Getting to the Negotiation Table

Two lawyers stood before a judge and argued whether financial affidavits should be exchanged by the 15th or the 30th of October.   They stood in a crowded courtroom and with straight faces told the judge that they were too far apart to decide which date the documents should be complete.  Neither of them made a cogent argument as to why one date mattered more than the other.  Luckily, the judge was able to have a sense of perspective and split the difference between them.   This case was billed as one hour.  15 minutes to drive to court; 30 minutes to wait their turn; 15 minutes to say their piece, get a ruling, and walk out of the courthouse; and fifteen minutes to drive back to the office.  One hour of billing for each lawyer.

The next case was called.  One lawyer stood up and asked for sanctions against another attorney for refusing to return phone calls.  This was a 45 minute bill:  time to and from court, plus the 15 minutes in front of the judge.

On the next case, 5 lawyers stood up — one for the wife, two for the husband, an attorney for the children, and a guardian-ad-litem — all unable to reach consensus as to when they should have a settlement conference.  If they can’t even find their own way to the table, I shudder to think how much they will argue once the judge finally orders them to sit down together.  This case was probably 2 hours of billing per lawyer:  30 minutes of travel; 30 minutes waiting for everyone to get there; half hour of bickering before they saw the judge; and the half hour it took for each to get a turn to speak on the record.

Every time two attorneys stand up to argue a motion they are both billing the same family for their time.   So, if one attorney costs $350/per hour; two are $700 per hour. And if it takes one lawyer one hour to drive to court, ask the judge for a ruling and leave.  It takes two lawyers all of that time, plus the time arguing their points to the judge.  One hour can quickly become two.  So, what could have cost a family $350 now costs $1400.

And that doesn’t even include the cases in which there are attorneys for the minor children, guardians ad litem, and expert witnesses.

The clients who are paying these attorneys likely each think that it is the others who are being unreasonable, certainly not their own lawyers.  Maybe the clients would prefer to pay their lawyers to stretch out the proceedings, rather than let their spouses have a single victory.  I can imagine a conversation between a lawyer and her client going something like this:

Attorney:  They want to see your financial affidavit by October 15th. Can you do it, or would you prefer I fight it?

Client:  I could do it by the 15th, but then they will win their motion.  I won’t turn it over until the 30th. Go to court!

Attorney:  You understand if both lawyers go to court for the 2 hours it will take us to get heard, at $250 per hour per lawyer, that’s $1000 for an argument you might not win.

Client:  I know, I know. It’s crazy, but I would rather spend our family’s assets on lawyers than hand in my discovery two weeks early.

It is likely more emotional than rational.  Maybe the client is tired of feeling bullied by the other spouse.  Maybe the client does not feel ready to be divorced and hopes that making each step take longer will give them more of a chance at reconciliation.

Sometimes it is the client who says,  “This is too crazy.  How do we get to the negotiating table?” Sometimes it is a lawyer who refuses to be petty and would rather just spend the billing time on substance instead of form.  Sometimes, this happens before the family runs out of money.  Too often, it does not.

What We Love: Sometimes it is the client, who says, “get me to the negotiating table.”

Published by Sharon Oberst DeFala

Sharon Oberst DeFala has practiced low-impact safe divorce since 1992.

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