Making a Better Offer

There are numerous ways your attorney can make a better offer without compromising your bargaining position should the matter later to to a settlement conference before a judge. Your attorney may suggest to your spouse’s attorney that there may be some flexibility in your settlement offer if your spouse’s offer is also flexible. Or better yet, an agreement (with specific penalties for violation) can be written, stating that neither side will mention to the judge any figures it offered in trying to close the gap between $1,000 to $1,500. But even if such an agreement is not possible, it is erroneous to expect the judge to simply choose a midpoint figure.

    Clearly the primary reason cases do not settle until the later stages of litigation is that the attorneys simply are too busy to pursue settlement. Even if you avoid a divorce-mill attorney and choose counsel who gives personal attention to your case at every litigation stage, you are not the attorney’s only client.

    A busy attorney will book extended hearings and settlement conferences at the rate of two or three a week far into the future. The nature of law practice is that each major event requires almost frantic preparation – often in the evenings and on weekends. Each hearing or conference will require the attorney’s presence at the courthouse from half a day to a full day. When one case is resolved, another conference or hearing is bearing down on the busy practitioner.

    Most attorneys have a system for the preparation of their cases, often with the help of an associate or paralegal, that will ready each case for hearing or conferences on schedule. Thus, it is unlikely your attorney will find time in the midst of preparing many cases to meet with your spouse’s lawyer and seriously discuss settlement. As your case rides along the conveyor belt of preparation for the trial (that  won’t occur), through depositions, interrogatories, expert interviews, and motions, the meter is on for both you and your spouse; and your marital estate is dwindling.

    Many attorneys see the scheduling of early and serious settlement conferences as an interference with the normal routine of preparing the case for litigation. Even if settlement efforts are built into the scheduling at your insistence, they are vulnerable to cancellation or postponement. When a crisis arises in one of your attorney’s or your spouse’s attorney’s many other cases, the settlement conference is the easiest thing to scratch to free the attorney’s time for handling the current problem. No judge is offended if a private settlement conference is canceled. The opposing counsel, having other crises to deal with, is glad to cancel the meeting and join in the illusion that it will be reset soon.

    In reality, unless you have retained a flexible attorney with sufficient time and inclination to pursue settlement at regular intervals, your case will not settle early. Indeed, the first serious efforts to resolve differences will occur at the formal settlement conference set approximately a week before the case is scheduled for trial. And it will seem hard to fault an attorney who is carefully and competently marshaling facts and witnesses in preparing your case for trial. Read more articles like these at Fleeting…