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A Bad Settlement is Better than a Good Trial

Posted by attorney Andrew Zashin

When asked at the outset of a case, most clients say that they want to resolve their matter through a fair settlement. Many mean it. Others only think they want to settle, when what they really want is a fight, or to inflict pain on their spouse. Many clients recognize how terrible it sounds to come out and say they want to hurt their spouse. So instead they insist that all they want is what’s "fair"— but upon further prompting they will admit that what they think is fair in their particular case is for their spouse to be left penniless and alone! Some people will come right out and say that they want revenge, and hope to use their lawyer as a tool to exact it upon their spouse. Other clients insist on getting "justice" and will fight on the basis of principal. They lose sight of the big picture to squabble over each and every issue, no matter how important the issue actually is to them.

It is important to take an honest assessment of your motives and expectations at the beginning of a divorce. People who are motivated by the need for revenge will be unhappy with the outcome of a case, regardless of the terms. Fighting for principal is expensive, both financially and emotionally. People who fight for the sake of principal may win a battle here or there, but risk losing the war. Ironically, the money and heartache expended throughout a case fought on principal often exceeds the value of whatever it is the person was fighting for in the first place. When every issue is considered a “must-win", settlement is rarely feasible; and because no one wins on every issue in a divorce case, whatever the outcome the person is bound to be disappointed.

Truly good lawyers counsel their clients to settle their cases whenever possible. Doing so removes the variability of a court system that cannot devote the time and resources to each case so that each family involved receives a customized result. Although there are rules that a court must follow when crafting a case decision, judges have tremendous discretion as to how they can exercise their authority. What your judge thinks is fair may be worlds apart from what you think is fair. No lawyer can change that reality. When considering an offer to settle or whether to compromise on a given issue, ask yourself: If we do not agree, who will make the decision for us? While judges and decision makers usually want to do the “right" thing, time pressures or a lack of resources may make getting to the correct result impossible.

Of course, sometimes a client has no choice but to litigate, because for one reason or another obtaining a reasonable settlement is just impossible. Perhaps one side has totally unrealistic expectations, or the other lawyer simply will not work in good faith to resolve the case. If this is the reality of your case, then find a good lawyer and work diligently to prepare for trial. But the vast majority of cases can and should be settled. Enter the divorce process prepared to be both realistic and flexible. Know both your settlement “wish list" as well as the bare bones minimum you must receive as part of any final agreement. Understand from the outset you will not get everything on your wish list, and be flexible: if an offer presented though different from your initial demand achieves the same end result, consider it.

There is an axiom amongst divorce lawyers: a bad settlement is better than a good trial. Put another way, when you go to trial, no matter how prepared you are and no matter how good a case you put on, you never know what the judge is going to do. It is as simple as that. And it is you, the client, who has to live with the result.

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