106 DIVorCe wItH DeCenCY
things off by talking about trial may be unlikely to spend much
time trying to negotiate an out-of-court settlement. Unless your
case really does require “trial by combat,” then you’ve got to be
careful about backing into it by accident.
Dividing by two. Conscientious lawyers will generally pursue
a settlement-minded approach. I often joke: “Just how smart
does a divorce lawyer really have to be to be able to divide by
two?” After all, this really is the crux of most property settle-
ments. Most of us who are experienced divorce lawyers have been
appearing regularly for years before the various family court
judges. We’ve learned what they are going to decide on almost
any given issue. There are literally thousands of divorces moving
through the courts nowadays, and the judges have been forced
to come up with some pretty standardized resolutions for vari-
ous issues.
For a good lawyer who is experienced in this field, there often
should not be all that much question about what the end result
is going to be. So if your lawyer can accurately predict that result
at the outset, you can then head straight toward that resolution
early on by putting that settlement proposal on the table right at
the very beginning of the case. By utilizing this sort of “principled
approach” to making the fairest possible opening settlement offer
early on in the case, you can hopefully avoid running up the high
attorney’s fees that otherwise inevitably accompany the normal
channels of litigation.
Churners can be costly. Beware: there are many lawyers who
tend to “churn” cases in order to deliberately exacerbate and pro-
long them. Conversely, there are some lawyers (probably fewer,
however) who look for the quickest, cheapest, and friendliest way
possible to resolve the situation. Your job as a smart client is to
learn to tell the difference.
Oddly enough, the churners have a built-in rationalization for
their seemingly perverse approach to overworking and overbill-
ing their cases. Many will claim that it is an outgrowth of the
attorney’s code of ethics that requires them as advocates to “zeal-
ously represent” their clients in an adversarial fashion. They may
be less quick to point out the fact that churned cases generate
vastly higher fees for the lawyers.