Recently, I was at a meeting, and the person across the table from me asked me a very thoughtful question: “Do you believe in settlement or is your philosophy to litigate, litigate, litigate?”
Well, it’s not like sasquatch, I thought to myself. Settlement exists whether I believe in it or not.
Settlement is simply an ever-present reality of every lawyer’s practice. And that’s not just in the area of divorce. A large majority of all cases, across every practice area and venue settle prior to trial.
An article published in Judicature – Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does it Matter?– described a phenomenon where trials, which once played a central role in the American legal system, have all but disappeared:
…today a trial is very much the exception, rather than the rule, regardless of jurisdiction (federal or state), type of case (criminal or civil), type of trial (bench or jury), or type of claim (contract, tort, etc.).
The article goes on to describe the rapid decline of trials; from 20% of all cases having been resolved by trial in 1938, to approximately 1% today.
It is the rare case that goes to trial. But still, some do.
But my counterpart across the table wanted to know if I personally encourage my clients to settle cases, or if I believe litigation is the only path toward a final resolution.
I thought long and hard about how to phrase my answer. And finally, I just expressed my honest opinion, which I would like to share here.
Settlement is a path that I fully support for almost all of my clients, provided it is in their best interests. While in the vast majority of my cases, settlement is in a client’s best interests because it gives them control over the outcome and allows them to tailor a resolution that suits their individual needs, sometimes, matters can be unsettle-able.
What makes a case unsettle-able?
A settlement requires parties acting in good faith on both sides. It requires that both parties will trust that one another will do what they have promised and fulfill their obligations.
However, if one party is engaging in rampant misconduct – for example, alienating children, depleting assets, or concealing information – trust has been broken.
In those types of cases, I am not able to tell a client it is in his or her best interests to settle until order has been restored. Until the bad actor has demonstrated they will actually abide by the agreement and act appropriately, there can be no resolution.
And sometimes getting someone to do the right thing requires a Court’s intervention. Sometimes it requires a realization that they will not succeed as long as they are on their current path. Sometimes it requires a judge’s admonition that bad behavior will not be tolerated.
That is not to say those types of cases can never be settled. But the right time to settle is almost never when someone is actively lying, concealing, or engaging in conduct designed to harm the other party.
To sum up my answer to the question: Do I believe in settlement?
Yes, but only at the right time and under the right circumstances, provided it is in my client’s best interests.
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a partner in the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or email@example.com.