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.
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