how you feel when you come back from vacation (no, not the part where you wish you could be on vacation every day for the rest of your life)? You feel renewed and ready to tackle what life throws at you. I know I feel that way after my half day with my son and his family. You need it too.
Second, I thought about all of the frustration I felt in being unable to do what I wanted to do while I was sick. I couldn't visit my brand new granddaughter. I couldn't help care for her. I couldn't help my son and his wife with some of the daily chores they were too tired to do. I couldn't run or lift weights or go to yoga. I hated it. I hated not feeling like myself and being able to do what I wanted to do. Isn't that how my clients feel too? Many clients feel depressed, angry and overwhelmed. Many lack the resources to do the things they like to do.
What did I do? Well, I asked mom and dad to send my pictures of the little angel. Bless their hearts, they were religious about it, and I had quite a collection by the time I could visit. They let me know how she was doing. I also embraced my physical recovery period as a message from my body to just stop; I realized that recovery is as important a part of fitness as the workouts themselves and by reframing, I could recover without guilt. You can do the same. Depression and anger are natural parts of the process of grieving loss; and in the Trenches, it's the loss of what was. The only way to get through those parts and get to acceptance is to embrace them as a natural part of the process. Part of that acceptance is accepting that life will change (by the way, life always changes), and adapting to the limitations and realities of your new life. Can you reframe what is happening? Can you find a workaround? Figure out what is most important and why, and I bet you'll come up with a solution.
Third, just as medical "science" changed its tune about what is best for babies in the 5.5 years between my son and daughter, so has it changed numerous times since then. All the rules for babies are different than when I was the mom of a newborn. Our minds become less flexible as we get older, and it's hard to rewire your parent brain to the new rules. What I could "get" easily as a young mother takes more time as a grandmother. It's hard, and frankly, some of the new rules make no sense to me. Still, I am working mightily to deal with the new reality and make it part of me.
Isn't that also what my clients do? The rules of divorce are something you have hopefully never dealt with, and if you have, certain aspects of the law have undoubtedly changed since then. The rules of dating are different. Life as a single is different than life as a couple. You have to adapt to move forward. Otherwise, you're the man in the blue leisure suit or the lady with the bouffant hairdo - out of touch and living in the past. Embrace the change and adapt to it. It will help your recovery, and as a bonus, will help maintain your mind's plasticity. Here in the Trenches.