I had a case recently where we had a conference call with the judge during which time, a discrete issue holding up resolution of a larger issue was discussed. The judge made a suggestion which I took down verbatim and drafted language which I thought would resolve the issue. The problem, the judge’s suggestion was contrary to what the other litigant wanted. So what appeared to happen is that his lawyer either did not accurately report what was said or "spun" it in a way to not accurately reflect what the judge said.
In another matter, resolution of financial issues were discussed in chambers with the judge. As I was reporting to my client what the judge said, we heard the other lawyer, who was speaking way to loud given as close as he was, spinning a entirely different client because the truth was not something the client would have wanted to hear.
Aside from running up counsel fees, seeking clarification from the judge (or hoping that she/he will change her/his mind), what purpose does this serve? Is saving face with a client better than being honest, if not brutally honest, about their prospects?
I have heard many clients say that they went to initial consultations with attorneys who promised the world to get the case, only to then fail to deliver. Of course they failed to deliver if they were promising that which is contrary to the law, overreaching or unreasonable under the circumstances.
While clients have a right to seek what they want, they need to hear what they can realistically expect so that they are not surprised if they don’t get the result that they have hoped for. There are parties that want to push the envelope, either because an issue is novel, or because they really want something but are willing to give up something else, and sometimes for un-pure reasons. However, if they are fully informed of their chances, or what the judge is saying, or both, they will not be able to say,"you never told me." Moreover, it is better for a party to learn the truth as early as possible so that they can decide whether they really want to fight a losing fight or preserve their financial and emotional resources.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.