This is my final offer!!! Don’t you just love the ultimatum, the line in the sand, the threat of Armageddon if capitulation is not immediately at hand? I sure do. Is it because I love to go to trial? Don’t get me wrong, I enjoy trial but that is not the reason.
Seldom does it mean that a reasonable counter proposal won’t be considered it it doesn’t materially alter the terms being discussed. Usually it means that your are getting pretty close to a settlement so that the proclamation can alert you and your client that now may be the time to do a deal. In a recent case that I just settled, almost comically, each side probably sent 5 "final offers."
And why is a final offer seldom a final offer? Because 99% of all cases settle. Because the system is geared to promote settlement. Because before you go to trial, you will go likely go to custody and parenting time mediation, an Early Settlement Panel (ESP), mandatory economic mediation (sometimes several sessions), and an Intensive Settlement Conference (ISC) with the judge, or many. Often, your first trial date is not a real trial date, but rather another day to bring the parties (and perhaps experts too) in to try and cajole or finesse and strong arm a settlement. Even on your real trial date, perhaps before and often during the breaks of a trial, the judge will encourage settlement and/or the circumstances of how the trial is going may encourage settlement.
So keep giving us your "final offers." Sometimes, our client will accept them. Other times, we will make a counter offer and await your next final offer until one day, the case will be settled or tried to conclusion.
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.