We have all had those cases where any request that we made, big or small, has been rejected by the other side and any requests that our client has made to her/his spouse is similarly rejected. They don’t agree to informally provide discovery that they will eventually have to provide formally (and then maybe even not then). They won’t agree to a mediator because you proposed him or her. They won’t agree to a joint expert, for the same reason. They wont agree to pay any or the right amount of support. They won’t agree to parenting time. They wont agree to the slightest deviations to parenting time. Post-judgment, when an Agreement says that the parties must agree on something before the other side will have to pay “with consent to not be unreasonably withheld”, they will not agree to anything, nor even make proposals for the other side to agree to.
This is bad when the litigant’s do this. It is worse when the lawyers do it, especially when there is no advantage, tactical or otherwise, not to be agreeable. I have a matter now where the other party simply refuses to answer discovery or do anything whatsoever, and there is no benefit to him in any way, shape or form. Sometimes you hear “my client wont let me agree to an adjournment” which, quite frankly, is rarely, if ever, should be the basis of denying a reasonable adjournment request. But all too often, the lawyer becomes the instrument of the client’s bad behavior or general inability to reasonably agree to anything.
I recently heard a story about a party rejecting out of hand a Consent Order providing the relief that he asked for and got, simply because it was drafted by the other attorney. Instead of getting it done, his attorney said “why did you even bother since he wont sign anything unless I draft it.” Think about that. He was willing to cut off his nose to spite his face, and put himself in a more precarious position, simply because of who the messenger was, ignoring the message completely.
This can permeate every part of a case. How many times have we seen bogus motions to quash of completely discoverable materials (i.e. income information, current bank account information, etc. – i.e. the stuff that you have a duty to update until the end of a case, if requested)? How many times have we had to file repeated motions to compel or repeated enforcement motions? How many times has an adversary apologized for taking a ridiculous position forcing you to file a motion rather than forcing their client to do the right thing?
On the rare occasion that the disagreeable person actually makes a settlement proposal that your client agrees to, how many times have you seen the offer be walked back or the deal otherwise go south because the proposal was really made in bad faith and was never expected to be accepted, and the offering party now thinks that the offer was too good if your client actually accepted.
Are their any benefits to saying no to everything? Assuming the clients can pay, maybe the attorneys do ok. Or do they? When your reputation is damaged and/or your stature and relationship with your judge and your adversary takes a hit, is it worth it? For the parties, unless both parties are equally disagreeable, and this happens sometimes, the court eventually figures out who the difficult party is. Do you want that impression guiding a judge’s substantive or counsel fee decisions.
Now I am not suggesting that you need to agree on everything that the other party says. There will be good faith disputes and disagreements that will have to be resolved by a judge or arbitrator. But, in most cases unless there is an emergency or some really good strategic reason, what is the harm in trying to resolve issues, big and small, before just saying “no,” It doesn’t make you weak, it makes you smart.
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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.
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