Monthly Archives: December 2014

Practicing Family Law In The 21st Century – Series Post No. 4 – Part 3: The Client’s Dilemma – “Placing Your Future Into The Hands Of Strangers”

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).

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Practicing Family Law In The 21st Century – Series Post No. 4 – Part 2: The Attorney’s Dilemma – “The Attorney’s Notion Of Fairness – Trying To Attain The Unattainable”

In Part 1 of this series post I tried to frame a “dilemma” that family court mediators frequently encounter in their efforts to reach the shared understanding with the parties and their attorneys that achieving a satisfactory (and satisfying) resolution of the litigants’ case has very little, if anything, to do with the “cosmetics of fairness” (e.g., the “look” of fairness versus the actual substance of a workable agreement).  And I had provided a “link” to an amazing Oklahoma family court case where the wife was awarded one billion dollars in cash and other assets, but was not at all “satisfied” with the decision, finding it to be inequitable (in other words, it didn’t look fair, based, apparently, on the total approximate value [$18,000,000,000] of the husband’s “worth”).

I concluded Part 1 by including an excerpt from the April, 2014 South Carolina Court of Appeals opinion in the case of Simcox-Adams v. Adams; and in transitioning into Part 2 in this series, I want us to “revisit” an interesting part of that excerpt:

“Finally, we believe equity dictates this result … ‘stating the time honored equitable maxim that all courts have the inherent power to (do) all things reasonably necessary to ensure that just results are reached to the fullest extent possible.'”  (All case citations are omitted.)

Re-read that excerpt again very carefully.  Where would the word “fair” fit into this maxim?  Could “fair” be inserted in place of the word, “just” (e.g., “…to ensure that fair results are reached to the fullest extent possible”).  But wait a minute, why would this maxim include the words “to the fullest extent possible“?  Why would we need to conditionally qualify the terms “just” or “fair” with the words “fullest extent possible”?  After all, fair means fair, doesn’t it?  And as a family law attorney, certainly we know what “fair” means in the resolution of family court litigation … and your clients certainly know what “fair” is supposed to look like.

And so we have now arrived at every family law attorney’s dilemma – the “crossroads” where the attorney’s notion of fairness must square up with the client’s … where the attorney is compelled by circumstances only marginally within his or her control to attain the unattainable – perfect fairness.

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