one parent is “better” than the other.
I’m also not interested in acting for clients who lie to me, won’t pay child support, or expect me, as their lawyer, to prove a fact which is unimportant in law, such as adultery. However, that’s just me.
What I see, with some frequency, are clients who have wasted money on lawyers. These would include spouses who have deposited a big retainer with a lawyer, and then instructed the lawyer to “process the divorce.” Sometimes, equally vague and ridiculous instructions such as “do your best.”
I know this happens because I often encounter counsel on the other side of a case who is unaware of exactly what their client wants. As I write this paragraph right now, I am handling a case that is set for trial in three months. We have had several days of discoveries (what most Americans would call depositions) and a few pretrial motions. The case has been going on for about a year. During that time, I have written to opposing counsel three times asking for a response to our offer, a counterproposal, or anything resembling a reply, but I have heard nothing. It is all quite exasperating.
I know that the other party has already paid a little more than $15,000 in legal fees so far, and is probably about to spend a similar amount over the next few months. I suspect the amount that we’re arguing about (the “quantum” in issue, and the amount which separates our clients) is $40,000 to $80,000. It may be that if I could encourage the opposing party to simply respond with an offer or counteroffer, I could encourage my client to settle, but I can’t. I cannot negotiate with myself.
Worse still, I know that the other side will soon be forced to describe the demand, because at the start of the trial, the judge is going to ask.
In this case, I suspect that opposing counsel is well retained and simply allowing her client to call the shots. The client doesn’t know exactly what she wants, because she (like Mrs. G, in the example in Chapter 1) is really pursuing something other than a solution — she wants blood, or justice, or some other ill-defined objective. Sadly, none of those can be achieved through litigation.
What should really be happening is this: The opposing lawyer should sit down with the client and have a heart-to-heart and say something like this:
We’re now at a point in this lawsuit where we know enough about the facts to respond to the offer that’s on the table. We should do that. I have done everything I can for you. You and I know that there’s a range of possible outcomes here. If I do a brilliant job, I can obtain for you a resolution that is beneficial to you and within that range. I cannot, however, change your spouse’s personality, get you all of the assets, or perform miracles. Your spouse offered to pay you $80,000 for your claims. I know you want more. Your case may be worth more, but it’s not worth $150,000. Let’s talk about a response now. It is time to find out if we can settle. If we don’t settle now, I’m going to have to explain your position to the judge in a short while so we might as well know that now.
Sometimes, that is a conversation that can and should occur at the outset of the retainer. Maybe the discussion cannot be so pointed and direct at the start of the solicitor/client relationship, but something similar can and should occur. This is what I mean when I say that I believe that clients waste money on lawyers. If you don’t know what you want or expect at the outset, how can you provide proper instructions to the lawyer? That’s like getting in the car to go for a drive, but not having any idea where you want to go or if you have enough cash to get there.
I know that it’s often impractical for lawyers and clients to have settlement instructions at the beginning of the retainer. Quite often, the basic facts about the case are not known. A party cannot be expected to give settlement instructions if the issues aren’t identified, the facts are unclear, and the options have not been explored. Giving settlement instructions and clear directions early on may not be possible.
Still, in the vast majority of cases, the client knows enough at the very first interview to give directions. Most spouses don’t know the precise fair market value of the home in which they live, but they have some idea. Similarly, they may not be intimately familiar with every detail of the savings portfolio, but they know where to find out (usually, with a phone call). After all, it’s their life that’s at the center of the case, and most of the facts that the lawyer needs to know can be ascertained in that first meeting. There may need to be subsequent phone calls or inquiries for details later, but the big picture can be learned quite simply in an hour or so.
That’s not the case, of course, if there are safety issues, hidden assets, or other special considerations. In those cases, information gathering may be involved, and the legal issues complex. In most separations, however, the basic information — the basic story — is actually quite straightforward. In such circumstances, it’s quite possible at the first interview to form a general idea about where the settlement discussions should be headed. If that’s not possible, the discussion should occur as soon thereafter as possible, in order to ensure that counsel and the client are on the same page, and in order to focus the legal work.
Too often that appears not to happen until after countless hours of legal work have been done. At that point, the parties have incurred legal expenses and become positioned in their views, and settlement becomes more difficult.
In most cases, it’s important to know what you want and expect at the outset. It’s important to think about those objectives before you commit resources to the exercise. It may also be important to know what the law permits. You should know what you are entitled to before you provide final settlement instructions. Saying to the lawyer “all I want is what I’m entitled to” is almost certain to lead to big legal bills, delay, and frustration. Know what your rights are, but seek relief that matters. And always keep an eye on settlement.
There are, of course, exceptions. As I explain in Chapter 4, if there is oppression, violence, or dishonesty in a relationship, it may be necessary to litigate, or at least commence litigation before you can meaningfully discuss settlement. Moreover, if one of the parties is disabled, the litigation process may need to be invoked for other reasons.
For the vast majority of separating spouses, however, litigation is just not necessary or productive. The clients who profit from litigation, who are able to endure the process and come out “better for it,” are few and far between. For most spouses, lovers, and parents, the court process is a costly and horrific system that brings little happiness and leaves few survivors.
There’s a story that is sometimes told about a wealthy and successful American entrepreneur. During an interview with a reporter, the entrepreneur is asked about his successes. He rambles on for several minutes about his properties, about various stock deals, land swaps, and several other clever accomplishments. He boasts about his cars, his corporate holdings, and his growing wealth. Then, the conversation turns to failures.
The reporter asks if the wealthy businessman has ever suffered losses.
“Oh yes,” he reported, “I’ve had two very bad financial failures. Once, I lost a lawsuit. That cost me a king’s ransom.”
Then reporter asks, “ … and the other time?”
“ … was when I won a lawsuit.”
There are many reasons to avoid litigation. Some of the most common reasons are financial. However, some of the best reasons for avoiding a lawsuit have nothing to do with money.
Civil litigation is a process that should be utilized for resolving disputes which cannot possibly be resolved by any other means.
In some matters, litigation is inevitable. For instance, if the truth is impossible to ascertain unless tested by a judge, a lawsuit may be unavoidable.
