What about the effects of litigation on the children? One respected judge says that she cannot remember any custody litigation that did not have some negative impact on the very children whose best interest was supposed to be the paramount goal of the court and the parties. Members of the mental health community are uniform in their view that children of divorce experience a high risk of trauma, confusion, fear, and negative feelings about themselves during the course of a contested custody proceeding. Children usually become aware of disputes between their parents, even when parents try to insulate them from involvement. Practitioners recognize that many clients consciously or unconsciously draw their children into their disputes, complaining directly to their children about the other parent, using their children as messengers, or talking about the other parent with third parties while a child is present.
A settlement does not guarantee a better outcome for the children of divorce, but it is surely better than ongoing and destructive litigation. It has been suggested that with two adequate parents, a decision about custody based on the flip of a coin may result in a better outcome for the child than ongoing custody litigation, where parents attack and criticize each other to gain an advantage in the contested custody proceeding.
Professionals generally agree that it’s best for each parent to have reasonable access to the children, except in cases of physical or sexual abuse. Recognition of this view should be the starting point for the consideration of custody issues in just about every case.
Let’s not forget the effects of litigation on the family law lawyer. Family law is a difficult practice area. Members of the family law bar observe “burnout” in their colleagues and sometimes in their own personal lives. High stress and high performance expectations exact a toll on the human body and mind, even with very experienced attorneys. Mental health professionals tell us that “compassion fatigue” can occur with lawyers as a result of an endless number of clients with real needs no conscientious lawyer could possibly satisfy, no matter how hard she tries or how many hours she works. Of course, the client’s needs come first. But common sense suggests that lawyers also benefit when everyone works cooperatively to resolve issues by settlement rather than litigation.
Need more reasons to settle a family law case? How about the fact that a settlement offers more opportunities for creative solutions of disputes and problems arising as a result of the separation and divorce? In Maryland, for example, a divorce court has no authority to require a spouse to provide life insurance coverage for the benefit of a child or for a former spouse receiving alimony. However, nothing in Maryland law precludes the parties from providing for this as part of a settlement. Similarly, parties can agree on provisions in a settlement that constitute or allow mutually favorable estate and tax planning. Contributions to the cost of college, not subject to the court’s authority, may be agreed upon and made enforceable by settlement.
Settlements can also reduce legal fees and the costs of litigation. Litigation is expensive, and family law disputes are no exception. In cases with wealthy clients, the parties may be able to afford the high cost of litigation, but for most clients, most of the time, the fees and costs are devastating. Parties often must use funds intended for other purposes, such as college, retirement, or emergencies, to pay legal fees and costs. With a settlement, the legal fees and other expenses of litigation come to an end. Clients are always pleased when they are no longer receiving a monthly legal bill.
Obstacles to Settlement
Don’t get me wrong. Despite the advantages of settlement, many potential obstacles face the lawyer who expects a new case to settle at some point. For example, lawyers know that divorce cases are very likely to settle, but the new client usually is not aware of this reality. A client may be skeptical or resistant when the lawyer, just engaged to provide representation, begins to talk about a settlement. It is a testament to the skill, experience, and courage of the family law bar that almost all family law cases eventually settle despite the obstacles.
In most cases, the opposing lawyer will be a significant factor in any effort to achieve a settlement. The opposing lawyer is the formal representative of the other party but is frequently an excellent source of useful information about the case, particularly the weaknesses of your client’s position and the strengths of his. Your own client may be reluctant or unwilling to tell you about the flaws in the case or may not even be aware of them, but the opposing lawyer will usually be only too happy to tell you the negatives about your client’s conduct.
If the opposing lawyer is reasonable, it will be easier for you and your client to be reasonable, and the path to a mutually acceptable resolution may come into focus after financial disclosure occurs. In cases in which the opposing lawyer is unreasonable or inaccessible, a lawyer who wants to settle the case needs to develop a plan that forces the opposing lawyer to confront the reality of the case and understand the benefits of a settlement for the lawyer’s client. Sadly, some attorneys steadfastly refuse to engage in meaningful settlement discussions, even when encouraged by the court.
Your treatment of opposing counsel may significantly affect when and how a settlement occurs. Civility is important and is often reciprocated. Courteous and professional dealings promote settlement. Views of the case may converge as the underlying facts and circumstances are developed through discovery and investigation. When that occurs, a reasonable settlement becomes more and more likely.
Client expectations present yet another potential stumbling block. Clients want to “win.” This often includes a desire to defeat (or even destroy) the person who was once the beloved spouse and the mother or father of the client’s children. Sometimes it helps to remind clients that if an effort to destroy a spouse succeeds (for example, by public criticism of a professional’s conduct or ethics), it may reduce the earnings otherwise available for alimony and child support. It may also help to remind clients that the results of a divorce proceeding will play out over the years that follow, at graduations and weddings of children and in access to grandchildren, so that attacks on the other spouse may prove ill-advised over the long run.
All clients want to win, and many believe they are entitled to win and so never doubt the judge will award them what they want and deserve at trial. When this kind of client hears the word “settlement,” her initial reaction may be that it sounds more like a loss than a win. The client may believe that advice to settle reflects the lawyer’s lack of confidence in the case or an unwillingness to “fight” for the client, as her knight in shining armor. It may seem inconsistent with what happens in TV dramas, movies, books, and other fictional accounts, where the worthy (or innocent) parties, with truth on their side, invariably succeed in the end.
The lawyer knows that TV dramas are not reality, but many clients do not. Your client may expect you to overcome all obstacles and hurdles because the client’s cause is just. When you raise the advisability of a settlement as an alternative to the risks and uncertainties of trial, clients may feel that you are ready to abandon them in favor of the opponent.
One wise settlement judge says that in almost every divorce case, each party bears some significant part of the responsibility for the failure of the marriage. For many clients, this is a difficult concept to grasp or accept, and some will not accept it. Most clients are not objective about their case, and some never achieve any reasonable perspective. One major responsibility of the lawyer is to be objective and to advise clients how the case is likely to be viewed and decided by a judge. This includes the unpredictability of how a judge will decide the issues in a case. Many clients see their divorce or custody case as black and white, with their position faultless and their spouse’s claims utterly without merit. The lawyer must explain to the client why the case will probably be seen by the trial judge in some shade of gray.
Some lawyers are reluctant to tell their clients that their expectations are unrealistic. Sometimes clients will not “hear” the lawyer or accept the lawyer’s accurate analysis of the case, believing they know better or that their lawyer is just plain wrong. In those situations, it can help to involve a settlement judge, a mediator, a close relative of the client, or a consulting lawyer. Confirmation of the lawyer’s views and advice by a respected person who can speak with authority may persuade the client to accept the lawyer’s advice.
The old shibboleth that making a settlement proposal demonstrates weakness should be disregarded by the modern-day family law lawyer. Making the first offer at times may be more difficult than responding to an offer from the opponent, but the fact of a first offer is only an indicator of weakness if the lawyer allows it to be so. Many lawyers have obtained satisfactory settlements by ignoring this advice and presenting a well-considered proposal that advances the negotiation of a settlement .
One lawyer in my jurisdiction, when he wishes to settle a case, calls the opposing lawyer to suggest settlement terms, saying that the dispute should be settled before the parties exhaust their financial resources with large legal fees and expenses. He then calls back every day or so and actively pursues settlement. These vigorous efforts to settle the case often succeed.
Why Trial, Not Settlement?
Another obstacle is that lawyers, for many reasons, often prepare for trials instead of preparing for settlements. Practitioners know that the vast majority of their cases will settle, so one might logically suppose that experienced lawyers would focus most of their time and effort on the settlement of their cases rather than on litigation and trial, but this is not the case. From the time that a lawsuit is filed, most lawyers, most of the time, proceed as though every family law case will eventually be tried, not settled.
The reasons for this are many and very understandable. One is that law schools focus on the trial and the trial process, not settlement. Law students may have few courses where they are required to study the theory or practical skills of settlement. Instead, they will take courses in civil procedure, evidence, trial advocacy, and other trial-oriented subjects and skills. Continuing legal education for practicing lawyers provides many courses about trial skills but far fewer about settlement. Part of the reason for the imbalance is probably the existence of specific rules and many reported cases governing evidence and procedure, while there are no “rules” of settlement and only a limited number of cases that explore settlement methods or techniques.
Yet another reason is that cases decided by appellate courts are circulated among practitioners, law libraries, law students, and others, while settlements of family law cases are rarely if ever reported anywhere, and the details of most settlements are unknown. Also, because settlement discussions are typically privileged, they are rarely mentioned or analyzed in decided cases or in news reports. Thus, while trials are public and open to the press, and the issues arising in trials are discussed in appellate opinions read by lawyers, a lawyer typically has only personal experience to rely on for knowledge about settlements.
Nor do settlements provide much entertainment. A trial is exciting and dramatic for the lawyer and client, and sometimes the public. Settlements are not. A trial is a public event, occurring in a public courtroom, with witnesses, experts, testimony, cross-examination, and oral argument, while settlements occur quietly out of the public eye in private law offices and conference rooms.
Another reason for the attention on trials rather than settlements is the legal profession’s historic lionizing of trial lawyers, with famous ones remembered and renowned for their skills and victories in the courtroom. By contrast, settlements are detail-oriented, often tedious, with provisions only a lawyer can understand or care about. This is why the news media, including the newly established legal news media, hype public trials but give short shrift to private settlements except to mark their occurrence in high-profile cases.
Under these circumstances, it is completely understandable that family law settlements and the lawyers who achieve them receive little recognition from their peers or the public. Nonetheless, the preparation of family law disputes for settlement is paramount. Family law lawyers typically develop a game plan for litigation, complete with lists of possible witnesses, key documents, and so on. As a matter of logic, preparing a plan for settlement should be just as important, arguably more so given that the vast majority of cases settle. What does the lawyer need to find out and do to achieve a settlement? In many cases, it is obvious at the scheduling conference or the settlement conference that opposing counsel have given little or no thought to a settlement. Sometimes, the lawyers have never even talked about one, with each party waiting for the other to initiate discussions or with one or both lawyers too busy with other matters.
Efforts spent on discovery can improve the client’s settlement posture in family law cases. Financial data are often the most important information needed to evaluate the settlement of alimony, child support, and property issues. Nonfinancial information may be critical in child custody disputes. In propounding written discovery, the lawyer will usually have the same questions and request the same documents for both trial and settlement preparation; nevertheless, the lawyer should consider whether there are questions or documents of particular use in the consideration of a settlement.
When responding to discovery requests, conventional wisdom encourages carefully crafted non-answers. This approach is usually counterproductive to the primary goal of a favorable settlement. In other words, if you want the best possible settlement resolution, it’s usually a good idea to make a full and persuasive presentation of your case in discovery responses. These responses, viewed as an annoying and time-consuming chore by many lawyers, should instead be treated as a golden opportunity to present the case in a logical and convincing way, as a means to move toward a favorable settlement.
For example, many lawyers keep their answers to the opposing party’s interrogatories short and limited, if not completely uninformative. The goal is to provide a smaller target for cross-examination and sometimes to save the client’s most favorable information until trial, when it can be used to surprise and overwhelm the opponent. In fact, taking this approach means that a lawyer’s most favorable evidence may never be presented to the other side because the case will likely settle before the information is presented at trial. If the goal is a favorable settlement, it is a sound strategy to reveal the strength and depth of your position in answers to interrogatories.
What about depositions? Most authorities on depositions advise parties (and witnesses employed or controlled by parties) to give short, minimal, barely responsive answers. The conventional advice is to answer each question briefly, on the most narrowly plausible basis, to provide a minimum amount of information as a means to avoid the risk of creating discrepancies that can be exploited by the opponent in cross-examination and the risk of providing information the opponent can use to pursue yet more information. But if you have favorable testimony, or a good “story” to tell, the adoption of a minimalist approach surrenders an opportunity to present the strong points of your client’s position. A well-prepared party (or witness) who provides thoughtful and complete answers may help position a party for a favorable settlement, with no real harm if settlement does not occur and the case goes to trial. This unorthodox approach was detailed recently in this magazine. See Kenneth R. Berman, Reinventing Witness Preparation, 41 Litig., No. 4, (Summer 2015), at 20.
How to Encourage Settlement
So, what can and should be done to encourage settlements? First, acknowledge their importance. Given that almost all judges, academics, and practitioners believe settlements are good and should be encouraged, bar associations and leaders of the bar should encourage courts and lawyers to consider and explore them in every case. Settlements should be applauded, and practitioners known for their skill in achieving them in difficult cases should be accorded recognition similar to that given to those known for their trial skills. Practices that impede settlement, including the lack of civility, should be discouraged.
We should refer cases to lawyers who achieve reasonable settlements by reasonable means. One discouraging aspect of referrals is the frequently stated preference for a lawyer who is “aggressive,” not one who is “cautious,” “competent,” or “capable.” Those who seek aggressive lawyers appear to be looking for someone who will do more than seek a reasonable resolution: They appear to want someone who will try to get more than a fair share for the client. Do referring attorneys really prefer a lawyer who will fan the flames of anger on the part of clients, encourage litigation, and increase the legal fees? In most family law disputes, clients would be well advised to select realistic and capable lawyers, not warriors who will create greater conflict and greater expense.
Law schools can help promote settlements too. They may never offer courses on settlements and trials in true proportion to their occurrence, say, 95 percent of the curriculum devoted to settlements and 5 percent to trials. But it would make sense for law schools and bar associations to provide a greater emphasis on settlement, particularly in family law disputes, and to establish courses that focus on methods to resolve these disputes.
Courts can play a major role in encouraging settlement of family law disputes. Court rules and schedules should facilitate settlements by establishing opportunities for settlement conferences or mediation. Sometimes the initial reluctance to discuss settlement is nothing more than bravado or a lack of imagination about the possibility of settlement or the failure of busy lawyers to raise or explore the possibility of settlement with their clients until the eleventh hour.
Settlements are good. Because they occur or can occur in almost all family law cases, lawyers should give careful consideration to the means and methods by which they may be achieved. No doubt, a settlement will rarely have the same excitement and suspense as a trial. So if a lawyer wants glory, fame, or wealth, the decision to practice in the field of family law should probably be reexamined. But for those who do not mind the challenge of difficult and emotional issues, and for those who find meaning in working with clients who need legal advice at a time of personal crisis, the practice of family law—and the settlement of family law disputes—remains rewarding and honorable.