Eric Solotoff, a partner in our Roseland, New Jersey office and editor of our New Jersey Family Law Blog recently posted a blog entry on bad faith negotiating and its detrimental effect on settling cases. Eric's point is well taken: there are times in family law cases when people lose sight of their goals and try to land a (proverbial) shot on the other person. Empty demands, veiled threats, and open hostility become the rules of the game rather than honest discussions on finding a resolution and that rarely leads to a satisfying outcome for either side or their counsel.
The new client walks in the door, obviously nervous about his or her case being the subject of a public trial in the county courthouse.
The first thing I tell them is that most third parties are not interested in their divorce case.
The second thing I say is that most of the cases I handle resolve without the need for substantial litigation, although there may be a hearing or two along the way.
However, most recently I have found that I am trying a few more cases than usual, and I'm winning. I'm not saying that so that readers will think: I've got to have Charlie Meyer as my lawyer. My real point is that, while I have written in the past on the importance of professionalism and civility in the practice of law, especially in domestic relations practice, I now am finding that lawyers are taking positions they cannot possibly defend and upon which they cannot prevail.
I am reminded of the time when, as a young lawyer, I met with an "experienced" (read "older") lawyer in his storefront office to discuss a support matter. It obviously was a case which would be decided under the Guidelines. But to my surprise, his position was that "he didn't use 'those' guidelines". Needless to say, we went to court, and the guidelines were applied.
This story is illustrative of what I am finding more and more in my practice.
I have tried three significant cases in the last few months, and in each case, after requesting a proposed order, the Judge basically copied my order in fashioning the Court's order. Why is this? Because I'm so smart or so persuasive? I'd like to think so, but the reality is that I had a strong knowledge and understanding of the facts and the law, and, even more importantly, in trying to settle the case and then in trying it, I took positions which were reasonable.
In two of the cases which were support related, the Court's Order was actually less than my client offered to settle the case. Rather than properly advising his client, each of my opposing counsel in those support matters told me I was crazy and that they would see me in Court.
And the sad part of each of these cases is that unnecessary legal fees were spent.
What can be learned from this as both the lawyer and the client?
- Know the facts of your case.
- Know the law as it pertains to your case.
- Make reasonable settlement proposals and/or consider reasonable settlement proposals.
- Make sure your client understands the facts and law so that she or he can make an informed decision as to whether to accept or reject an offer. Also, make sure your client weighs the cost of litigation vs. the compromise of his/her position.
- When trying your case, do your best to make certain that the Court knows you have and continue to take reasonable positions. Do not subscribe to the theory that you should throw as much against the wall as you can to see how much sticks.
Civility, Professionalism, Honesty, Reasonableness. The implementation of these four concepts in domestic relations matters is essential.