Owning one’s “choice”

I provided a consult/second opinion recently with a fact pattern that is both distressing and common.  The litigant had executed a domestic agreement that was much better than the current temporary order but much worse than the litigant had hoped to achieve through litigation.  Now the hearing date to approve the agreement was approaching and the litigant wanted out of the agreement.  She met with me to discuss her options.

Unfortunately there’s only two options in such a situation: accept the agreement and let the court approve it or challenge the agreement, fight its ratification, and gear up for trial.  The second option tends to be incredibly expensive.  The analogy I use is the scene from the movie Dumb and Dumber in which Lloyd accidentally takes a wrong turn and drives him and Harry 600 miles east when they intended to head west.  Whatever attorney takes this case for trial will not only need to move the case in the right direction, that attorney will need to turn around a case that has been going in the wrong direction (from the client’s perspective) for some duration.

Few folks who meet with me at this point in their case have the budget for what would be needed to meet their goals.  It’s even more discouraging when I remind them that I am only hearing their version of events and that if their version of events does not end up being proven at trial, they are likely to do worse than the agreement they are rejecting–and, after having paid me a significant fee, be ordered to pay the other party’s fees too.  Typically, the more discouraging I try to be the more horrific the tales of the opposing party become.  If the case involves child custody I suggest they borrow from friends and family, reminding them that if the opposing party is as reprehensible as they claim their parents surely don’t want their grandchildren being raised by this person.  Eventually the crying starts.

I don’t like representing “victims.”  I actually tell my clients and prospective clients this.  People who come to my office may have been victimized but my goal and job is to empower them.  An empowered client hears my advice, asks questions to help develop an understanding of the benefits, costs and risks of the options I suggest, and then makes a decision that he or she will live with and “own,” even if events don’t transpire as hoped.  In contrast a “victim” will claim that some external factor–typically their attorney–forced them to make an unsatisfying choice.  I meet a number of litigants who claim their attorney “forced” them to enter an agreement but have never seen an attorney actually force a client to do anything.  Further, it’s always the client’s signature on the document and the client’s testimony approving the agreement.

The analogy I use here is getting a diagnosis of having a particularly aggressive cancer.  The options might be: surgery; chemotherapy; do nothing and die soon.  A patient receiving this diagnosis will not be thrilled with any of the options: who wants cancer?  An empowered person will make a choice, understand there are unpleasant consequences stemming from that choice and that a treatment option contains no guarantee of success, and handle the unpleasant aspects of the choice the best he or she can.  A “victim” will complain that all of the choices are unpleasant.  He or she might vacillate or refuse to make the choice.  However even not making a choice is a choice: the victim who won’t chose in this scenario will die.

The most miserable folks I encounter in family court fail to “own” their choices. Absent incredibly good luck–the other party is even worse, does something even more stupid, or simply doesn’t care–such folks rarely do well in family court.  When they don’t do well they blame everyone but themselves–it’s their attorney’s fault; or the judge’s ; or the guardian’s; or the other party’s–ignoring their own bad choices that had helped lead to the result.  A client who refuses to “own” his or her choices in litigation cannot be made happy.  Smart and experienced attorneys flee when given the opportunity to represent such folks.

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