The high cost of litigation

Family law litigation is expensive, both financially and emotionally. To make sure you understand this fact, your family law lawyer should bring up the high cost of litigation at the initial conference. He or she may reinforce it on a monthly basis when invoicing you for services and costs.

Your family lawyer should discuss with you the specific costs of trial even before the pretrial settlement negotiations begin. Once the initial discovery phase is completed, your attorney ought to have a good handle on the issues and the facts, and the amount of time and expense a trial will involve.

Discussing the cost of trial with you after discovery has been completed should not involve any big surprises, because your attorney should have had more than one discussion with you by now about the fee the attorney will charge to try the case, as well as the other costs of a trial such as the cost of experts, subpoenas, and depositions.

The discussion should involve not just the cost of the litigation, but what you and your attorney hope to achieve by taking your case to trial.

• What particular goals does your family law lawyer think can be achieved at trial that cannot be achieved by settlement?
• Why does your attorney believe that trial will succeed where negotiations have failed?
• How does your attorney plan on convincing the judge that any recommendations the judge made for settlement should not be implemented in a final judgment, and what will convince the judge that his or her recommendations were wrong?

The decision to take a case to trial should be based on objective criteria, and a cost/benefit analysis should be a significant part of the discussion. Perhaps you or your attorney feels that the judge is too stingy in his or her pretrial recommendations. Your attorney might feel that the client is entitled to a more significant disproportionate share of the marital estate, or more of a contribution to the support of the children.

The decision making process should not be viewed from a single approach. For example, if the judge recommended a 55/45 split in your favor, and your attorney thinks the case calls for a 60/40 division, your attorney should advise you what the 5% difference means in dollars and cents. Is it worth spending $10,000 to try the case to recover an extra 5% when the marital estate is only valued at $100,000.00?

Similarly, if the judge recommends support of $1,000 per month for your 15 year old, and your attorney thinks the correct amount should be $1,200 per month, how much time and money is going to be spent convincing the court to order the extra $3,600 to be paid over the next three years until the child reaches 18?

Your attention must be focused on the economic, not the emotional, aspects of taking the case to trial. Your family law lawyer should not allow (or worse yet, encourage) you to take a case to trial based upon emotional considerations, such as a desire to punish your spouse, prove a point, or worst of all, as the final act of a scorched earth philosophy. Going to trial for any of these reasons is a bad and usually dangerous idea.

It is a bad idea because:

• It is harmful to your post -divorce relationship with your former spouse, which generally means ongoing bitterness, probable post judgment litigation, and continuing harm to the children.
• No litigant is ever completely satisfied by the judge’s decision, regardless of outcome. No decision goes precisely the way either litigant wishes, and as a result, there will always be something to be dissatisfied about.
• It is far better for two people to come to an agreement of their own than to have a stranger who wears a black dress for a living tell them what is going to happen to them and their children for the rest of their lives.

It is a dangerous idea because there is always a risk to litigation and it could end badly for you. Most well adjusted adults are able to deal with and get through the trauma of divorce, even when they suffer a “bad beat.” Individuals who push cases to trial based upon emotional agendas don’t fall into that group. Judges have a tendency to recognize the motivation of those individuals, and in an area of the law where there are few black and white decisions and large grey areas of discretion, the emotionally motivated person tends to fare poorly.