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Several years ago, I posted a blog entitled "Some Times You Just Have to Try a Case."  In that post, I discussed that there are some times where a litigant simply refuses to settle making a trial inevitable.  Are there times, however, when a trial might be less costly, quicker and preferable to long, drawn out, and perhaps insufferable negotations.  I have dubbed these mind numbing, perhaps bad faith negotiations, where sometimes you take one step forward and two steps back and sometimes, no issue is ever resolved, and sometimes, you make an offer about alimony and the response is about equitable distribution – death by a thousand paper cuts.  Whether intentional or not, you wonder whether a trial would have just been bettter.

I ponder that after recently concluding a case that, while having one little twist, which we got past several months ago, then endured numerous mediation sessions, numerous Intensive Settlement Conferences at the Courthouse and even more than one scheduled uncontested hearing where even the final changes had final changes, plus new changes.  In fact, I have recently had several cases where it took an inordinate amount of mediation sessions to resolve simple cases.  In one reasonably simple case, the parties went to mediation 6 or 7 times, before attorneys attended and even then, it did not settle despite the outcome being obvious.  In another, after 9 mediation sessions (7 with lawyers present), the case remains unsettled though only small dollars in the big picture remain in dispute. 

In your garden variety case, the inordinately drawn out process only serves to either wear a party out and forces the righteous client to give up to either move on or stop the bleeding of legal fees.  Otherwise, they incur a large legal bill just to get to the place they should have been had the other side acted reasonably (presuming for the second that they have negotiated fairly and reasonably.)

While I understand the desire to avoid trial at all costs for all of the usual reasons – finality, having control of your own destiny as opposed to putting the decision in the hands of a stranger, etc.- if the process comes to a place where all things considered, you cannot do worse if you go to trial, maybe a party should consider pulling the plug on these expensive snails pace and/or bad faith drawn out negotiations,  Perhaps the threat, if it is a real threat and you actually start doing what is necessary to prepare for trial, will stop the nonsense and get the other side to end the case once and for all. 

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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.

Trials in divorce matters are kind of like the Loch Ness monster – lots of people of heard of it, but few have actually seen it.  The system is currently set up such that there are many vehicles to get people to a settlement.  Moreover, most cases should be settled.  In fact, as I have blogged in the past, the cases that often get tried are ones where one, if not both parties, are totally unreasonable and unrealistic. As noted in prior blogs,there are, however, bona fide cases that cannot be settled and must be tried.

Many judges have a pre-trial Order or letter citing requirements of things that must be done before trial.  One of the things often on the list is that counsel are supposed to confer to to see if the can reach any stipulations as to facts, and sometimes legal issues.  Court’s have noted that "stipulations serve as a tool that enables parties to avoid the expense, trouble, and delay of adducing proofs on facts that, absent a stipulation, are contestable."  Though I have one colleague that refuses to enter in to stipulations because he feels that it throws off the flow or leaves holes in his presentation, generally, stipulations are a good thing because it cuts down on what is already limited trial time. 

Courts often also require parties to confer about joint exhibits for the same reason.  Once the parties agree, the exhibits are marked and should go into evidence without the need for authentication of other testimony.  Examples of things that are commonly joint exhibits are tax returns, bank records, prior court orders and transcripts, credit card records, and the like. 

The question then is, does a trial court have to accept the stipulation, and if they don’t, what is supposed to happen.
 

Continue Reading What Happens When the Judge Ignores Trial Stipulations

Recently, 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."  I had never heard this term but what I believe 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?

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

I have a matter now that will likely go to trial in the early part of the new year.  It appears inevitable. 

Sometimes there are just those cases where a client is put in the impossible position of having to make a "Hobson’s choice" accepting a patently unfair or otherwise unpalatable settlement or taking their chances at trial.  I am not talking about accepting a deal that is on the low end of the "realm of reason" or agreeing to a little more or a little less in parenting time.  Rather, in order to get the case over with and "stop the bleeding", they have faced with the proposition of having to take less than is reasonable or agree to more/less parenting time then is fair, appropriate and/or in the best interests of the children. 

One can only hope that if the choice is trial, that the judge will see that the other side is simply not reasonable.  In that case, the hope is that the trial judge will make a generous award of counsel fees to make the oppressed party whole, or close to it, for having deal with unreasonable positions, etc.  I had a trial last year where the husband refused to negotiate, at ll.  He sought alimony, without basis, and made us try every single issue, including the exemption of clearly premarital property, the exemption of clearly post complaint property, even the exemption of the engagement ring.  In that case, even though my client earned far more than her husband, she was awarded a generous counsel fees. 

Again, she had no choice but to try the case.  Unfortunately, that appears to be the case for my current client if the choice is made by the client to fight for what she is entitled to.

Trials are often won or lost based upon credibility determinations.  More often than not, cases are replete with he said/she said situations, or real differences of opinion as to almost every issue.  In an interesting unreported Appellate Decision released on July 15, 2009, credibility was critical.  As the author of this post was the successful trial and appellate attorney in this matter, I am fully familiar with the facts. 

Aside from being important at trial, credibility determinations cannot be overturned on appeal.  On top of that, as long as the Appellate Division finds that there was sufficient credible evidence in the record, the trial court opinion will be upheld.

In this case, the issues were more than he said she said. In the six months between when the wife said that she wanted to get divorced and the filing of the divorce complaint, the husband’s law practice which had been growing and flourishing each year, suddenly became less profitable, if he was to be believed.  He was not believed.  Both the wife’s testimony as well as her forensic accounting expert’s testimony were deemed more credible. 

It was not just the wife’s word that was so compelling.  Rather, at trial we produced thousands of pages of exhibits that supported the issues we presented.  It was not surprising, on appeal, that defendant argued that there was no evidence in the record – but to do so, he had to fail to comply with the rules and submit the trial evidence.  The wife was forced to remedy this. 

On almost every issue at trial, the husband was deemed not credible. This included findings of discrepancies in his Case Information Statement, violation of Court Orders, lack of credibility regarding the marital standard of living and his income, etc.  The Appellate Division’s assessment of the husband was perhaps even more severe:

Finally, in an amended notice of appeal, defendant seeks review of an order entered on September 24, 2007 denying his motion for recusal of the trial judge. Defendant claims that "the trial [judge] made several inappropriate credibility determinations about defendant and his experts to justify rejecting the testimony and objective evidence presented at trial." After reviewing the record, we find no evidence of bias
against defendant. The court made credibility determinations based upon the evidence presented and defendant’s demeanor and testimony. We give great deference to the trial court’s credibility findings and will not upset them unless they are patently contrary to the credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999).

Moreover, if this had been a jury trial, the court could have given the "False in One, False in All" charge, instructing the jury that if it found that defendant had testified untruthfully in one instance, it could find his entire testimony to be untruthful. Since numerous discrepancies in defendant’s financial information were brought to light during trial, the "False in One, False in All" principle applies.

The ramifications of not being truthful are rarely so clear.  We are obviously proud of the result obtained for our client in this case.

Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm’s Pennsylvania Family Law blog, wrote an excellent post on that blog entitled, "Sizing Up the Litigation:  An Examination of Cost vs. Benefit.  To read the post, click here.

The point of the post is that a litigant should choose their battles wisely, recognizing the potential costs. I often tell clients that it does not make sense to spend $2 to get $1, or for that matter, to spend $1 to get $1.  As Mark states, there are times to fight over principle.  A litigant needs to weigh when it makes sense to fight over principle, or choose to fight another day over something more important financially.

The end of the Court year in  New Jersey in June 30th.  With that will come pressure, perhaps unnatural pressure, but pressure nontheless to resolve cases. 

While the fact that there are judicial shortages in many counties may provide relief, I suspect that it will do little to quell this rite of Spring.

As the legal system is very statistically driven, a court’s performance is often measured in how many cases they clear, and more particularly, whether there is backlog (i.e. is the case too old for the case type that it is).  My undertanding is that a divorce case in in back log when it is over 1 year old. 

One tool that Court’s use to clear more cases this time of year is to hold "blitz weeks."  During a blitz week, the oldest cases in a county are scheduled for trial and all of the family part judges clear their calendars to allegedly try cases during these weeks.  Whether or not cases actually get tried during blitz week is another story.  However, the threat of trial, along with the court’s active assistance in trying to settle cases often clears many cases from the docket.

Also, in the cases that are naturally scheduled for trial during this time of year, adjournments become more difficult.  Regularly, multiple trials are scheduled for a judge for the same day.  The reason for this is that most cases settle or get adjourned so if only one case were scheduled, a judge could have open court time.  Often you will learn where you are on the list in terms of which is the oldest case and can get a sense as to whether the trial date is a real one.  In fact, usually the first and second trial date are not "real" dates, but rather dates when a court will try to get you to settle. 

That said, at this time of year, if you want to try to adjourn these dates, it becomes more difficult, with the hope that you will settle.  There is an old joke that goes, what is the easiest way to get an adjournment, tell the court you are ready for trial.  In reality, it works in the reverse.  That is, when you seek an adjourment of a trial date, courts often deny this expecting that it will help force a settlement. 

In my practice, if I appear for a trial date, I am prepared for trial.  I learned early on that the best way to be prepared to settle a case it to be prepared to try a case.  That way you are negotiating from a position of strength and very often, the other side really isn’t prepared for trial  – making favorable settlement terms more likely.

In any event, if your case is getting close to a year old, expect pressure from the Court to get it done before June 30th.

Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm’s Pennsylvania Family Law blog, wrote an interesting post on that blog entitled Mediate, Arbitrate, Negotiate:  What’s a Client to Do?" To read the post, click here.

Mark’s blog entry goes through the options of alternate dispute resolution.  Like Pennsylvania, in New Jersey, there is very limited review of an arbitrator’s decision.  However, parties can agree to an appeals type process.  However, that appeal would be to a trial court, not the Appellate Division as we recently learned in the reported case of Hoogoboom.  Moreover, in New Jersey, you can mediate, but you cannot arbitrate custody and parenting time disputes.

Also, in my experience, arbitrations are very much like trials with the arbitrator serving as the judge.  While you can agree to relax the rules of evidence and the arbitrator, under the arbitration act can choose to relax the rules, most often unless people agree to proceed in some kind of summary format, an arbitration proceeds in the same manner as a trial in a Court would.

That said, the benefits of an arbitration noted in Mark’s post are the same.

I just completed a 10 or so day trial (really a binding arbitration).  Why did it take so long?  Were there complicated valuation issues? No.  Complicated alimony issues? No.  Custody issues?  No – custody and parenting time were already settled. 

The answer in large part was one party’s bad faith and need to extract a pound of flesh.  He did not get his pound of flesh and while we await the decision, I doubt he will receive satisfaction there either?

Some examples of the nonsense.  The case started in 2006 when real estate was at its height and the marital home was appraised by a joint appraiser in early 2007.  The case lingered and trial did not start until the fall 2009.  Despite the fact that the law is clear that homes are valued at the date of distribution, the husband opposed a new appraisal.  Why – as every knows, real estate values were going down.  Since he knew that the wife wanted to keep the house, he was trying to use this to his advantage.  Due to the delays, the wife had to get an updated appraisal in January 2008 when the was originally supposed to occur.  She had to get another one in August 2008 before the trial started.  The husband held out and opposed using the joint appraiser, costing the parties more money for experts and then wasting a day trying the issue of the value of the home.

 

Continue Reading Trial Is An Expensive Way To Get Your Pound of Flesh

I was supposed to start a trial yesterday,but, as often happens, with the judge’s assistance, settlement negotiations began.  In fact, in reality, the case probably settled about 3 times yesterday.  However, each time we tried to wrap it up, the wife changed the terms, seeking more and more.  My client, who believed that that he would probably do better at trial, made a business decision to agree to the changes, in consideration for the costs of trial, risks of loss, etc.  That was his call as we were ready  to start the trial and were thoroughly prepared.

On the other hand, on top of changing her terms over and over again, the wife became abusive to her attorney who was trying to counsel her that the terms of the proposed deal(s) were probably far better than she would do at trial.  On top of that, she had major exposure to pay the husband’s legal fees based on her conduct during the pendency of the matter (multiple violation of court orders and discovery abuses). 

That gets me to the point of this post.  Opposing counsel was in an impossible position.  He knew that the deal was too good for his client but could not force her to settle.  She is essentially forcing or demanding a trial, which counsel believes is not in her best interests.  His problem became compounded when she became abusive.

At the end of the day, the decision to settle is hers.  The refusal to settle may cost her tens of thousands of dollars.  The attorney fulfilled his obligation and told her.  It may ultimately be an expensive lesson learned.