If you do not settle at the court ordered settlement conference, you “advance” to the pretrial stage. During the pre-trial process, discuss the pros and cons of all possible outcomes with your lawyer. Your lawyer should be able to give you a worst possible and best possible scenario, and a range of expected outcomes in-between the two extremes. Your lawyer should also be able to tell you where any particular offer on the table falls in this continuum. Understand that your lawyer doesn’t know for certain what would happen at a trial, but any experienced lawyer can give you a decent guess. Once in a while a case will have a factual scenario that is so unusual that it is impossible to predict a range of outcomes.
Sometimes you will have the unhappy choice of the settlement offer being unacceptably low for you to take, but it simply is not worth the economic or emotional toll to go to trial. This will take some tough thinking on your part to determine whether or not you wish to proceed with a trial. While the settlement may not be fair, it may be better than what even a more favorable outcome would be for you after a trial. You need to consider all of the costs: emotional, financial, and legal, before you decide to turn down a settlement offer.
For example, suppose your lawyer thinks that you should receive at least $20,000 from the settlement on the house. The offer on the table is $15,000, but your lawyer estimates that it will cost you $7,000 to try the case, and that if you try the case you should end up with between $17,000 and $25,000. In this scenario it may not make sense to make the additional $7,000 investment, because you would have to come out with more than $22,000 in order to “break even” with the offer that’s on the table. It therefore makes sense to take an offer that seems unfair, but which is ultimately more cost effective.
Sometimes when a scenario like this happens the lawyer is seen as representing the compromise rather than the client. This is always a tough situation for a client and for an attorney. It’s easy for the attorney to see the dollars and cents aspect of the case, but the client may be feeling that the lawyer should be advocating for what’s best for the client. Yet the lawyer is advocating that the client take a settlement that both the lawyer and the client agree is unfair. If you truly don’t think that your lawyer is looking out for your best interests, you need to fire your lawyer and get a different lawyer. If your lawyer feels that you are in a situation that has become a choice between two unfavorable options, your lawyer should be straightforward with you about that.
For a host of free divorce information, see http://www.peace-talks.com/divorceinformation.php. Also be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
For more information contact Peace Talks www.peace-talks.com
(C) 2008 Peace Talks Mediation Services, Inc.
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Tags: Creating Fair Settlements, Pretrial Prep, Working with Your Divorce Lawyer
