In Parts 1 and 2 of the posts in this series I discussed the “mediator’s dilemma” and the “attorney’s dilemma” inherent in the paradox of the family court system; and it was my intent (1) to try and raise several very real-world problems which we encounter almost daily in the difficult practice of our profession, and (2) to force us to think or re-think how we prepare for, approach, and participate in, the mediation or settlement process which is so critical in providing the clients/parties/litigants with some measure of control over their lives.
With that stated, and in repeating a point I made in Part 2 of this most recent post, it is easier (but not necessarily more lucrative, and with a path certainly more fraught with risks than rewards) for a family law attorney to go to trial on every case than it is for that attorney to make the necessary efforts to negotiate a resolution (settlement) of that same case.
Think of it this way: by your going to trial in every one of your family court cases you’re completely eliminating ever having to worry about having those difficult conversations with your clients regarding the “best case – worst case” scenarios which could result from that trial. And you’re also going to be able to place the entire blame on your trial judge for any poor or unexpected outcomes … but you’ll be able to take the complete credit for any “victory” (in whatever form a “victory” may seem to your client and you).
The very best family law attorneys I’ve encountered over the years were skilled negotiators, who possessed great common sense, who had a keen sense as to when and how to settle a case, and were over-achieving trial attorneys inside the courtroom. Conversely, there were also (too) many family law attorneys I encountered who lacked the ability (or who had the ability but simply chose not to put forth the effort) in knowing how to work at crafting an effective agreement for his or her clients, and, as a direct consequence, forced virtually every one of their cases to trial [I also recall that a number of years ago an attorney told me during a mediation that it “was an act of malpractice to settle a case”]. Ultimately, the entire family court bench of this State (both the more seasoned judges and the newer ones) very quickly knew the names and reputations of all these attorneys.
Your client’s dilemma – nightmare, actually – is having to cede complete control over the major decisions which will affect that client’s life and future (and the lives of that client’s family) and then having to place those decisions into the hands of complete strangers. Would you do that? Would you let your clients divide up your properties and tell you how and under what circumstances you could participate in the lives of your children?
And if you had to go through the unfortunate and unrelenting pain of a divorce and/or custody litigation, which “road” would you choose: the “road” which gave you an opportunity to participate in the decision-making process, all the while retaining a large measure of control over these decisions? … Or the “road” leading directly into a family court’s courtroom, where you would await your ultimate fate at the hands of another “stranger”?
In this last post in this series I purposely didn’t cite or send you hyperlinks to family law statutes, appellate court opinions, court rules or forms. Rather, with all three posts in this series, taken together, I was more interested in presenting your clients and you with a common sense approach, both in confronting and resolving these “dilemmas” we all face – clients, attorneys, mediators – in the practice of family law in South Carolina in the 21st century.