The Secret that Non-Collaborative Lawyers Don’t Want You to Know (Part Two)

The second part of the secret is that out of one hundred divorce cases that are filed, only about ten will go all the way to a final trial. The rest? They’ll settle out or get dismissed, often after huge amounts of money have been spent for lawyers with the result that a marital estate has been pillaged and a mother and father have had their co-parenting relationship irretrievably damaged.

The beginning of a divorce lawsuit should not point towards a final trial. Why? Because most divorce cases never get there but since we lawyers don’t have crystal balls we don’t know which will and which won’t.

But, we lawyers have a choice and it’s this – from Day One, we can treat 100% of our cases the way 90% will turn out. Or, we can choose to treat 100% of our cases the way 10% will turn out. And you can bet your bottom dollar that our choices make a huge difference to you, the moms and dads, husbands and wives, who are in our divorce cases.

Collaborative divorce – from the brilliant mind of Stu Webb – does exactly what Stephen Covey says to do in step two. Collaborative divorce begins by imagining a dialogue between the two parties which is confidential, respectful and information based. And which begins and ends with the shared values and top down goals of the parties themselves – not their lawyers or the legal system nor anyone or anything else.

Sometimes, when we get very oppositional clients in our office we gently move them out of their comfort zone by asking this question: We lawyers have a special name for clients such as yourself – can you guess what it is?

In thirty years of asking that question, only about two or three clients have been able to give me the answer. And the answer is – if you’re an oppositional, conflicted party in a divorce lawsuit – then you’re an annuity and you do NOT want to be your lawyer’s annuity.

Or, as my partner puts it – put your own kids through college, not your lawyer’s kids.

You don’t want to be a lawyer’s annuity so you don’t want to go to court. A divorce case is not about creating a lawsuit with a life of its own but about solving a problem in your life. There is a saying, attributed to a Greek by the name of Bion of Borysthenes, which I often use with my clients to illustrate the sharp, existential difference between client and lawyer in the context of a lawsuit.

The saying is this – “Small boys throw stones at frogs in sport, but the frogs don’t die in sport they die in earnest.” I tell my people that lawsuits take on a life of their own because, sometimes, lawyers like the intellectual appeal of the issues, or they need the fee, or they just like to fight but, whatever motivates the lawyer to litigate, at the end of it s/he can walk away. Lawyers are like the boys who throw the stones.

My clients, any clients on the other hand, are the frogs who get badly injured. It’s not sport to you or to them.

So, to those of you who may one day be in a divorce, I say this: begin with the end in mind. Collaborative is the best way to do that but, for goodness’ sake, whatever you do don’t become a lawyer’s annuity. Don’t be a frog that gets rocks thrown at you. And, please, don’t throw away your 90% chance of settlement by allowing your advocate to immediately and from Day One push your case into the 10% litigated category.