LET’S MAKE A DEAL
Since 1963 there has been a t.v. show called Let’s Make a Deal. I think that many family law clients and people going through a separation or a divorce would be well counseled to think about that old game show.
I have been asked frequently over the years, what my win/lose “score” is in Court. How often do I win, how often do I lose? But few people ask about how well I negotiate or how often I settle my cases or how often are people saved the expense of going to Court at all? If they are already in court, they should ask how can I get that to go to either mediation or to a negotiated settlement negotiated directly between the lawyers?
The art or the ability to negotiate a settlement is arguably a more necessary skill than any other that a family law lawyer has. Knowing how to talk to the other side, when to hang tough as the expression goes, when to give in a bit, when to try to mend fences and when not to, are all important skills.
With the cost of going to Court today, particularly through trial which can be a ruinous exercise financially, even if you win, because you may not be able to collect back from the other side all the costs you were awarded by the Court; knowing how to negotiate and negotiate well, is a very big plus.
It often helps if the lawyers know each other professionally and know how to talk “off the record” but properly and respectfully to be able to help their client’s causes.
This may sound like an anathema to some clients, but it really is important and if the two lawyers know each other and trust each other, not in the sense that they don’t deal in the best interests of their respective clients, but that they can talk to the other lawyer and obtain cooperation, then the client is well served. Again, I do not mean giving in, I mean negotiating which is a true skill.
It is important that your lawyer is very open and frank with you. Sometimes a client just wants it over with and they seem ready to capitulate on many major issues because they are so tired of the arguing that they engaged in, both before separation and after separation, with their spouse. They need to be told by their lawyer that this is not the answer, but at the same time, they need to be helped to argue for and obtain a reasonable settlement that will work for them long term.
Again, the lawyer must be frank, honest, and not sugarcoat the truth. The easiest thing in the world is to tell a client what they want to hear. The hardest thing in the world is to make them hear what they don’t want to hear which is necessary for them to hear it.
Contrary to what some people may believe, it is much harder to disagree with your client and to protect them then it is to just say “yes” to what they want at that moment which may be diametrically opposite to what is in their own best interests.
Negotiation can be compared to the game of poker. Now I have never played poker, but I have negotiated much the same way in many, many cases. You have to know when to hold your cards close and when to sometimes give away a card and when to seem relaxed, even if the situation is not one that creates a sense of relaxation, but will make the other side believe that your client is confident in their position and is prepared to stick to it.
So when you look to hire a lawyer in a family law matter, look for one who can make a deal. There are certain cases where you cannot make a deal; where there has been domestic violence or deep-rooted emotional or psychological abuse of a nature that makes negotiating fruitless, where the other side will not provide disclosure of assets and income or where they are so unreasonable that you cannot work with them. This can be either by the behavior of the other client (spouse) or their lawyer. It is still important to have a lawyer who can make a deal, even in that situation because even in court, there are offers that need to be prepared and exchanged so that if you are forced into court and there are motions or a trial, the lawyer knows how to position their client so that they will win in court.