The Progressive Lawyer: Pretrial and Trial Strategies for Family Law Cases

Expect every case that comes through your door ultimately to settle optimally.

The settlement mindset sharpens our awareness of problem-solving and consensus-building objectives. It triggers conflict management behaviors on our part. With regard to our clients, we become inclined to focus them more on problems than on personalities. We help our clients to get past motives based upon revenge or retaliation. We teach them the power and potential of positive concession-making. We are careful to explain the value of negotiated outcomes, as opposed to imposed directives.

With regard to our adversaries, this cooperation-based perspective allows us to take more of a personal, as opposed to a non-personal stance. We are prompted to spend less time arguing and more time listening. Win-lose zero-sum games are eschewed in favor of defining our goals and objectives in terms of problem solving. Moreover, we carefully avoid the popular trap of becoming our client's alter ego or hired gun. We consistently let the other party's attorney know where we stand and where we are headed and avoid using the element of surprise as a tactic.

The settlement mindset helps us focus on issue identification, prioritization, remediation and closure. We assist our clients by attempting to substitute problem-solving assignments, activities and other productive behaviors for anger, disappointment and frustration on their part. We conserve resources by applying energy and funds to resolve the most important concerns, as opposed to trivial, emotionally-fueled concerns. In conducting necessary discovery, we focus our efforts on obtaining essential decision-making data, rather than playing various discovery games, which only serve to deplete funds and increase the level of contention between the parties and their attorneys.

By entertaining the settlement mindset, we promote the employment, if not exhaustion, of non-litigated alternatives. Creativity in problem-solving is encouraged. The settlement team of attorney and client becomes focused on satisfying actual needs, rather than assuming certain inflexible bargaining positions.

The settlement-oriented attorney knows how to avoid threats and ultimata when impasses are reached. Appropriate third-party resources can also be employed to break deadlocks, while carefully considering how the use of certain resources may further polarize personalities. Trial runs can also be used to test potential solutions prior to firming up agreements.

This helpful mindset keeps the process moving toward ultimate settlement. It provides quality assurance and feedback on the success of lawyering efforts, based upon the increments of settlement achieved.

Practice Point Two: The Trial Mindset

Assume that every case that comes your way is going to trial.

The simultaneously held trial mindset helps to keep us focused on the statutory and case law. It provides us with rule-based measuring sticks to discern between what our clients want and what will likely be decided under the law. With the benefit of these reference points, we can appropriately direct clients' attentions to the right things; pragmatically moderating ongoing behaviors.

The trial mindset casts a relevance frame around the information we convey to our clients, while serving to justify that which is required of our clients. Importantly, focusing on the legal viability of our client's cause helps us to identify lost causes.

Orienting ourselves fully to the possibility of trial creates a heightened awareness of the necessary proofs. Are documentary proofs available? Will they be admissible? Is third party testimony available? Is the witness willing to testify? Is the witness credible? Are the costs of obtaining these proofs affordable?

Thinking in terms of trial from the beginning helps to shine a critical light on that which is unnecessary or counterproductive. In most jurisdictions, it highlights the differences between that which might have been awarded pendente lite and that which might be awarded at the conclusion of the trial. Often, there are different statutory and practice standards. Vigilant adherence to rules of procedure and evidence might also highlight the different between motion practice and trial.

The trial, rule-governed mindset can help to steer the litigation and settlement process away from ad hominum attacks and baseless argument. It also helps us to sharpen client counseling. In most jurisdictions, thinking in terms of trial sets up an expectation of negative consequences for bad-faith litigation processes or goals, where there is ultimate accountability for inappropriate litigational and personal behaviors.

The trial mindset encourages economy of method from the start. The trial-minded attorney controls costs and monitors budgets. He or she cultivates favorable judicial impressions by displaying sound reason, conserving personal energies and resources in the process. Veteran trial attorneys are the first to appreciate the fact that unchecked, unfocused litigational activities leave more opportunities for error.

Attorneys that must be in a state of trial-readiness are motivated to create and maintain trial-friendly files from the start, with an emphasis on the orderliness, as well as the relevance and importance of the content. They enjoy a sense of vigilance and non-complacency. 'Fear of trial' does not impede their ability to negotiate optimal outcomes for their clients. Their way of thinking and behaving throughout the course of an engagement facilitates their ultimate preparation for trial in the event that attempts to reach a negotiated agreement fail.

Binocular Mindset Summary

This seemingly paradoxical viewpoint is an important, if not indispensable one. Good lawyers have to be able to argue both sides of any issue. They should likewise be capable of simultaneously entertaining the 'what-ifs' of settlement and trial.

Curtis J. Romanowski, a member of this newsletter's Board of Editors, limits his practice to New Jersey Divorce, Matrimonial Law, Child Custody Law and Family Law. He is President, Collaborative Family Institute, LLC, an organization dedicated to positive transformation of divorce, child custody and parenting disputes in America. Romanowski is a Court-Appointed Chancery Division Mediator, Matrimonial Early Settlement Program (ESP) Panelist & Parent Coordinator / Parenting Coordinator. He is included on the Presiding Judge's list of Counsel for Children & Guardians Ad Litem.

One of the greatest opportunities for immediate improvement in the practice of matrimonial law lies in the cultivation of the binocular mindset. Binocularity involves the balancing of the settlement mindset with the trial mindset. This balancing occurs even in situations in which the practicing attorney has no intention of ever going to trial. Such situations present themselves, for example, where the attorney is practicing in the context of a collaborative law engagement, or where financial constraints, coupled with client direction, do not allow for the possibility of trial.

Speaking as someone who has both tried dozens of cases and participated in the collaborative resolution of many divorces, I can state without reservation that an absence of balance in this area can only be detrimental to the way we practice matrimonial law. Although a cooperative, settlement-oriented mindset is essential ' if not preferred' a competitive, trial-oriented mindset cannot be neglected. Fortunately, we can and should entertain both of these mindsets simultaneously to optimize the way we function in the service of our clients.

Practice Point One: The 'Settlement Mindset'

Expect every case that comes through your door ultimately to settle optimally.

The settlement mindset sharpens our awareness of problem-solving and consensus-building objectives. It triggers conflict management behaviors on our part. With regard to our clients, we become inclined to focus them more on problems than on personalities. We help our clients to get past motives based upon revenge or retaliation. We teach them the power and potential of positive concession-making. We are careful to explain the value of negotiated outcomes, as opposed to imposed directives.

With regard to our adversaries, this cooperation-based perspective allows us to take more of a personal, as opposed to a non-personal stance. We are prompted to spend less time arguing and more time listening. Win-lose zero-sum games are eschewed in favor of defining our goals and objectives in terms of problem solving. Moreover, we carefully avoid the popular trap of becoming our client's alter ego or hired gun. We consistently let the other party's attorney know where we stand and where we are headed and avoid using the element of surprise as a tactic.

The settlement mindset helps us focus on issue identification, prioritization, remediation and closure. We assist our clients by attempting to substitute problem-solving assignments, activities and other productive behaviors for anger, disappointment and frustration on their part. We conserve resources by applying energy and funds to resolve the most important concerns, as opposed to trivial, emotionally-fueled concerns. In conducting necessary discovery, we focus our efforts on obtaining essential decision-making data, rather than playing various discovery games, which only serve to deplete funds and increase the level of contention between the parties and their attorneys.

By entertaining the settlement mindset, we promote the employment, if not exhaustion, of non-litigated alternatives. Creativity in problem-solving is encouraged. The settlement team of attorney and client becomes focused on satisfying actual needs, rather than assuming certain inflexible bargaining positions.

The settlement-oriented attorney knows how to avoid threats and ultimata when impasses are reached. Appropriate third-party resources can also be employed to break deadlocks, while carefully considering how the use of certain resources may further polarize personalities. Trial runs can also be used to test potential solutions prior to firming up agreements.

This helpful mindset keeps the process moving toward ultimate settlement. It provides quality assurance and feedback on the success of lawyering efforts, based upon the increments of settlement achieved.

Practice Point Two: The Trial Mindset

Assume that every case that comes your way is going to trial.

The simultaneously held trial mindset helps to keep us focused on the statutory and case law. It provides us with rule-based measuring sticks to discern between what our clients want and what will likely be decided under the law. With the benefit of these reference points, we can appropriately direct clients' attentions to the right things; pragmatically moderating ongoing behaviors.

The trial mindset casts a relevance frame around the information we convey to our clients, while serving to justify that which is required of our clients. Importantly, focusing on the legal viability of our client's cause helps us to identify lost causes.

Orienting ourselves fully to the possibility of trial creates a heightened awareness of the necessary proofs. Are documentary proofs available? Will they be admissible? Is third party testimony available? Is the witness willing to testify? Is the witness credible? Are the costs of obtaining these proofs affordable?

Thinking in terms of trial from the beginning helps to shine a critical light on that which is unnecessary or counterproductive. In most jurisdictions, it highlights the differences between that which might have been awarded pendente lite and that which might be awarded at the conclusion of the trial. Often, there are different statutory and practice standards. Vigilant adherence to rules of procedure and evidence might also highlight the different between motion practice and trial.

The trial, rule-governed mindset can help to steer the litigation and settlement process away from ad hominum attacks and baseless argument. It also helps us to sharpen client counseling. In most jurisdictions, thinking in terms of trial sets up an expectation of negative consequences for bad-faith litigation processes or goals, where there is ultimate accountability for inappropriate litigational and personal behaviors.

The trial mindset encourages economy of method from the start. The trial-minded attorney controls costs and monitors budgets. He or she cultivates favorable judicial impressions by displaying sound reason, conserving personal energies and resources in the process. Veteran trial attorneys are the first to appreciate the fact that unchecked, unfocused litigational activities leave more opportunities for error.

Attorneys that must be in a state of trial-readiness are motivated to create and maintain trial-friendly files from the start, with an emphasis on the orderliness, as well as the relevance and importance of the content. They enjoy a sense of vigilance and non-complacency. 'Fear of trial' does not impede their ability to negotiate optimal outcomes for their clients. Their way of thinking and behaving throughout the course of an engagement facilitates their ultimate preparation for trial in the event that attempts to reach a negotiated agreement fail.

Binocular Mindset Summary

This seemingly paradoxical viewpoint is an important, if not indispensable one. Good lawyers have to be able to argue both sides of any issue. They should likewise be capable of simultaneously entertaining the 'what-ifs' of settlement and trial.

Curtis J. Romanowski, a member of this newsletter's Board of Editors, limits his practice to New Jersey Divorce, Matrimonial Law, Child Custody Law and Family Law. He is President, Collaborative Family Institute, LLC, an organization dedicated to positive transformation of divorce, child custody and parenting disputes in America. Romanowski is a Court-Appointed Chancery Division Mediator, Matrimonial Early Settlement Program (ESP) Panelist & Parent Coordinator / Parenting Coordinator. He is included on the Presiding Judge's list of Counsel for Children & Guardians Ad Litem.