Negotiating with a gun to one’s head

Posted Friday, January 23rd, 2015 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

The family court won’t approve agreements that are obtained through coercion. However, “coercion” in this legal sense is quite different, and much more limited, than what coercion means to the general public.

If one executed an agreement with a literal gun to one’s head one could repudiate that agreement before or at the hearing to make the agreement a court order, based upon the argument that the agreement was a product of coercion. “Agreements” that are compelled by forces outside of the issues being negotiated can be considered coerced. However, when one enters an agreement that one is unhappy with merely because the other options are even less satisfying, this does not make that agreement the product of coercion. Often such unhappy parties felt compelled to enter their agreement, but this feeling is simply due to having to select between the best of numerous disappointing options. While such parties may feel the agreement was coerced, the gun to their head was figurative, not literal.

Knowing who has such a figurative gun to the other’s head in any negotiation is a key to successful negotiation strategy. In any domestic relations case, if I can obtain such a figurative gun I want to do so. If I have that “gun” and the other party doesn’t, I can take a much more aggressive negotiation posture. If the other party has that “gun” and my client does not, I want to try to obtain a gun and, if I can’t, I need to counsel my client to select a few important goals and be ready to give on the remaining goals if we can achieve just a few goals.

In South Carolina divorce cases adultery is a typical figurative gun. For the supported spouse it’s a bar to alimony. For the supporting spouse it’s a factor in awarding greater alimony. It can be a minor factor in property division. It is a ground for divorce. It is a basis to get the adulterous spouse ordered from the marital home. It can be a factor in custody. When I am retained to negotiate a separation agreement, and my client believes his or her spouse is committing adultery, I counsel obtaining solid evidence of adultery before doing anything. Even if my client believes everything will be uncontested, having solid proof of adultery makes negotiating that much easier–my client is the one with the “gun.”

Recently I was prosecuting a rule to show cause. The defending party refused to consider a settlement that would hold him in contempt and require him to pay my client’s fees. However, in the midst of trial, the judge strongly hinted that he would be holding the other party in contempt on one of the two issues in the rule and that, if he was held in contempt, a prior order mandated that the judge incarcerate that party for ninety days. That judge figuratively handed me a gun. As soon as the judge did this the matter settled quickly and on extremely favorable terms–much more favorable than I could have been awarded. In return for agreeing not to put the opposing party in jail for ninety days my client could pretty much get anything she wanted–and she did.

In any negotiation, forget the cannoli; get the gun.[1]


[1]This is a Godfather reference.

One thought on Negotiating with a gun to one’s head

  1. Nicely written.

    From what I’ve been able to discern in the short amount of time I’ve been in practice, in many areas of domestic litigation, it’s more about playing the long game.

    Frankly, it’s not altogether unlike shooting pool: sure, you’d like to sink all of your stripes or solids rights off of the break, but in the absence of such sweeping opportunities more likely than not it is advisable to set yourself up to run the table down the line. In what we do, once the sun has set on the immediate opportunity to achieve goals, leverage becomes currency.

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