Tuesday, February 7, 2012

"What Would You Do?"

Clients often ask me to tell them what I would do if I were in their place when we are at a crossroads in a case. That's an understandable question when facing a difficult decision, but I don't like to try to answer it because: (1) it's really not my case, (2) it's not my life being affected and (3) I can't fully put myself in my client's shoes. Instead, I try asking questions that help my client consider different points of view and better understand the consequences of different courses of action.

A recent article in the Huffington Post online
answered the question, "What do Divorce Lawyers do in Their Own Divorces?" It's a good article and I agree with the analysis and conclusions. The answer is that divorce lawyers, who know the most about the system, try to stay out of court. They negotiate and try to settle their cases without court appearances, or at least without going to trial. Just about every divorce attorney or judge I know who has been divorced has worked very hard to keep their case out of court. Here are some reasons why.

1. Going to court often wastes time, energy and money. Courts don't run on time and are often very slow. It is very common for cases to get reset and it drives clients crazy -- understandably so. It's stressful getting ready and appearing at court. And of course, it's very expensive: waiting around, slow hearings, breaks in the hearings and resets all add to the bill. On many levels, going to court is wasteful.

2. Court is never like the movies of TV. Whether you like Perry Mason, The Practice or Boston Legal, they don't portray what you will experience.

3. Attorneys know the consequences to fighting. Some attorneys will encourage fighting because they sense that's what their client wants to do, and sometimes there's no choice if the other side chooses that approach. Still, attorneys know that fighting is ultimately destructive and expensive. If they can avoid it for themselves, they will.

4. There's really no winner if you go to court. Sure, you will probably eventually get a decision from the judge, but you very likely won't be satisfied with a lot of it. Judges tend to spread out the pain and have something good and something bad for both parties. Judges rarely see a case where only one party is at fault. Almost always, both parties have done bad or dumb things that can tick off the judge. You can't control the decision-making when you turn it all over to the judge. Judges must follow legal and evidentiary rules that can be frustrating for the parties who expect that they will win because they will just tell the judge "the truth". That doesn't really happen.

5. You usually don't get your day in court. Over 90% of cases will settle without a trial. That means you don't get to testify and have the judge praise you for your courage and honesty.
Even if you go to court, you never really get to say everything you would like to say. Most people leave the courthouse pretty upset about something in the judge's decision or how a hearing was handled.

So, what would I do?
  • Listen to your lawyer when he/she tells you to consider a settlement offer. Make a settlement your main goal.
  • Consider using Collaborative Law. It is a process that leads to peaceful, rational agreements between parties in a safe environment. Check out my Texas Collaborative Law Blog for more information.
  • You can also consider doing mediation early and not waiting to the end of the process, just before a trial, which is a common scenario. If you and your spouse start off preparing for mediation, it will be more efficient and will save money and reduce stress for both of you.

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