I often hear that potential clients want a "pitbull" or a "fighter" for their lawyer. This sentiment is often fueled by fear that if they are not meaner or stronger than their spouse or partner, that they will lose something important in the divorce or dissolution.
In all states of the United States, only 2% - 5% of divorce or family law cases go to trial. For parties who followed the traditional litigation path, this looks like this.
- We pepper the other side with long lists of questions, called Interrogatories, in Michigan. The opposing party must sign the answers under oath.
- In addition to the questions, we also require the other side to provide documentation. I am frequently surprised to find that many of the required documents are actually available to the side who initiated the questioning.
- We require the opposing party to either admit our version of the facts or provide detailed explanations of why they disagree.
- We take the other party's deposition, which is a detailed questioning session that is recorded by a court reporter. The session can be reduced to a transcript.
- We file petitions or motions asking the judge to refer the parties to court agencies that can investigate the parents and the children and make recommendation to the judge about who should have custody of the children, how much time each parent should spend with the children and how much child and spousal support parents should pay.We file petitions or motions asking the judge to make decisions for the parties, often without first attempting to work out the source of the dispute before taking it to the judge.
- Then, late in the case, around the time of the settlement conference, the attorneys advise their clients that the judge will require them to mediate or use some mechanism to avoid going to trial, or
- Late in the case, just before the trial, one attorney learns from the judge or his/her judicial attorney, that the client will not prevail on a key issue in the case, and advises that client to settle. This is frequently referred to as settling on the court house steps, or
- Late in the case, just before the trial, upon learning that one or both clients are unlikely to succeed on their key issues, the attorneys recommend the parties arbitrate the case, rather than try the case.
In other words, for all but these few (2%-5%) of all divorce cases that are filed, parties who seriously prepare for the trial are spending time and large amounts of money preparing for a non-event. For many clients, they are unaware that they are gearing up for war that will not come. The emotional toll on the parties is huge, as they become increasingly polarized as this process progresses.
If you have a 95% - 98% chance that you will settle, wouldn't it be smarter to hire a really good negotiator at the beginning of your case? This would be an attorney who has a proven record of effectively mediating cases early in the process or one who commits to avoiding judicial decision-making by pursuing a collaborative divorce. You can find such lawyers by going to www.collaborativepractice.com or www.collaborativepractice.mi.org or www.familymediationcouncil.com.
Also, be sure to ask lawyers whom you interview how they approach their cases. If your lawyer is preparing you for the war that will likely not occur, you should seriously consider whether this is how you want to spend your family's financial and emotional resources.