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. In family law, however, the truth is rarely the main frustration. Most often, spouses know the truth and getting to the bottom of the story isn’t the problem. Parties may occasionally lie or fudge the facts, but the truth is at least ascertainable, even if it’s denied.
There may be a few exceptions to this generalization, of course. Sometimes, the facts are truly disputed. If one spouse believes, for instance, that the other spouse has been hiding assets (and it is denied), it might be necessary to test that hypothesis in front of a judge, where credibility can be determined. Usually, however, the “he said/she said” contest in family law is largely immaterial, even though many litigants enrich their lawyers in the pursuit of winning such arguments.
In most family law cases, the facts are known with a high degree of certainty. That’s because the two star witnesses in the case have “lived” the facts, and are intimately familiar with them. Even though they may disagree about what’s best for the children, whether support should be paid, and who should get the home, there’s often little argument over the facts.
As a result, litigation in family matters is rarely truly necessary.
What’s surprising, however, is the number of family law cases where the parties approach litigation as (a) the best dispute resolution option, and (b) a practical method of resolving their dispute. In almost all families, better options exist. Moreover, litigation is usually anything but a practical method. Going to court to resolve matrimonial disputes is almost always expensive, unpleasant, cumbersome, and unnecessary.
In family law, almost all litigants lose. Even a wholly successful spouse, who claims to get everything, will typically later concede that the victory was illusory, unsatisfying, or Pyrrhic — achieved at excessive cost. Success in divorce litigation can bring some financial rewards, but it’s rarely a pleasing process. I think this is because of what’s at stake in family law litigation.
When couples who were once in love, raised children together, or shared aspirations, dreams, disappointments, and sleeping accommodations suddenly separate, discomfort is almost inevitable. Sometimes it’s downright nasty. These feelings of loss tend to increase the stakes and make the transaction (the “business” of separation) seem more dramatic and traumatic than it needs to be.
It is normal to have differing views about what’s right, how the spoils of the relationship should be divided, and what is best for children. Nuclear families argue about such matters all the time. When the parties are separating, it’s to be expected that the dispute will appear to be more acrimonious and troubling. It is partly for that reason that non-acrimonious methods of resolving the dispute should be explored. Unfortunately, many separating spouses do not know what the options are, or why litigation is neither realistic nor affordable.
Some spouses can resolve their contests in a civil and friendly way, but they are the exception. Others must resort to dispute resolution systems such as arbitration, mediation, collaborative law, or the courts. Those who find a solution with minimal legal trauma are likely to be happiest.
The fact remains, however, that not all separating couples can sit down at the