How Much Is Going to Trial Worth?

One of our Domestic Relations Masters in Frederick County has a very effective way of breaking impasse at settlement conferences.  For those of you not familiar with the way the judicial process works in family law, a settlement conference is a date for everyone to come to court to try to settle their case, with the aid and input of a Domestic Relations Master.  The settlement conference is usually set after most of the discovery in the case has been completed, after the initial court appearance, after a temporary support or child access hearing, and after 2-3 hours of court-ordered mediation.  If the case hasn't settled by the time of the settlement conference, it is either almost settled, or so far from settled that the attorneys have begun to despair that it will settle.  These latter folks are headed to trial, and usually the report to the Domestic Relations Master at the end of the settlement conference is that there is no settlement.  That's when this particular Master kicks it into high gear.  If you'd like to follow along, grab a piece of paper and a pen.  The Master tells each party to take out a piece of paper and a pen.  Then he says:

• On the first line, write down the amount of attorney's fees and costs you have incurred before today.
• On the next line, multiply your attorney's hourly rate by three, and that's how much you spent today.
• On the next line, multiply your attorney's hourly rate by eight, and that's how much you can reasonable estimate you will spend on the depositions that are going to be set because you didn't settle.
• On the next line, multiply your attorney's hourly rate by four, because your attorney has to prepare for the depositions.  Don't forget to factor in your lost wages for the time you need to take off work to prepare for those depositions.
• Transcribing depositions testimony costs money, so write down $1500 for the transcripts of the depositions.
• You're going to trial, so on the next line,  multiply your attorney's hourly rate by 7 and then multiply by the number of days of trial.  That's the cost for your attorney during trial.  Don't forget your lost wages here again.
• You don't expect your attorney to show up for trial without being prepared, do you?  Of course not, so multiply your attorney's hourly rate by 16 and then multiply by the number of days of trial.  That's how much it will cost you to have your excellent attorney be prepared for trial.  Don't forget your lost wages because the attorney has to prepare you for trial.
• You're required to update your discovery responses until day of trial.  Add another $1700 in cost for that.
• Your attorney needs to issue subpoenas for witnesses and do other miscellaneous tasks before trial.  Add another $1500 for that.
• Did you know the Assignment Office regularly overbooks us?  They do, so your case might not go to trial on the scheduled date.  That means your attorney will have to spend some time re-acclimating herself with your case for the date it is reset.  Add another $2500.
• Oh, you weren't happy with the judge's decision and you want to appeal?  Add $8,000 for the appeal.
• Now add all of those numbers together and write that sum at the bottom of the page.
• Turn the paper over and write down your children's names and dates of birth.  Think about all of the things you want to do for them, like send them to camp and college, all of which cost money which you just spent on your divorce.  Your attorneys and your children would rather you spent the sum of money you wrote on this paper on your children and not your attorney.. Now, go on out and try again to settle.

Would you be surprised to know that his settlement rate is well over 80%?  I'm not.  What this Master doesn't add in are the non-financial costs of going to trial:  the emotional costs of having to appear in a courtroom and testify in open court; the relationship cost of an adversarial proceeding on the ability to co-parent; the relationship cost of asking friends, family and co-workers to appear in court for you.  All those costs are potentially higher than any economic one.  Sure, sometimes people settle for less than they might get in court, but is what they will get in court worth the cost of the litigation?  It's a question you need to ask - here in the Trenches.