We have all seen cases where one of the parties is unreasonable if not out of control.  I am not talking about taking a hard of aggressive legal position.  I am not talking about taking an aggressive if not unreasonable settlement position – at least to start.  I am talking about a client that refuses to abide by an agreement or an Order.  I am talking about a client that intentionally misinterprets an agreement or an Order because on this occasion, the clear interpretation does not favor her – only to take the exact opposite interpretation the next time when it would be to her favor.  I am talking about someone with oppositional defiance disorder and/or someone who automatically rejects something, even if it is to his or her benefit, simply because it was suggested by the other party or opposing counsel.  I am talking about someone who could either tell the truth or lie, with no greater advantage in lying, but lies anyway.  I am talking about someone that cannot help to put their kids in the middle to hurt their spouse, knowing that they are probably hurting their kids in the process.  There are many other examples I can give based upon my many years as a divorce attorney.

In a perfect world, when this happens, assuming that it is not opposing counsel that is actually causing the problem in the first place, you would hope to be able to tell your client that cooler heads will prevail. Surely you would like to be able to tell your client that opposing counsel will get control of the situation and put the matter back on track, right?  Too often, the answer is no.  Why is this the case?  Sometimes, especially early on, counsel will take their client at face value, without seeking proof or verification.  That is to be expected to some degree though a better practice might be to get more information before going off half-cocked.  But more often than not, that is not the reason at all.  In fact, sadly there are too many practitioners out there willing to do anything that the client wants, without consideration for how it impacts their client in the long run, or their personal reputation.  Don’t get me wrong, I am not suggesting that an attorney should not zealously advocate for their client’s position.  They have to – that is their ethical obligations.  But before furthering the crazy and/or throwing gasoline on the fire, is it not better practice to try and get a situation under control.  Does it really make sense to unprofessionally echo a client’s unfounded attacks to deflect a provable, documented factual account of that client’s misbehavior?  Does it really make sense to let a client take an action or file a certification that will hurt them in the long run?  Though, on the other hand, when a client asks why the other lawyer is doing something in furtherance or defense of the bad behavior or why they haven’t stopped it, I have to remind them that we have no idea what advice the other party was actually given.  Sometimes, it is as simple is that as long as the client is paying them, they will do anything that the client says, no matter if it is good for the client or not.

Again, don’t get me wrong.  There are bona fide disputes.  There are reasons that motions have to be filed.  There are reasons that things need to be litigated.  But there are things that have no business not being brought under control.  When the lawyer absurdly enflames things further and/or defends the indefensible, they become part of the problem instead of being part of the solution.  That is unfortunate for the parties, their children and the system.  More and more, it seems that there are too many practitioners that are all too willing to give credence to the unreasonable or out of control, as opposed to trying to put a case on the right track towards resolution.  That is unfortunate.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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Most clients hire their lawyers for the lawyers expertise and experience.  There is an expectation that the lawyer will guide the client through the process, given them the strategic options, and counsel them regarding settlement positions and opportunities.  Sometimes, client’s hire lawyers that they think they can control, who will do their bidding whether or not the strategy is sound or the legal position meritorious.  Others still, hire their attorneys because of their expertise and experience, yet cannot help themselves and seek to control every detail.

While often, collaboration with a client can create excellent results – after all, who knows the details of their life better then the client.  That said, there is a difference between collaboration, and the client imposing her or her will on the aspects of the case that should be the domain of the attorney.  Even when the client is an attorney, it is dangerous if they think that they know better then their attorney how to present their case.

Several years ago, I represented the wife of an attorney in particular – a litigator.  At a very early mediation, he came into the room boasting, if not threatening that he has tried more cases than anyone in the room.  Throughout the case, he made his lawyer take legally unsupportable positions, played games with discovery, tried to hide assets, failed to provide full information to his own forensic accountant and then, at trial, clearly directed his attorney’s questioning of the witnesses.  Needless to say, after an 11 day trial, he was crushed on every issue.  Moreover, his conduct both before and after the trial caused him to pay a substantial amount of his wife’s legal and expert fees.  His attorney was made to look bad and his forensic accountant was essentially called a liar – albeit in nicer terms – all because of the husband thinking he knew better than anyone else.

I am presently involved in another long trial where it is clear that the opposing litigant is running the show.  His direct examination was unusually long and contained numerous self created exhibits that were testified about in unnecessary detail.  Moreover, the same was true for the expert testimony, both direct, and more importantly on cross examination.  The client created questions at best, unduly lengthened the process, and at worst, could arguably hurt both his own credibility and credibility of his own expert.  Aside from causing the cost of the matter to increase exponentially, the insistence on controlling the questioning could actually negatively impact his case.

The bottom line is that client’s should be careful to not insist that collaboration turn to actual control thereby negating their attorney’s experience and expertise.  While it is not unusual to want to maintain total control, the attorney usually knows the law better and can better implement the jointly agreed upon strategy. The attorney will have a better sense of the big picture and is better able to view things more objectively than the client.  Sometimes less is more.  Not every question needs to be ask.  Not every fact needs to be presented if it doesn’t help, or perhaps can hurt your case.  If one of the allegations is that the spouse is overly controlling, etc., the controlling conduct at trial can prove that point almost better than the other spouse’s testimony.  In short, a client should be careful when insisting on taking over a case from his lawyer.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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Credibility is key when it comes to matrimonial litigation – from your initial filing through the last day of trial. In our practice, we can often make educated guesses of the range for equitable distribution and alimony from the initial consultation based upon the many statutory factors that a court has to consider and some rules of thumb in settlement negotiations. However, there are those cases that do not result in such a typical manner and the reasoning often comes down to presentation.

For a trial that I conducted in February 2016, the Appellate Division recently upheld the court’s decision awarding the plaintiff/wife 100% of the equity in one of the parties’ businesses with a value of $133,000 (where she primarily worked) and 40% of defendant/husband’s $214,000 interest in the other business (where he primarily worked), as well as determining that each party retain his/her individual retirement accounts following a long-term marriage of over 30 years.  Wife’s retirement accounts exceeded those which husband disclosed – being the key word. In addition to this equitable distribution award, the Appellate Division upheld the trial court’s 40% counsel and expert fee award for the wife, totaling $31,388.10.

Why did the wife prevail in this way? It’s pretty simple based upon a reading of the decision – her husband just could not help himself as a litigant or a witness.

As a litigant, he “stonewalled” discovery, failed to pay the support obligation order during the pre-trial phase of the litigation (a.k.a pendente lite support) that was initially agreed upon, and failed to file a complete Case Information Statement (the bible in family law cases that lists income, budget, assets and debts).

As a witness, he would not even give a straight answer for his address. While he may have thought he was being cute when he responded that the wife could have the value one of the companies, and do “whatever she wants to do with it”, the trial court and the Appellate Division used the husband’s own words against him to find that he abdicated any interest in the company.

The husband’s lack of credibility resulted in a unique comment of the Appellate Division when it stated that the trial court’s counsel fee opinion was upheld even though the trial court did not specify the factors considered under the applicable Court Rule, R. 5:3-5(c). The Appellate Division opined that “…the discussion throughout the opinion made clear he had those factors very factors in mind”. The Appellate Division again cited to the husband’s bad faith (without utilizing the term) by citing to the trial court’s findings that the requested fees were “’fair and reasonable’ and that much work was required due to the ‘recalcitrance of [the husband]’”, as well as that the wife “faced substantial difficulties” to enforce court orders and agreements, and ultimately prepare for trial.

So, what’s the takeaway? What you say and how you act at each stage of the case is important… someone is always watching and, oftentimes, that someone is your spouse’s attorney who will jump at the opportunity to show the court how you have oppressed your spouse. Having handled this trial and appeal, I can confirm that cross examining the husband and finally having the opportunity to point out all of the misbehavior was fun, but not for him. You don’t want to end up in that seat! Mind your manners even in the heat of the moment and, as painstaking as it may be, always remember that it’s better to be the “bigger person” – the games will catch up to the other!


Lindsay A. Heller, Associate, Fox Rothschild LLPLindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Last year, I wrote on this blog about “How to Not Settle Your Case.”  This case on the heels of several months of “interesting”, to say the least, negotiations on several matters which got me thinking about creating a list of things to do if you really don’t want to settle your case. In justifying this list, I noted:

Hey, everybody is entitled to their day in court if they want it. So what if there is nothing that can be gained from it. So what if you can’t win. So what if forcing the matter to trial will create other legal issues. So what if trial will cost tens of thousands of dollars.

Since then, I thought of a few more to add to the list.

  • Your new significant other is a lawyer, they know better than your lawyer.  Of course they know better, you have been completely honest with them.  Of course they aren’t telling you what you want to hear – why would they do that?  And when they are speaking to their matrimonial partner about your case, they are giving them all of the facts, context and subtext of the case.
  • Every case is the same, so make sure that you demand the same deal that your hairdresser, or cousin’s friend, heard that that their cousin’s friend got.  While this information, if true, may be food for thought or points of discussion, ignore the potential differences inherent to each matter and demand that you get the same, even if it bears no relation to the appropriate resolution of the case.
  • Pretend that you are Bill Murray in Groundhog Day, and keep having the same conversation over and over, hoping that the answer will be different.  And don’t just do that with your spouse, do it with your lawyer too.
  • Hold grudges and let anger blind you from coming to a resolution that lets you move on with your life.  They are your feelings, don’t only embrace them but let them control all.  And don’t get therapy to deal with the real hurt, betrayal, rejection, depression, mourning, etc. that you are feeling.
  • Allow emotions to impair your judgment on financial issues.  I know that you can’t imagine your spouse living in your home with someone new, but it’s a good idea to take less for the house by selling it rather than allowing your spouse to buy you out.
  • Create a ruse that an emotional issue is really a financial one.  There will be a lot of nasty letters and everyone will be confused because you are not even arguing about the same thing, but at least one of you and his/her lawyer won’t know it.
  • Profess a desire to settle but then never compromise on any issue.  Also, don’t let your experts compromise either, even in the face of an error in their report.  And if they do have to concede the error, make sure that they change something else so that their final number never actually changes.
  • Hire a new lawyer on the eve of mediation or trial, and let that person enter the case like a bull in a china shop, as if the case just started, and there was no prior history.  Ignore the fact that both sides were making concessions and working towards and amicable resolution, and just blow things up and start from scratch, without any basis for doing so.  I am not saying that people cannot and should not change lawyers.  Sometimes it is necessary.  Sometimes the concessions being made are too much, for a variety of reasons.  But in cases where the negotiations and concessions are appropriate on both sides, if you don’t want to settle, pull the rug out from under the negotiations.
  • Hire a second, then third, then fourth, then fifth attorney every time something doesn’t go your way. 
  • In alternating conversations with your lawyer, tell them that you need to settle immediately, then tell her that you want her to litigate aggressively, then settle, then litigate, and so on.  Follow that up by being angry with your lawyer because they were trying to settle when you were back to aggressively litigating, and vice versa.
  • Believe your spouse when they are pressuring you to settle for a lot less than your attorney tells you would be a reasonable settlement.  While perhaps this doesn’t belong on this list, because it is a “how not to settle” list, maybe it belongs on a new list regarding regrets people have after taking a bad deal for the wrong reason.
  • Let your spouse convince you that they you don’t need all of the discovery because “you can trust me”, when all other evidence indicates that you can’t.  Perhaps this belongs with the prior thought.

In case you don’t remember, here is last year’s list:

10. Ignore your expert’s advice. What do they really know about the value of your business or how a judge will likely assess your total income/cash flow? What does an accountant know about taxes, or more importantly, how the IRS may address the creative accounting practices that you or your business have employed? What does the custody expert really know?

9. Ignore your lawyer’s advice. What do they know anyway? If your lawyer is telling you that you should jump at the deal on the table because it looks like a huge win, disregard it. If they tell you that you have real exposure on certain issues or may be forced to pay your spouse’s legal fees, roll the dice. If your attorney tells you that they are willing to try your case, but that you should consider settlement because the cost of the settlement will be less than the cost of the trial plus the absolute minimum you have to pay, don’t believe it. And what does your lawyer know about the law or the judge anyway?

8. Ignore the facts of your case. Trust your ability to spin the facts in a way that doesn’t make sense. Plus, how can they prove if you’re lying.

7. Ignore what the neutrals are saying. What do the Early Settlement Panelists know? What does the mediator know? When the judge has a settlement conference and gives directions, what does she/he know? Assume that the people that have no “horse in the race” are aligned with your spouse or their attorney, have been bought off, or are just plain ignorant. Really, it has nothing to do with the facts of your case or the reasonableness of your position.

6. Ignore the law. It doesn’t apply to you anyway.

5. Continue to misrepresent things, even when the other side has documents to disprove virtually everything you are saying. Assume that you will be deemed more credible than the documents.

4. Believe that the imbalance of power that existed during the marriage will allow you to bully your spouse into an unfair settlement. Assume that your spouse’s attorney won’t try protecting her/him. All lawyers roll over on their clients, right?

3. Take the position that you would rather pay your lawyer than your spouse. Ignore that fact that this tactic usually ends with your doing both, and maybe your spouse’s lawyer too.

2. Pretend as if your spouse never spent a second with the kids in the past and has no right to do so in the future. Make false allegations of neglect or abuse. Ignore the social science research that says that it is typically in the children’s best interests to spend as much time as possible with each parent. What do the experts know about your kids anyway? And while you are at it, bad mouth your spouse to or in front of the kids. Better yet, alienate them. Then fight attempts to fix the relationship.

1. Take totally unreasonable positions implementing any or all of above and on top of that, negotiate backwards. Ignore the maxim “Pigs get fat, hogs get slaughtered.” Put deals on the table and then reduce what you are offering. Negotiate in bad faith. Negotiate backwards. Don’t worry that this conduct may set your case back.

In case it needs to be said (though I doubt it), the above is clearly facetious and tongue in cheek. I do not recommend this behavior. It is usually self-destructive and short sighted. But, believe it or not, these things happen all of the time. While I am not saying that no case should ever be tried, because sometimes trials are necessary, if you want to ensure a costly trial that may not go well for you, try the things on this list. And if it is your day in court that you want, be careful you wish for.

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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 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.

Recently, I did a blog entitled Putting a Stop to Threatening, Bad Faith Negotiations.  In that same case, what preceded the threats, were bad faith diversions or refusals to provide even the most basic of information necessary to settle the case – in this case, "how much are you going to earn this year?" 

Alternating with the vagueness and misinformation about income ("confusing" gross with net to make the income seem smaller") was an outright refusal to address the issues we were discussing.  I get it – the guy doesn’t want to pay alimony.  Who does?  But alimony was a real issue in the case and the real issue that will make or break any settlement. Every time we tried to focus on the alimony issue, the adversary came back without a response on alimony, but raising an irrelevant (in the grand scheme of things), red herring side issue.  This happened time after time. 

After a few times, we ended the discussions for the day.  I am not saying that we wont address the issues raised, if they are truly an issue.  But just like the threats, these smoke screens were raised as a tactic to divert from the main issue, perhaps to wear down my client or otherwise confuse the issues. 

At the end of the day, you have to keep returning the negotiations to the central issues.  Otherwise, you are simply wasting time and allowing the bad faith negotiator use tactics to gain an advantageous settlement.  Stay strong and stay the course.  Don’t allow the negotiations to be hijacked by nonsense.

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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 esolotoff@foxrothschild.com.

Recently, I was involved in a negotiation that seemed, for the first time, to be moving in the right direction. However, at one point when it was getting toward the end of the negotiation, the next counter proposal started, "you have to get rid of your dogs and sell the house …"

I did not need to hear more because that was a threat, not a real proposal. Implicit in the statement was "if you don’t capitulate to my unreasonable demand, I am going to try to take away that which is no important to you."

Recognizing that this was simply a threat, I put a stop to things (to put it nicely). In these situations, when someone resorts to threats or other illegitimate tactics, consider pulling the plug on the discussion or at least make it clear that you will.  You will be surprised how often that corrects the negotiation and returns it to where it should be. 

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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 esolotoff@foxrothschild.com.

This week, I was told by an adversary that her client was taking what clearly is an unrealistic position as to custody and parenting time, "on principle."  I have another matter where a spouse is delaying the matter on principle, because he doesn’t want his spouse to move on with the new significant other.  I tried a case earlier this year, clearly over principle, because the wife wanted permanent alimony in a marriage that clearly warranted a term of years and over her demand for 50% of the value of his medical practice, when a lesser percentage was appropriate.  Another client wanted us to file a motion, on principle, over a minor violation of a parenting time agreement during the hurricane.  In another case, a party is seeking virtually all of the equity in the marital home, clearly on principle, though the law would not suggest she is entitled to anything more than 50% under the facts. 

All of these recent examples remind me of a blog post that I did in 2009 entitled "Musings on Principle vs. Litigation."  The examples, however, suggest at least two different classes of standing on principle.  In the first, someone has a meritorious claim or position, but the cost of litigation exceeds the amount at issue, and/or though right, they are fighting a fight that they don’t need to fight, just to win.  As I recently told a family member who was getting divorced, sometimes it is very expensive to be right. 

The second class of "principle" is the crazy principle where you think you are right, but you really aren’t right.  Not only that, you aren’t listening to your lawyers, mediators, settlement panelists, judges, friends, etc. who are telling you that your position isn’t right.  Rather, these people are embarking on a holy crusade, either to punish the other party or for some other improper reason.

Continue Reading Fighting Over Principle Can Be Expensive and Harmful

Having just experienced several months of "interesting", to say the least, negotiations on several matters, it got me thinking about creating a list of things to do if you really don’t want to settle your case.  Hey, every body is entitled to their day in court if they want it. So what if there is nothing that can be gained from it.  So what if you can’t win.  So what if forcing the matter to trial will create other legal issues.  So what if trial will cost tens of thousand of dollars.  Here is the list:

10.  Ignore your expert’s advice.  What do they really know about the value of your business or how a judge will likely assess your total income/cash flow?  What does an accountant know about taxes, or more importantly, how the IRS may address the creative accounting practices that you or your business have employed?  What does the custody expert really know? 

9.  Ignore your lawyer’s advice.  What do they know anyway?  If your lawyer is telling you that you should jump at the deal on the table because it looks like a huge win, disregard it.  If they tell you that you have real exposure on certain issues or may be forced to pay your spouses legal fees, roll the dice. If your attorney tells you that they are willing to try your case, but that you should consider settlement because the cost of the settlement will be less than the cost of the trial plus the absolute minimum you have to pay, don’t believe it.  And what does your lawyer know about the law or the judge anyway?

8.  Ignore the facts of your case.  Trust your ability to spin the facts in a way that doesn’t make sense.  Plus, how can they prove if you’re lying.

7.   Ignore what the neutrals are saying.  What do the Early Settlement Panelists know?  What does the mediator know?  When the judge has a settlement conference and gives directions, what does she/he know?  Assume that the people that have no "horse in the race" are aligned with your spouse or their attorney, have been bought off, or are just plain ignorant.  Really, it has nothing to do with the facts of your case or the reasonableness of your position.

6.  Ignore the law.  It doesn’t apply to you anyway.

5.  Continue to misrepresent things, even when the other side has documents to disprove virtually everything you are saying.  Assume that you will be deemed more credible than the documents.

4.   Believe that the imbalance of power that existed during the marriage will allow you to bully your spouse into an unfair settlement.  Assume that your spouse’s attorney wont try protect her/him.  All lawyers roll over on their clients, right?

3.   Take the position that you would rather pay your lawyer than your spouse. Ignore that fact that this tactic usually ends with your doing both, and maybe your spouse’s lawyer too.

2.  Pretend as if your spouse never spent a second with the kids in the past and has no right to do so in the future.  Make false allegations of neglect or abuse.  Ignore the social science research that says that it is typically in the children’s best interests to spend as much time as possible with each parent.  What do the experts know about your kids anyway?  And while you are at it, bad mouth your spouse to or in front of the kids. Better yet, alienate them.  Then fight attempts to fix the relationship.

1.   Take totally unreasonable positions implementing any or all of above and on top of that, negotiate backwards.  Ignore the maxim "Pigs get fat, hogs get slaughtered."  Put deals on the table and then reduce what you are offering.  Negotiate in bad faith.  Negotiate backwards.  Don’t worry that this conduct may set your case back.

The above is clearly facetious and tongue in cheek. I do not recommend this behavior.  It is usually self destructive and short sighted.  But, believe it or not, these things happen all of the time.  While I am not saying that no case should ever be tried, because sometimes trials are necessary, if you want to ensure a costly trial that may not go well for you, try the things on this list.  And if it is your day in court that you want, be careful you wish for.

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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 esolotoff@foxrothschild.com.

Oftentimes, a less economically able party is faced with a spouse or former spouse who insists on litigating time and again simply because they can, hoping that the “war of attrition” will force the other party to give them what they want to avoid further motion practice.  We as family practitioners know that while the Rules of Court provide a party with the ability to seek a counsel fee award from the other party for a variety of reasons including, but not limited to, “evening the financial playing field,” assisting a party in need where the other party has the ability to pay, or, commonly, addressing the other party’s unreasonable behavior, courts do not always award fees even in what may seem like an obvious situation to do so.

For example, a party bringing a motion to enforce litigant’s rights may not receive an award of fees even if they tried to settle to no avail before filing the motion, especially where the other party “remedies” the issues before the Court actually decides the motion.  Of course, the motion would not have been filed had the other party earlier complied, but the effort to render issues “moot” after the motion is filed oftentimes sways a court not to award fees even though it was the motion itself that compelled compliance.

I recently dealt with the “war of attrition” litigant, who has filed the same motion against our client time and again – literally, the same motion each and every year post-divorce.  In each of the three years since the divorce, he was denied his requested relief in three separate motions.  As sure as the sky is blue, the former spouse again filed a motion this year – his fourth – for the very same type of relief as to parenting time.  Notably, the former spouse also retains a different attorney for each motion in an effort to cleanse the court’s palette.  In two of the three prior denials of his requested relief, he was Ordered to pay our client substantial counsel fees since he makes six times the annual income of our client, and his repeated efforts to financially pressure our client into getting what he wants have proven transparent in the eyes of the court.

On this fourth occasion, the story was the same and, thankfully the result – a denial of the former spouse’s requested relief and an award of full counsel fees for our client.  While the immediate result was positive, as it has been after each prior motion, I have no doubt that the former husband will again file a motion for the very same relief in 2012, 2013 and beyond until the child is emancipated upon whom the requested relief was based.  While one can only hope that our client will continue to successfully fend off his attacks, the more unfortunate problem is that she cannot stop him from filing his motions.  In fact, when he was denied time around, he verbally questioned the judge, incredulous that he would be denied again despite the lengthy history of denials and him being found to have not only acted unreasonably, but in bad faith, as to his litigation tactics.  It was this response that only further confirmed that we will be back in court next year, starting anew the annual litigation cycle that not only leaves our client financially drained, but also causes great emotional strain upon her and her family that cannot be remedied by a mere award of counsel fees.

Last year, I blogged on this topic after I was at a mediation where the mediator, when telling us his assessment of my client’s case, said that he was creating "settlement anxiety." At the time, I had never heard of this term but what I believed was meant was that the mediator wanted the client to have "anxiety" about his/her position in order to be more likely to make compromises and settle. If the goal is getting a settlement at all costs, I guess it makes sense – but is it fair, especially where one party is acting reasonably, and the other is not.  As this has come up in two recent mediations, I thought it made sense to reprise this post.

In most cases, there is a "realm of reasonableness" or a range in which any settlement would be essentially fair. Perhaps, a fair alimony figure could be between $100,000 per year and $125,000 per year. A fair resolution could be either of those numbers and anything in the middle. In most cases, people, with all relevant facts and acting reasonably, negotiate within the realm of reasonableness, but at either end depending on which side of the case they are on. In that case, a mediator trying to create "settlement anxiety" will try to express the flaws in either case to get the parties to meet somewhere in the middle to achieve a result that is fair.

But what about cases where one party is negotiating within the realm of reasonableness and the other is not? Put another way, what about cases where one party has the law and the facts pretty much on their side as to most issues and the other side is taking a position that is absurd? In this case, should the mediator be trying to create similar "settlement anxiety" in both parties? Add another level – what if the mediator knows that the unreasonable party will never settle the matter in a reasonable fashion? Should the mediator pressure/create the same amount of "anxiety" in the more reasonable party just to achieve a settlement even though everyone knows it is unfair? Should the result be settlement at all costs? Does this type of pressure on the righteous party just to get a deal done artificially undermine a party’s relationship with her counsel and experts, if just for settlement purposes, they are told that their case is weak when it is not?

In my humble opinion, pointing out the legitimate limitations in someones case in order to help create a settlement is fair and appropriate. On the other hand, creating artificial anxiety just to get a settlement all all costs because one party is acting unreasonably or negotiating in bad faith is not. The system should be fair and equitable and the parties are entitled to justice. It is neither fair nor justice to lessen a party’s confidence in their case, artificially, just because the other side will never settle in a fair and reasonable manner.

That does not mean a party cannot give more ore receive less just to get a case done and move on with their life. That is their choice. In fact, in recent cases, the mediators have used the anticipated costs of litigation as the pressure point on the party with the more reasonable position. Perhaps the better tactic would be to tell the unreasonable person of their exposure to pay the reasonable party’s legal fees.

That said, the reasonable litigant should not be manipulated just because the other side refuses to be reasonable. And as I have blogged before, sometimes you just have to try a case.