Saturday, July 21, 2018

What Scares Me Most, And Why I Do it Anyway

What is the most frightening thing we do here in the Trenches?  Is it going to trial? Nope.  Is it taking depositions? Nope Is it talking to a client after a bad result in trial?  Nope.  The most frightening thing we do here in the Trenches is none of the above; it's....settling the case.  Settling the case?  Are you kidding me?  What could be so scary about that?  I'm so glad you asked.

If you are the attorney, settling a case, especially a case that is about to go to trial, is petrifying.  We always wonder if we could have gotten our client more or better.  We wrack our brains to make sure we didn't leave something on the table.  We wonder if the other side is laughing at us because we left out something elementary.  For me, I add and re-add every possible division of assets to make sure what I negotiated for my client is acceptable.  I run every possible scenario of custody through my mind.  I go through the alimony number with my client's budget.  I think back to everything I've learned about the other side to see if we leveraged everything we could.  For my own client, I think about what they have told me about their needs. Does the settlement meet their needs?  Will they be able to move forward with their lives? They won't end up destitute, will they? 

Sometimes a settlement is a good thing because it's a good result for our client.  Sometimes a settlement is a good thing because it made lemonade out of lemons.  Sometimes a settlement is just a way to move on.  As the attorney, you need to be able to assess which of those types of settlements is possible, let alone preferable.  Sometimes, a win is just not losing.  That latter type of settlement is particularly hard, because we always want the best for our clients, even when they've behaved badly, and we know a settlement is the only way to make that happen when they've behaved badly.

Clients have the same worries as us.  They simply get to add to that equation the emotions of the marriage being over, the conflict being resolved and the fear of being victimized by someone who knows them so well, loved them before, but now likes them so little.  Settlements are frightening.

Let's take a minute and talk through my top five reasons why, even with the fear, I like settlements, especially relatively early settlements:

1.  They create certainty.  You know what is going to happen and how because you crafted it.  You don't have to worry that some stranger in a black robe is going to view your reality and interpret it differently. Settlements take away the risk factor inherent in having a third party make your decisions.

2.  You retain control.  You make the decisions that affect your life, not someone else.

3.  You have time on your side.  You have time to talk to your lawyer.  You have time to talk to your accountant.  You have time to process with your therapist. You have time to think about what you are going to do BEFORE you do it.  You have time to include all the details that will make or break a successful agreement.  When you're at trial, or on the eve of trial, pressure makes it hard to process and to weigh your options, let alone ensure that all the details are addressed.

4.  You don't go to trial.  This seems obvious, but what people tend to forget about going to trial is the emotional cost.  The pressure of the uncertainty is stressful.  Having to sit in a courtroom quietly while attorneys and witnesses dismantle your life and view all of your actions under a microscope is a special kind of hell.  Did I mention you have to sit quietly while this happens?  Listening to someone who may be your co-parent for many years trash you on the stand, and you do the same to them, and then be told to go out and co-parent successfully is mind-boggling.

5.  You save money.  Big time.  Once I start to gear up for trial, your legal fees skyrocket.  It is fair to say that no matter what you have paid me up to trial preparation, you will pay me easily double or triple that to go to trial.  When I assess a settlement proposal, I always remind the client about the cost of going to trial, as that is money that will no longer be available to them to support their children, buy a house or fund their retirement.  That money, should we go to trial, will do all those things for me.  It's a rare, very angry or very mentally ill person who would rather pay me than keep it in the family, even if it means half of those funds go to their spouse.  The thought that the court will order the other party to pay attorney's fees is a lovely thought, but a rare occurrence.

Not every case can be settled.  It takes two people to make a mutually acceptable agreement.  Even if your spouse is incapable of settlement, however, the exercise of figuring out what would be acceptable to you is important.  You need to be able to articulate what you want to the judge when you go to trial, and to do that, you need to dig down and decide what matters to you as you move forward.  Nothing we do in the Trenches is ever wasted if it moves you closer to having a future life which meets your needs.  Settlement negotiations do that, even when they don't result in an agreement.  Even if the thought of settling is scary.  Here in the Trenches.

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