Practical Tips for Negotiating Settlement in Matrimonial Cases

The most important step is groundwork. There is no substitute for preparation. You must make sure that you are fully familiar, not only with the particular facts of each case, but also with the relevant law as it affects your case and the strengths and weaknesses of your position and the other party's position. You should have the relevant issues briefed, or at least have copies of case law or statutes to rely on at a conference. When focusing on the significant issues in the case, it can be helpful to outline the strengths and weaknesses of the issue so you can turn to them at a meeting.

Meet with your client in advance to discuss what issues are to be discussed, what your client's position is with regard to the various issues and, most importantly, understanding what issues are of the strongest concern to your client, and prioritize those issues. You should prepare an outline for the settlement with the client and also have an understanding between you and your client as to the issues on which you are willing to compromise and those on which you are not. Explain to your client that while there is an outline of the issues to be discussed, you will be open to allowing the discussion to move forward without rigidly adhering to the outline. Flexibility during settlement discussions is very helpful.

Review Adversary's Issue List

Counsel sometimes exchange position papers prior to the meeting. Counsel should discuss the papers with their clients prior to submission, and the same analysis should go into reviewing the adversary's issue list. Most of the time, written positions are not exchanged in advance. There are circumstances in which your clients may have a better understanding of what issues are more significant to their spouse than you do, despite the fact that you may have a better understanding of the economics and law.

Manage Your Client's Expectations

A battle-scarred attorney knows that it is crucial to manage the client's expectations. While the good practitioner will have done so from the inception of the case, clients must understand that by entering into the negotiation, they cannot expect to come away with everything that they want. As it is somewhat expected that all parties will participate in the negotiation 'dance,' all settlement proposals should provide you with a sufficient amount of flexibility to negotiate from your first position. However, it is not appropriate to negotiate for items you do not want; it wastes the client's money, and the adversary will not be able to rely on your word when you say an issue is non-negotiable if he/she has observed you fighting for throw-away items. If the client has unrealistic expectations, he/she should be formally advised as to why you do not believe those expectations are realistic; this should be done in writing throughout the process. Doing it in writing protects your file, as well as enables your client to review a written summation of your position .

Complete All Discovery

In order to analyze the case effectively, you must complete all discovery. If the client does not want you to pursue full and complete discovery, you must explain to the client the negative ramifications of this and you must insist that they sign the appropriate waiver. Clients may believe that they have a fair understanding of the value of the marital home, for example; however, as an attorney, you are not capable of advising your client as to the value of an asset. If an expert is involved, the client should have spoken to the expert in your presence so that he/she understands the expert's report and the support of the position.

Lay Out the Parameters of Setttlement

Help the client understand what you believe to be the parameters of a reasonable settlement. Prior to the meeting the client should be aware of what you believe to be a reasonable settlement and the client must be willing to accept a reasonable settlement. One way to go about this is to put yourself in the other attorney's shoes. Explain to your client that in most cases both parties have to be somewhat satisfied ' as well as somewhat dissatisfied ' with the terms of the settlement. You may advise your client what steps you would be taking if you were representing the other side, as the other lawyer is no doubt representing his/her client as aggressively and zealously as you are representing yours.

Manage 'Advisers'

Your client may have a friend, family member, religious adviser or financial adviser whom he or she has been using as a sounding board. Sometimes clients have a number of advisers. It is best if all the advisers are on the same page and participate in the decisions in the case. Tell your client that he/she is welcome to bring this person into pre-settlement meetings with you. Obviously, there should be discussions as well as written confirmation that such a third-party being present would serve to vitiate any attorney/client confidentiality. A benefit of having such a person involved is that this individual may be able to serve as a voice of reason in a very emotional situation and may be able to continue to discuss the case with your client after they have left the meeting with you. Moreover, the individual also may help to correct any misunderstanding that the client may have taken away from the meeting.

Review Tax Issues

Understand how you can use tax issues to assist with settlement. Whenever possible, use the government as a 'third party' to assist with regard to the settlement. Using the government in this way may help to free up monies, which may be necessary in order to resolve the case. This method may require meeting with an accountant and your client so that the client is familiar with these options. Unless you are a tax attorney or an accountant, be sure not to give advice outside your area of expertise. Although matrimonial attorneys obtain knowledge of certain tax laws, you should always be sure to confirm any advice unless you are positive of the accuracy. Bring in other experts as appropriate/necessary such as criminal lawyers, appraisers, etc. as the facts of your case require. Remember, unless you have such specific expertise and training, a matrimonial practitioner should not give tax advice.

Review Your Notes

Review the notes from your initial consultation. It has probably been sometime since you first met with your client. What were the goals at that first meeting? Have those goals changed? If so, what has happened that has caused those goals to change? Have you lost sight of your client's goals? It is essential that you and your client are on the same page not only with regard to their expectations but with regard to what goals they have as a final outcome. Also, what was your first impression of your client? Although, hopefully, your client is calmer at this point, your client may be bringing that same first impression to the conference, and that is the impression your adversary will have. Settlement conferences usually take place well into the case and if a Complaint for Divorce has been filed, the closer to the date scheduled for trial, the more imperative it is that you educate your client as to the potential pitfalls of litigation. Even attorneys who have not been practicing for a lengthy period of time understand that it is very unusual for clients to get everything they seek at a trial. Furthermore, the cost of preparing for trial and the trial itself can be exorbitant. Many attorneys tell clients that they can expect two days of preparation for every day of trial. The costs also include the client's missing time from work, the retention of experts to testify at trial and, in the worse case scenario, the ordering of transcripts and the possibility of appeal if one party feels as though the trial judge made an error as a matter of law. This will, obviously, prolong the litigation and the client's desire for closure will be delayed. As we all know, very few cases go to trial. Therefore, since almost every case will settle, it is extraordinarily important to develop a level of excellence at settling cases.

Display Your Confidence

Along with being well prepared, you must be confident in your legal skills. Your client will feel this confidence and will be reassured by it. Your adversary will also see this confidence and, as a result, the adversary may question certain positions that he/she is taking, particularly if he/she is less prepared than you are.

Take the Initiative

Finally, take the initiative with regard to scheduling the conference. Whether it is a four-way conference (clients and attorneys), a six-way conference (clients, attorneys and accountants), or another form, offer to have it held at your office provided that you have sufficient space for the all of the participants to meet in one room, and additionally, have comfortable rooms so that caucuses can take place. Always have food available or order food. More progress is made when stomachs are full rather than when parties or counsel get irritable because they have not eaten.

An alternate school of thought is to offer to have the first meeting held at the other attorney's office. This may assist in helping the opposing attorney, particularly if he or she represents the more nervous party, feel more comfortable and assist them in getting into the negotiating frame of mind. Moreover, you can then offer to have the second meeting held at your office. It is at the second meeting that the actual settlement may take place. Often, many meetings will be required to settle a case. Always schedule enough time for the conference. If you arrive and say you have to leave soon, it taints the settlement process.

It is helpful to have a very rough draft of a settlement agreement prepared to bring with you to the conference or to have it with you on your laptop so that the terms and conditions can be finalized with all parties and counsel present. This can often assist in bringing about a resolution and can also prevent a settlement from slipping away; sometimes when the parties leave a settlement conference, they will have second thoughts.

The conclusion of this article will discuss what to do at the conference and afterwards.

Lynne Strober, a member of this newsletter's Editorial Board and a Fellow of the American Academy of Matrimonial Lawyers, co-chairs the Family Law Department of the West Orange, NJ, firm of Mandelbaum Salsburg. David S. Carton, a partner in the firm, represents clients in all aspects of family law practice including divorce, domestic violence, domestic partnership, custody, parenting time, child support, alimony and division of assets.

To negotiate a matrimonial case successfully, the practitioner must zigzag through a litany of impediments. These include the facts of the case, the relevant law, as well as the adversary and client, both of whom come with their own personalities, priorities and quirks. This two-part article (Part Two will appear in the April 2008 Issue) is offered as a guide to settling matrimonial cases.

Preparation for Settlement

Do Your Groundwork

The most important step is groundwork. There is no substitute for preparation. You must make sure that you are fully familiar, not only with the particular facts of each case, but also with the relevant law as it affects your case and the strengths and weaknesses of your position and the other party's position. You should have the relevant issues briefed, or at least have copies of case law or statutes to rely on at a conference. When focusing on the significant issues in the case, it can be helpful to outline the strengths and weaknesses of the issue so you can turn to them at a meeting.

Meet with your client in advance to discuss what issues are to be discussed, what your client's position is with regard to the various issues and, most importantly, understanding what issues are of the strongest concern to your client, and prioritize those issues. You should prepare an outline for the settlement with the client and also have an understanding between you and your client as to the issues on which you are willing to compromise and those on which you are not. Explain to your client that while there is an outline of the issues to be discussed, you will be open to allowing the discussion to move forward without rigidly adhering to the outline. Flexibility during settlement discussions is very helpful.

Review Adversary's Issue List

Counsel sometimes exchange position papers prior to the meeting. Counsel should discuss the papers with their clients prior to submission, and the same analysis should go into reviewing the adversary's issue list. Most of the time, written positions are not exchanged in advance. There are circumstances in which your clients may have a better understanding of what issues are more significant to their spouse than you do, despite the fact that you may have a better understanding of the economics and law.

Manage Your Client's Expectations

A battle-scarred attorney knows that it is crucial to manage the client's expectations. While the good practitioner will have done so from the inception of the case, clients must understand that by entering into the negotiation, they cannot expect to come away with everything that they want. As it is somewhat expected that all parties will participate in the negotiation 'dance,' all settlement proposals should provide you with a sufficient amount of flexibility to negotiate from your first position. However, it is not appropriate to negotiate for items you do not want; it wastes the client's money, and the adversary will not be able to rely on your word when you say an issue is non-negotiable if he/she has observed you fighting for throw-away items. If the client has unrealistic expectations, he/she should be formally advised as to why you do not believe those expectations are realistic; this should be done in writing throughout the process. Doing it in writing protects your file, as well as enables your client to review a written summation of your position .

Complete All Discovery

In order to analyze the case effectively, you must complete all discovery. If the client does not want you to pursue full and complete discovery, you must explain to the client the negative ramifications of this and you must insist that they sign the appropriate waiver. Clients may believe that they have a fair understanding of the value of the marital home, for example; however, as an attorney, you are not capable of advising your client as to the value of an asset. If an expert is involved, the client should have spoken to the expert in your presence so that he/she understands the expert's report and the support of the position.

Lay Out the Parameters of Setttlement

Help the client understand what you believe to be the parameters of a reasonable settlement. Prior to the meeting the client should be aware of what you believe to be a reasonable settlement and the client must be willing to accept a reasonable settlement. One way to go about this is to put yourself in the other attorney's shoes. Explain to your client that in most cases both parties have to be somewhat satisfied ' as well as somewhat dissatisfied ' with the terms of the settlement. You may advise your client what steps you would be taking if you were representing the other side, as the other lawyer is no doubt representing his/her client as aggressively and zealously as you are representing yours.

Manage 'Advisers'

Your client may have a friend, family member, religious adviser or financial adviser whom he or she has been using as a sounding board. Sometimes clients have a number of advisers. It is best if all the advisers are on the same page and participate in the decisions in the case. Tell your client that he/she is welcome to bring this person into pre-settlement meetings with you. Obviously, there should be discussions as well as written confirmation that such a third-party being present would serve to vitiate any attorney/client confidentiality. A benefit of having such a person involved is that this individual may be able to serve as a voice of reason in a very emotional situation and may be able to continue to discuss the case with your client after they have left the meeting with you. Moreover, the individual also may help to correct any misunderstanding that the client may have taken away from the meeting.

Review Tax Issues

Understand how you can use tax issues to assist with settlement. Whenever possible, use the government as a 'third party' to assist with regard to the settlement. Using the government in this way may help to free up monies, which may be necessary in order to resolve the case. This method may require meeting with an accountant and your client so that the client is familiar with these options. Unless you are a tax attorney or an accountant, be sure not to give advice outside your area of expertise. Although matrimonial attorneys obtain knowledge of certain tax laws, you should always be sure to confirm any advice unless you are positive of the accuracy. Bring in other experts as appropriate/necessary such as criminal lawyers, appraisers, etc. as the facts of your case require. Remember, unless you have such specific expertise and training, a matrimonial practitioner should not give tax advice.

Review Your Notes

Review the notes from your initial consultation. It has probably been sometime since you first met with your client. What were the goals at that first meeting? Have those goals changed? If so, what has happened that has caused those goals to change? Have you lost sight of your client's goals? It is essential that you and your client are on the same page not only with regard to their expectations but with regard to what goals they have as a final outcome. Also, what was your first impression of your client? Although, hopefully, your client is calmer at this point, your client may be bringing that same first impression to the conference, and that is the impression your adversary will have. Settlement conferences usually take place well into the case and if a Complaint for Divorce has been filed, the closer to the date scheduled for trial, the more imperative it is that you educate your client as to the potential pitfalls of litigation. Even attorneys who have not been practicing for a lengthy period of time understand that it is very unusual for clients to get everything they seek at a trial. Furthermore, the cost of preparing for trial and the trial itself can be exorbitant. Many attorneys tell clients that they can expect two days of preparation for every day of trial. The costs also include the client's missing time from work, the retention of experts to testify at trial and, in the worse case scenario, the ordering of transcripts and the possibility of appeal if one party feels as though the trial judge made an error as a matter of law. This will, obviously, prolong the litigation and the client's desire for closure will be delayed. As we all know, very few cases go to trial. Therefore, since almost every case will settle, it is extraordinarily important to develop a level of excellence at settling cases.

Display Your Confidence

Along with being well prepared, you must be confident in your legal skills. Your client will feel this confidence and will be reassured by it. Your adversary will also see this confidence and, as a result, the adversary may question certain positions that he/she is taking, particularly if he/she is less prepared than you are.

Take the Initiative

Finally, take the initiative with regard to scheduling the conference. Whether it is a four-way conference (clients and attorneys), a six-way conference (clients, attorneys and accountants), or another form, offer to have it held at your office provided that you have sufficient space for the all of the participants to meet in one room, and additionally, have comfortable rooms so that caucuses can take place. Always have food available or order food. More progress is made when stomachs are full rather than when parties or counsel get irritable because they have not eaten.

An alternate school of thought is to offer to have the first meeting held at the other attorney's office. This may assist in helping the opposing attorney, particularly if he or she represents the more nervous party, feel more comfortable and assist them in getting into the negotiating frame of mind. Moreover, you can then offer to have the second meeting held at your office. It is at the second meeting that the actual settlement may take place. Often, many meetings will be required to settle a case. Always schedule enough time for the conference. If you arrive and say you have to leave soon, it taints the settlement process.

It is helpful to have a very rough draft of a settlement agreement prepared to bring with you to the conference or to have it with you on your laptop so that the terms and conditions can be finalized with all parties and counsel present. This can often assist in bringing about a resolution and can also prevent a settlement from slipping away; sometimes when the parties leave a settlement conference, they will have second thoughts.

The conclusion of this article will discuss what to do at the conference and afterwards.

Lynne Strober, a member of this newsletter's Editorial Board and a Fellow of the American Academy of Matrimonial Lawyers, co-chairs the Family Law Department of the West Orange, NJ, firm of Mandelbaum Salsburg. David S. Carton, a partner in the firm, represents clients in all aspects of family law practice including divorce, domestic violence, domestic partnership, custody, parenting time, child support, alimony and division of assets.