The critical difference between me and less experienced attorneys is that I have learned the litigation process and how to litigate a case. This is critical to getting a good result if you end up in profligate paradigm, which unfortunately many cases can end up there. It is my expertise that allows me to resolve cases because I know the advantages of a resolution prior to trial. I can evaluate whether or not my chances of success at trial warrant the cost and the risk of trial.
I conferred with my associate today. He was sure we should do a trial in one of our cases. I said, “okay, have you thought about this, have you thought about that?” I told him that this was not a trial I would like to take, because it was no better than a coin toss. You should not make that client spend that much money on a coin toss.
I ask myself what are the dollars at stake and if it is worth it. You may be better off splitting the difference on that issue, because it is cheaper. My ability to evaluate the chances of success at trial are important to reducing the client's cost, getting a good result, and making the divorce process a better experience. Even though I have a reputation for being a litigator, I am really good at being reasonable and trying to resolve cases because I know my client is going to benefit from a resolution.
Even though there are dedicated family law judges, there are new assignments every year. We are getting the judges from criminal law who are going to start their little first stent in family court. You have to re-educate everybody at the start of a new case. Why do you want to be in that situation? Why do you want that judge who has never done what you need them to do, doing it for the first time?
Recently, a case of mine was assigned a new judge who had just been appointed to the bench. She was coming to family law from a criminal prosecutor background. It was a low-income case and the issue before her was something that law students learn in family law 101, but she did not even know the law.
The judge asked me to brief the simple issue. I said, “Judge, you want a brief on the issue of whether or not support could be retroactive prior to filing of a motion to reduce it? Here is the statute. It is one sentence. It says you cannot have a retroactive modification prior to filing a motion.”
The opposing attorney was bringing up these other issues. I responded, “Yes, that's true Judge, but you could just defer to the statute here.” The judge told me I needed to brief the issue. That tripled the cost of that tiny, little motion that any experienced family law judge would have, of course, denied his request to retroactively modify support to a time he had not even requested it.
When I went in with the brief, the Judge said, “Oh, I agree with you. Now, I want to conduct my own integration of the clients to see if they follow it.” We had not prepared our client for that because we were not going to do a hearing on it. The Judge goes off in her prosecutorial mode to cross-examine both clients which we had not prepared because that does not happen. We won the case, but it cost the client so much money. I understand the cost and risks of going to trial.