Where Does the Lawyer Fit In?


Every experienced family law practitioner knows that while each case has common threads and patterns for solution, the completed tapestry, the final agreement between the disputants, is unique. Nonetheless, there are some basic rules most of us follow when starting a new case that we hope will be negotiated to a satisfactory conclusion. First, we know that to negotiate effectively, the couple in conflict needs information about what a court might do if there were a contested trial. A lawyer can be helpful at predicting how the law will be applied to a particular divorce case if it goes to trial; in fact, most experienced practitioners can predict likely outcomes with about 90% accuracy, once they have all the available facts and those facts are adequately communicated to the client. The client is uniquely situated to provide the facts, and the lawyer the law, so that together they can predict outcomes. However, that is only the first step. The second step, training the client in those techniques which will get the client within an acceptable range of outcomes, while avoiding an expensive trial, is more difficult.

Unfortunately, few lawyers are well trained in negotiation techniques that help couples stay out of court. The traditional law school curriculum, until recently, emphasized litigation as the primary problem solving mechanism, with little differentiation in technique whether the matter was a contract dispute or a custody lawsuit. Moreover, most attorneys have even less experience in training their clients how to negotiate. Yet most divorce cases settle, often despite the attorneys, because the clients finally reach a point in the process where consensus overcomes contest.

In the past several years, I have had to take only one divorce case to trial. Yet I handle perhaps one hundred litigated divorce cases per year. That case did not settle because my client's husband lacked an acceptable understanding of the law and how it applied to the facts of his case. He also failed to take into account the personality of both parties and their attorneys. Lastly, he violated basic negotiating techniques by withdrawing a reasonable offer before it could be accepted. Although I had taught my client the likely legal outcomes and had even done videotaped training sessions in negotiation styles, we went to trial. The trial outcome was within the range of predictability and was so disadvantageous to him that he has now appealed. No one wins, except the attorneys, in cases like this. How could this unfortunate result have been avoided? The balance of this paper discusses some approaches.

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