If you want peace, prepare for war

Posted Sunday, March 19th, 2017 by Gregory Forman
Filed under Attorney-Client Relations, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Clients often ask me, if the goal is to settle the case, why I ask them to gather substantial information or why I issue discovery from the very beginning. The Romans would have understood. They had an adage, “Si vis pacem, para bellum.” Translated: “If you want peace, prepare for war.”

In family law one might think of a court-approved settlement agreement as a “peace treaty,” and a trial as “war.” One is likely to get better terms in peace if one is prepared for war. Engaging in discovery, and having the client gather information, is preparing for war with the goal of peace.

Unless a client retains an attorney with a fully formed settlement (in which case the attorney’s task is largely to take the client’s ideas and shape them into an enforceable agreement), an attorney should start with an idea of what information might be useful in negotiating a favorable resolution and begin obtaining that material. This information is nearly identical to that which might be desired at trial.

In a divorce case I will typically start by having a client draft financial declarations. However I also ask the client to obtain financial documentation that substantiates the figures on their financial declaration. For page one (listing income) I will want recent pay stubs, W-2’s, 1099’s, and like information. For pages three and four (listing debts and assets) I will want financial documents supporting the listed values, such as mortgage statements or credit card and bank statements. For alimony cases I might ask the client to obtain documents justifying the expenses listed on page two if those expenses seem atypically high or low given the family’s income and socioeconomic status.

There are other non-financial documents I might ask the client to obtain in certain cases. For a fault divorce, I want records documenting the other party’s fault. For contested custody and visitation cases, I want documentation supporting the client’s position. For example, if a client claims to have been the parent taking the child to pediatric appointments, I want the records demonstrating that. All of this document gathering is intended to develop evidence I will use at trial if the case doesn’t settle.

Further, issuing discovery to the other side early in the case enables me to learn what evidence the other side will bring to trial and helps me obtain useful concessions or impeachment evidence that I can use to bolster my client’s position. A more detailed explanation on the types of and goal for discovery can be located here.

However, this information is useful well before trial. Obtaining it early in the case strengthens my ability to negotiate a favorable settlement. Factual disputes frequently arise in the negotiation process. Having this information available enables me to determine whether the factual dispute is a genuine issue of fact or simply the other side posturing without proof to sustain that position at trial. If there is a dispute over a party’s income and there is evidence that justifies each side’s claim, my negotiation posture needs to take that potential factual dispute into account. However if all or almost all of the evidence supports my client’s position on that issue, I can discount the other side’s position as mere posturing, and take a more aggressive approach in negotiations.

For example, in a child support case, if I believe my client’s income is $3,000 per month but the other side is claiming it is $5,000 per month, I will want to set child support using the $3,000 figure, and the other side will want to set child support using the $5,000 figure. If there is genuine evidence supporting both figures, we might compromise and set child support on a $4,000 figure (and might adjust that $4,000 upward or downward depending on which side has “stronger” evidence). However if all the evidence supports a $3,000 figure, I can simply tell the other side that my client won’t move from the $3,000 figure until the other side provides credible evidence to support a higher number.

If one doesn’t prepare for trial, and such a factual dispute arises, one is almost forced to compromise on the income figure to settle the case. Yet, if there really isn’t evidence to support the other side’s claim, my client has compromised unnecessarily–and to his or her detriment. Too often clients and attorneys compromise on factual issues, not because there is a genuine factual dispute, but merely because they have failed to develop evidence on the issue.

While one doesn’t necessarily need all the knowledge or information to negotiate that one might want for trial, it is a mistake to negotiate significant issues without undertaking some investigation on disputed factual issues. Preparing for trial from the very beginning of the case is the best way to settle the case on favorable terms.

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