Litigating is intellectually stimulating for many lawyers; it is competition at its best. We love to strategize a case; prepare witnesses; present novel arguments to the court; and we love the cross examination of witnesses. It is what we were trained to do.
Parties often want to litigate because they want their day in court and want to “prove” the other side wrong. Sometimes litigating a case is the only option because the other side will not work to resolve differences; or, the other side’s assessment of the case is so “off base” that a fair settlement cannot be achieved.
While many lawyers enjoy litigation, most clients do not share a lawyer’s point of view, but have no choice except to go to court. Therefore, if you find yourself in the position of a litigated divorce or custody case, here are some tips that will enable you to assist your lawyer in managing the process:
- Pick Your Battles. There is no question that if the other side insists on litigating a particular issue, you will likely need to mount a defense. However, when you decide which issues you would like your lawyer to present at trial, choose those issues that matter; those that will make a difference in your life.
- Settle In for The Fight. Litigation is usually a long process. Clients often refuse to face this fact and ignore the hard work necessary to prepare a case for trial. The sooner you accept the battle you find yourself in and work to strategize and prepare your case with your lawyer, the more empowered and in control of the process you will feel.
- Determine Your Litigation Budget. While estimating the cost you may incur in defending a claim presented by the other side is difficult, you can certainly budget the amount of money you want and can afford to spend on the issues you choose to present. By way of example, if keeping the bedroom furniture is important to you, recognize that the cost to litigate this issue could exceed the cost of the furniture.
- Trust Your Lawyer. It is critical that you have trust in your lawyer. If you do not, then you should secure new counsel. It is just that simple.
- No One Wins. As stated at the beginning, often you find yourself in litigation because the other side refuses to settle the case in a realistic fashion. Regardless of who is advocating the litigation, the fact is – in most cases – that the emotional, psychological and financial cost of litigation rarely makes litigation worthwhile. Results are unpredictable, the cost to litigate is high, the time is lengthy and the entire process is rarely satisfying.
Litigating a family law case is nothing like the television court dramas. There is rarely a “Perry Mason Moment” and rarely is there a “slam dunk.” Therefore, whenever a client tells me they really want to litigate, I suggest they spend a day observing in a family law courtroom. The experience speaks volumes which I feel every client should know before they eagerly decide they want their day in court.