Should my Family Law Attorney be a Negotiator or a Litigator?
Folks seeking to hire a family law attorney often begin their search by determining whether they are seeking a “negotiator”–someone who can help settle their case–or a “litigator”–someone who can bring their case to trial. In seeking an attorney, they then limit their search to attorneys who have reputations for being one or the other. This is a mistaken approach.
In searching for a family law attorney everyone needs an attorney who can be both a litigator and a negotiator. These roles aren’t mutually exclusive–in fact, they are complementary. An attorney with strong negotiating skills can employ these abilities to assist the client in reaching a better resolution when one’s litigation position is strong. An attorney with strong litigation skills can employ these abilities to develop legal advantages that strengthen the client’s negotiating position.
Clients often think their case is going to be “uncontested” and that they need a negotiator without having to worry about their attorney’s trial skills. However, unless a client with an “uncontested” case is in possession of a properly executed final agreement, a potential for contested litigation exists. Even when there is an executed final agreement, one party can sometimes repudiate that agreement and then the need for contested litigation arises. Thus litigation skills are useful in seemingly “uncontested” matters.
At the other extreme, some clients believe that only a judge’s decision will resolve their dispute, and the ability to try their case is the only skill their attorney needs. However, the litigation process has a strong tendency towards resolving disputes short of a judge’s verdict. First, the pre-trial process exposes the weaknesses in one or both parties’ position. This leads the parties to attempt negotiation of disputes they had believed were irresolvable. Often a client lacks the budget to properly try a case and negotiation skills are necessary to press for a favorable settlement.
Even cases that don’t settle during the pre-trial process settle in the courthouse at the beginning of trial, as the judge provides some preliminary insights and encourages the parties to try a bit more negotiating. Finally, many cases settle in the midst of trial as the trial process exposes grave weaknesses in one or both parties’ legal or factual positions. Over half of my divorce or custody trials settle mid-trial without a judge’s verdict for this very reason. Thus, negotiation skills are useful in extremely contested matters.
The best domestic attorneys have both strong litigation skills and strong negotiation skills. In interviewing attorneys, mediation training and experience as a mediator is often a good indication of an attorney who takes negotiating seriously. Asking an attorney how he or she might try to resolve a highly contested dispute short of a judge’s verdict provides insight into whether that attorney thinks seriously about using the litigation process to achieve settlement, how that attorney mixes the roles of litigator and negotiator, and whether that attorney can mix these roles in a complementary fashion.
A good litigator should enjoy the drama and intellectual challenge of trial but should also do his or her own utmost to avoid the resolution of a judge’s verdict. As I often remind clients who want to let a judge decide, I enjoy trial but I go back to my own home and live my own life when the trial is over, while my client lives with whatever a judge decides. An attorney who fears trial is unlikely to be fully effective, yet any attorney who encourages a client to “let the judge decide” does not really understand trial and is too eager to litigate.
One should ask an attorney one is considering hiring about his or her recent trial experiences and specifically about settlement negotiations during trial. Learning about whether they were attempted, what prompted the attempt, and why they did or didn’t succeed, will provide insight into an attorney’s litigation and negotiation thought process.
Hiring an attorney who is resistant to negotiation will frequently result in high fees (litigation is expensive), delay (litigation takes time) and unnecessary stress (litigation is unpleasant–at least for the litigant). Further trying a case to verdict doesn’t necessary result in a better, or even good, outcome. Yet, hiring an attorney who is afraid of trial will frequently result in a client not being able to meet reasonable goals, especially when the other party is prepared to litigate to achieve goals.
One should seek an attorney who is strong in both negotiation and litigation skills, isn’t afraid to use these skills, and knows how to properly balance these roles.