Controlling the tempo of domestic litigation

One thing that is never taught in trial advocacy law school classes and rarely noted in continuing legal education seminars is the role of tempo in domestic litigation.  I observe few attorneys consciously thinking about the role tempo plays in domestic litigation.  Yet understanding and shaping tempo is a vital part of achieving success in family court.

There are times when a slow tempo greatly helps a client.  The client may be satisfied with the status quo, especially if there is a highly favorable temporary order.  The client may expect that, with the passage of time, he or she will have additional resources–financial or emotional–to pursue the litigation’s goals (or the other side will have diminished resources).  The client may believe that the passage of time will improve the factual background of the dispute.  For example, it may require time to prove a parent has achieved a measure of sobriety or stability or it may require time for the opposing party’s flaws to become clearer.  In such circumstances a passive approach often works best.  The attorney representing such a client should gather enough information and engage in sufficient discovery to be prepared to try the case should the other side attempt to speed up the tempo but take no further action.

However, even when the status quo suits many the client’s goals, or when a slow tempo would be helpful, the client may still want to reach a final resolution sooner rather than later.  Any contested domestic litigation is stressful and part of what we do as family law attorneys is assist our clients in developing the circumstances in which they can move forward with their lives.  Interminable domestic litigation is counterproductive to that goal.  Also, in marital dissolution litigation, clients often want to get their divorce–not surprising–and since South Carolina will rarely bifurcate the divorce from other issues, the other issues need resolution to obtain the divorce.  Thus there can be circumstances in which the status quo is acceptable but a faster tempo is desirable.

Then there are circumstances in which a faster tempo is an unalloyed good.  Perhaps the opposing party or attorney is simply not preparing for trial and giving them unlimited time to prepare cannot help.  Or the client expects factual circumstances to change in a manner unfavorable to his or her position but favorable to the opposing party.  Maybe the client simply hates the status quo or the temporary order and expects the final resolution to be more favorable.  In these circumstances an attorney’s control of the tempo can greatly assist the client’s achievement of his or her goals.

Since all litigation results in either a dismissal, a settlement, or a judicial resolution, the way to control the tempo is to take steps that narrow the temporal distance between the present and a potential judicial resolution.  Trial in the indefinite future provides little settlement leverage against a party happy with the status quo.  Trial-next-week has a way of encouraging that party to consider settlement.  Being in the midst of trial–especially if trial is going well–greatly increases the likelihood that the opposing party will consider a proposal favorable to one’s client (the majority of my domestic trials in my second decade of practice have settled mid-trial).

How does one narrow this temporal distance?  By aggressively pursuing discovery, making a pre-trial request, and by seeking and obtaining multiple standby-trial dates.  Seeking mediation can be part of this strategy but, since the opposing party is not compelled to settle in mediation, mediation does not effectively accelerate the tempo of litigation unless it is coupled with these other acts.

Emily G. Johnston once impressed me tremendously by seeking a pre-trial immediately after the temporary hearing.  Our custody case–which typically drags on for a year or two–was set for trial within 7 ½ months of the temporary hearing and her client achieved a very good resolution (more time under the final order than he had under the temporary order) by her pursuit of such an aggressive tempo.  Yet in 18 years of domestic practice I recall no other time when an opposing counsel consciously used tempo to help achieve client goals.

By aggressively accelerating the litigation tempo one signals to the opposing party and attorney one’s willingness to achieve goals through judicial decision making.  Some domestic attorneys dislike–even fear–trial.  Few clients want to go through the trouble, expense and stress of trial if it can be avoided.  Anything that increases the likelihood of trial and decreases the temporal distance between the present and trial is likely to encourage resolution by agreement.

Domestic attorneys would do well to consider how tempo affects their clients’ cases and consciously use tempo in furtherance of their clients’ goals.

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