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Winning too big

Very early in my career I handled my first contested custody case which resulted in my client, a young medical student, obtaining custody of his children.  A few years later, representing that same client, I tried my first custody modification case, defending a claim brought by his now ex-wife.  Since this was my first custody modification trial, and since the ex-wife was represented by two much more experienced attorneys, I asked local attorney, Susan Dunn, to assist me.

I adore Ms. Dunn.  She is a devoted attorney, extremely liberal Christian minister, and now South Carolina counsel for the ACLU.  Despite her easy-going demeanor she is a fierce advocate for her clients.  Her legal acumen is superior to almost anyone I know but she contains this ability within the nurturing persona of a mother hen.  One of the best parts of associating Ms. Dunn on your cases is that she will gently impart bits of wisdom in the course of the relationship.

During our work on this case, Susan observed that one reason I was now defending results I had achieved mere years ago was that my client had “won too big.”  Her point, so subtle it took years for me to fully understand it, was that my client’s initial success left his ex-wife feeling as though she needed to vindicate herself as a parent.  By “winning too big” we created a situation in which a modification case was inevitable.  The longer I practice, the more I realize the importance of taking into account the opposing party’s need for dignity in fashioning a stable resolution, especially on issues that can be subsequently modified.  See What is and is not Modifiable in a Family Court Final Order?

Many of my most contentious and expensive family court cases are those in which one party won too big at the temporary hearing.  If the other party has resources, he or she will use those resources to try to undo what the temporary order has done.  Everyone–litigants, counsel and judges–find these cases frustrating because the parties keep returning to court. A divorce or custody case that might have been resolved for $5,000 or $10,000 in fees ends up with each party incurring $50,000 or more in fees as they fight to sustain or overturn the temporary order’s mandates.  Family court judges act perplexed that these folks fight so fiercely, thinking there is something unbalanced with one or both of them.  Yet I find such behavior completely explicable, as, in my experience, the aggrieved parties almost always achieves a much better resolution than the temporary order so long as they demonstrate a continuing willingness to litigate.[1]

Since, as noted above, I believe that “winning too big” is an invitation to endless, expensive litigation, I try to seek resolutions that leave my client achieving his or her important goals while leaving the other party a measure of dignity.  Yesterday I devoted most of my time and thought to two cases.  In the first case I am new counsel for a husband who feels aggrieved by the court’s temporary order, which sets his alimony obligation at a higher level than any approved by the South Carolina appellate courts.  Numerous motions have been filed and depositions scheduled  in my client’s effort to modify his alimony. Opposing counsels, who happen to be good friends, remain perplexed by the efforts my client is undertaking to overcome the temporary order.  Their client is finding the endless litigation exhausting and desires peace, but when a party wins too big peace remains elusive.  Not until the litigation wears one or both of these parties out will peace be achieved.

In contrast, my other case yesterday presented me with perfect facts to win too big.  With the temporary hearing approaching next week we spent yesterday afternoon at a settlement conference.  My client had a couple clear and specific goals and my task was to help her achieve these goals without creating the blowback that winning too big would entail.  The negotiations resulted in a consent order that meets my clients goals but allows her spouse some dignity and some clear ability to comply with the terms of the agreement.  Had we allowed the judge to decide the matter or pushed more aggressively in negotiation on financial issues, my client might have received a bit more money but she might not have achieved one of her most important goals, and she would have created a situation in which her husband might devote substantial resources to overcoming the resulting order.

This morning the second client sent me an email noting her satisfaction with the temporary resolution and her optimism for the future.  Meanwhile, I imagine the spouse of my first client continues to live in a state of anxiety that is the natural consequence of the parties remaining unable, perhaps unwilling, to reach a mutually-satisfactory resolution.

Clients are sometimes left with the choice of “victory” or “peace.” If they can achieve their important goals short of achieving victory, my more astute clients chose peace.

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[1]In theory a social scientist could test this hypothesis: studying whether there is greater variability between the temporary order and the final order in cases in which there have been a substantial number of intervening motions as compared to cases in which there are few or no intervening motions.  If there is greater variability, this would be some evidence that the initial temporary order’s one-sided resolution contributed to the high level of conflict.  If there’s little or no variability the blame can properly be laid at intransigent litigants.

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