The time to start thinking about trial is when you start the case

Posted Thursday, February 8th, 2018 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Prospective domestic relations clients often begin their search process by determining whether they want a “negotiator” or a “litigator.” If they hope to resolve the case amicably, they search for a negotiator; if they want “victory”–whatever they perceive as victory–they seek a litigator.

Such potential clients frequently ask me a variation of the question: am I a negotiator or a litigator? I’ve developed a new response: “I am a trial attorney who settles over 95% of my contested cases.”

The reason I like this response is that it correctly describes how any good attorney should approach a contested case. The day you hire me for a contested case I am thinking about the following three things:

1. What are your goals?
2. What evidence could we marshal to convince the court that you are entitled to what you seek?
3. What evidence will the other side marshal to frustrate your goals and how do we counter that evidence?

Thus the initial part of any case is developing the information to support items two and three above. I will have my client collect, or assist my client in collecting, this information. The most obvious way I do this is to have the client collect current and date-of-filing valuations for every asset and debt on his or her financial declaration. I will issue discovery intended to determine what is factually disputed, limit the opposing party’s ability to surprise me with factual disputes, and develop evidence that exposes the strengths and weaknesses in both parties’ cases. Then, when it comes time to negotiate or mediate, I will have the information needed to understand what facts are undisputed, what each party’s position is on contested factual and legal issues, and what might be reasonable outcomes at trial on these disputed issues.

Without this information, negotiations and mediations can reveal one’s lack of preparation to intelligently resolve the case or to effectively advocate the client’s position. If mediation takes place well into the 365 day period, it may be difficult–perhaps impossible–to complete the work necessary to effectively advocate the client’s position at trial.

Ironically, it’s often the negotiators, who come to mediation with insufficient knowledge to understand what might be a just result, who end up having to unnecessarily try their cases. Even worse, they often settle their cases cheap because they don’t understand their case and are afraid to risk trial.

The way to achieve an effective settlement is to begin each case by preparing for trial.

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