Sometimes, instead of practicing family law, it feels like we are playing a game of legal Whack A Mole.  You know what Whack A Mole is, right?  For those who don’t, it is the carnival game where the player has a mallet and has to hit the mole that pops up.  As soon as you hit one mole, another pops up, again and again.

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What is legal whack a mole, you may ask.  It is when every time you think that you have a case resolved, another issue is raised, out of the blue.  Often it is an issue that you thought you had resolved.  Often it is an issue of insignificance.  Perhaps it is a request for information that was already provided, or on a resolved issue, or better yet, a list for updated information that wouldn’t likely change the prior resolution.  Dealing with this makes you feel like the proverbial Dutch boy trying to plug the new leaks in the dike.  This is worse than the never ending negotiation that I have blogged about, because there really is no end in sight.

The key to dealing with this is to try to find out who this is coming from.  Is it coming from the other party?  If so, that might indicate that he or she is just not ready to settle the case and move on (especially if there has been extensive and complete or largely complete discovery.)  One of the first posts I did on this blog in 2008 was called All Cases Have a Life of Their Own.  Some times, you just have to wait for the other party to be ready to settle.

More problematic is when the other attorney is the impediment to settlement.  Now, it is one thing when you are trying to protect your client from selling him or herself out by agreeing to a deal that they will surely regret when the guilt, pressure, duress, etc. wears off.  I would argue that it is the attorney’s job to protect the client the best they can in that way, especially where all of the facts are not known – though at the end of the day, the decision to settle is ultimately the party’s.

That’s not what I am talking about here.  Rather, I am talking about when an adversary is obstreperous and an impediment to settlement for no apparent reason.  I have had an adversary that has blown up deals reached in mediation with lawyers present, 5 different times, though it was clear that his client wanted to settle.  I have had adversaries who have refused to allow the judge or mediator speak with their client alone.  I have had adversaries try to storm out of mediation with their client tugging on their arms to stay.  I have had adversaries delay, ask for more information, that they didn’t look at for months, only to then ask for updated information, or updated appraisals, or more depositions, or more experts with no clear direction or end game other than to drag the case out.

If the attorney is the culprit, as opposed to the client, some times it is best to get the trial judge involved.  If the trial judge cannot pressure/craft a settlement, at least she or he will see what is really happening and who is being unreasonable.  Because the issue in these types of cases often becomes counsel fees as the tail wagging the dog, the judge will quickly get the picture and this can impact or negate the offender’s claim for fees after a trial.  And if the nonsense continues, as I have said before, some times you just have to try a case.

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Eric SolotoffEric 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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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