Posts Tagged ‘litigation’
Clients frequently ask me in a first consult how long a collaborative divorce process takes. And I spend a lot of time thinking about what makes cases so different and why some move faster than others.
One of the biggest variables I’ve found is the set of expectations that clients bring into a case.
Some clients bring in very few expectations about the end result. Some bring in great expectations about the ultimate outcome.
In my experience, clients have more efficient, faster, and less expensive processes when neither party brings unrealistic or rigid expectations to a divorce process. The reason is that an attorney has to spend a lot of time managing these expectations and working to create the flexibility and open-mindedness that produce the best and most efficient results. I can’t tell you how many times I’ve heard the phrase “managing client expectations” in seminars for family law attorneys.
The truth is that in all but the most extreme cases neither party can impose results or outcomes on the other, even (and maybe especially) in court. The vast majority of divorce and family law matters are resolved by mutual agreement. And mutual agreement obviously does not involve imposing outcomes on one another.
To be clear, expectations are different than hopes, concerns, and goals. Hopes, concerns, and goals are helpful and necessary for identifying what is important to a client. Rigid expectations are counterproductive because they reduce the ability to think creatively, brainstorm possible solutions, and work collaboratively to find the best solutions. Expectations often cause people to “anchor” on a particular strategy or outcome and develop tunnel vision. That causes people to miss important, beneficial, and helpful alternatives.
So, if you are seeking the most efficient, productive, and beneficial divorce negotiation process, then challenge yourself to avoid overly rigid or unrealistic expectations in the beginning. It will save you time, money, and stress in finding your family’s new path.
What does it mean to be tough? In divorce, most people (including many lawyers) believe that it means “sticking to your guns”, never compromising, issuing the bigger threats, puffing more, “big talk”, using intimidation. In the name of toughness, people are frequently encouraged to be uncaring, to deny any empathy for their spouse, and to turn off all humane or positive feelings about their marriage and their spouse.
That’s one way to do it.
Analytics has confirmed what family law attorneys have known anecdotally for a long time: There are not many clear cut winners in divorce cases in court.
Analytics has taken root in almost every industry in the world. Now it’s even made it’s way to the notoriously mushy world of family law.
As described in this article in the Miami Herald, an analytics firm recently dug into data from litigated (i.e. outcome decided by a judge) family law cases in Miami. The results paint a pretty ugly picture for anyone considering asking a court to determine their divorce and related legal outcomes.
According to the researchers, the results of the analysis revealed three important dynamics:
1. Favoritism exists: Judges appear to have favorite lawyers and those favorites fare better with those judges.
2. Big firms offer a 7% outcome benefit, but for a significantly higher cost.
3. More expensive attorneys do not win more than less expensive attorneys.
There are some caveats to be mentioned here in my mind: First, it could be that good lawyers choose their battles more effectively, settle their weaker cases or prepare more effectively; and that could be why they have higher win rates with particular judges. Favoritism is one possible explanation, but it may not be the correct one. The numbers are curious nonetheless.
Another caveat is given by the authors, but it is even more alarming than the results! The researchers admit that “determining win rates is highly problematic.” Why? Because, “there really aren’t many clear ‘winners’ in domestic proceedings.”
The researchers go so far as to claim that “Family law is the Wild West of the Legal profession.” (Que the Gunsmoke theme music)
Given all of this, it seems that a savvy consumer would steer clear of court when getting divorced. Choosing a process that allows them to determine their own outcome and allows both parties to define their own “win” seems to me to be a far better choice than “the Wild West.”
The good news is that in North Carolina, there are great alternatives to the Wild West. Collaborative Law allows a divorcing couple to keep their divorce out of high noon duels in the courtroom. It allows a couple to sit down and negotiate a resolution face to face with the help of their attorneys, and other professionals. There are no bullets to dodge, no posses to round up (and pay), and no hired guns to fear.
The objective evidence against getting a positive divorce outcome in court continues to mount. It’s a good thing alternatives exist.