Family Law Litigation

By Matthew J. Long on Jun 04, 2014 at 10:46 AM in Santa Barbara Divorce Articles

Family Law Litigation

Although family law litigation does not necessarily result in a court hearing (in fact most Alitigated@ cases end up settling without going to trial), litigation@ is characterized by the impending threat of a court hearing or trial. If your spouse is unwilling to engage in mediation or collaborative practice, you may have no choice but to utilize the litigation process. The focus of a family law litigator should be on reasoned and professional advocacy, continually providing client with informed choices and always preparing for the Aend game@ - a positive outcome at trial (if necessary).

i. AReasoned and Professional Advocacy.@ Your position can be forcefully articulated without engaging in name calling, exaggeration, or unreasonable threats. Letters should never be written for the sole purpose of Aventing.@ That is a waste of both your time and money. Letters should be focused on the goal of convincing your spouse and his or her attorney that settlement will bring them a better result than trial. Declarations should not be written for the purpose of character assassination (which rarely works anyway), but for the purpose of advancing the client=s theory of the case - a theory calculated achieving the desired result.

ii. AProviding Informed Choices.@ A lawyer should not (normally) be telling his or her client what we will do. Rather, the lawyer, within the boundaries of ethics and professionalism, should be providing the client with informed choices. Litigation, as with everything else, carries with it risks that must be evaluated. The lawyer must provide the client with information with which to reasonably evaluate the risks of trial and risks of settlement. It is the client’s job to determine what level of risk they can tolerate. Unfortunately, there are cases in which the opposing side takes a settlement approach which makes the risks of trial the more attractive path.

iii. AFocusing on the End Game.@ It is important to remain focused on the Aend game,@ which is a positive result either through trial or settlement. The most effective way of bringing about an appropriate result through settlement is to assemble the evidence necessary to take the matter to trial. Your efforts to obtain the appropriate evidence will make it clear to your spouse and his or her attorney that you are serious. It can often be tempting in family law cases to be distracted by the inappropriate letters that are sometimes written, or the unreasonable positions that are taken. You may have the urge to demonstrate that you are Aright,@ or to demonstrate that your opinion of your former spouse has now been vindicated. While this urge is understandable, the wise course of action is to remain focused on achieving an appropriate resolution of the case.