Only a skilled lawyer knows the art of divorce settlement negotiations that maximizes the client’s position without making the opponent feel defeated.
Gilbert B. Feibleman and Paul Saucy, Family Lawyers
Any fool can take a divorce case to trial. Only a skilled lawyer can negotiate a settlement which maximizes the client’s position without making the opponent feel taken advantage of. Those negotiating skills are becoming more critical as we enter an era where matrimonial disputes are increasingly being resolved in non-courtroom forums. This article is intended to present a conceptual system which allows practitioners to focus their existing skills to produce more positive settlements.
The Importance Of Understanding The Psychology Of Divorce
The first step towards achieving a positive settlement is to recognize that a divorce negotiation is unlike any other legal negotiation. Car accident negotiations, for example, are one dimensional because the accident client wants only one thing… money. By contrast, divorce cases often involve a multitude of interrelated issues, all of which are colored by the intensity of the emotions of the parties, their families and sometimes even the lawyers. As a result, divorce negotiations are complex, multi-leveled and require a high degree of understanding the psychological nuances which are in play. Emotion-wrought disputes may arise over seemingly trivial matters, such as the division of furniture and wedding gifts, or even the custody of pets. It is not uncommon for the lawyer to accomplish the client’s objective in one area only to destroy his bargaining position in another. Negotiations can also break down because there is no middle ground for settling some emotion-driven assets that the clients perceive as indivisible, such as how does a lawyer divide a beloved pet or a piece of sentimental property?
The lawyer who can understand each case’s emotional aspects, its unique issues, the parties, and how they all interrelate can significantly improve settlement results. The successful divorce lawyer must know each of the following before starting to negotiate a case:
- The law and the facts of her case,
- The client’s goals,
- The opposing lawyer, and
- The judge.
Know the Law, Your Client and Your Client’s Case
A significant step towards a successful settlement is to develop a working knowledge of the law which applies to your situation. There is no quicker way to be taken advantage of or to create a malpractice opportunity than to violate this cardinal rule. Any good divorce lawyer must have a working knowledge of a multitude of areas of law such as tax, corporate, partnership, real estate, options, security devices, negotiable instruments, landlord/tenant, and wills and trusts. It is equally critical to have a working knowledge of non-legal areas of study such as finance, insurance, counseling, abuse, addiction and psychology.
While the divorce lawyer needs a working understanding of many interdisciplinary areas of study in order to frame issues, build client confidence, and formulate imaginative solutions, the lawyer also needs to know when to seek the aid of an expert in one of these fields. Being unprepared on critical matters of law will never benefit your client.
The next step is for the divorce lawyer to familiarize herself with the client and the facts of the client’s case. This is accomplished by truly listening to your client. Your wealth of legal knowledge will be wasted unless it can be overlaid and applied to the client’s facts. The lawyer can only get those facts by listening. It is amazing how often practitioners neglect the simple yet important task of listening to what their clients have to say.
It is important to accept that we practice in a people-oriented area of law that requires good listening skills to be able to understand the emotional content of the matters in dispute. You should find another area of law to practice if you do not care about people or you lack the ability to listen to their problems.
Listening must begin with the first interview. Your goal is to ascertain the client’s concerns, help the client set reasonable goals, and then work to resolve those concerns by accomplishing those goals. Have the client put aside that list of questions he brought with him and start the interview by asking the client what went wrong in the marriage. Remember, at one point your client stood before every friend he had and promised “to death do us part”, yet here he is sitting in front of you admitting his failure. Even the most stoic client needs the opportunity to get it off his chest, with no interruption, comment or criticism. Some clients will be eager to talk your ear off, while others will quiz you as to why this information is necessary. Tell the client the truth . . . . you want to know what is on his mind, what is bothering him, what his issues are. You want to know these things to enable you to help him set reasonable goals and resolve problems.
It is amazing how a client’s eyes will light up when given this explanation. “Here is an attorney who cares for something more than the dollar. This is the attorney I want to hire.” This approach is successful, however, only if you mean what you are saying. Bluffing interest will not engage the client’s trust and that trust is necessary to your ability engage the client’s confidence.
The Art of Divorce Settlement Negotiations: Take Charge by Listening
Every good lawyer will tell you that it is critical to the lawyer/client relationship that the lawyer takes charge during the initial consultation. This is true, but too many lawyers believe that “taking charge” means pontificating about her own skills or the great things she plans to do for the client. The successful lawyer takes charge by listening, analyzing and not over-promising. Listening to your client at the inception of your relationship builds the foundation from which you will later guide and direct your client through the negotiation process. Reference what you have learned from the client as you begin to guide and direct also gives the client the opportunity to develop a sense that his lawyer heard and cares about his concerns. One of the great mysteries is why clients hire lawyers with poor legal skills. Perhaps it is because those lawyers are good listeners, and work with what they’ve learned. If you follow these principles it is unlikely you will ever see a client who presented himself with a list of questions at the beginning of the interview leave without having most of his questions answered without ever having had to refer back to the list.
Study after study makes clear that clients look for the lawyer who cares about their case rather than one who is the smartest, the cheapest, etc. So listen and learn. Lawyers are not therapists, but that does not mean that it is not useful to spend part of an hour listening to what is on the client’s mind. Listening to clues you will learn what is needed as you begin to offer guidance, direction or redirection. Remember, too, that you may have heard the same story a hundred times, but this is a first for the client. Avoid the temptation to pigeonhole the client’s problem into the ready-made scenario that you already have the answers for. Each case is unique and the later negotiations will involve complex, intertwining goals and concerns with a healthy spicing of emotion thrown in.
“Listening” does not mean that the lawyer should sit quietly through the entire first interview. Depending on the client, you may want to listen for the first ten to fifteen minutes without anything more than an occasional affirmative response to let the client know that you are attentive. A typical statement in the first fifteen minutes would be: “He said what?” “Was that the first or the second time that happened?” “How did you respond?” It is the affirmation that you are listening which is important, not the answer. Gradually insert yourself into the discussion by guiding the discussions to the areas that will make an actual difference in your case. You should be doing all of the talking by the end of the hour. By then you are using what you have heard to “take charge” with guidance and direction. If you are Perry Mason, he is to be Paul Drake, the investigator. After all, who knows more about the case than the client?
Make Your Client Part of the Team
Make sure to give the client a few specific instructions (homework assignments) during the first interview so that he leaves your office with a task and direction. The best way to assure the client that you understand the law, that you care about him, and have the skills to do the job is to make the client part of the team which is being formed to handle his divorce. Have the client get a credit report on himself (even though you can easily get one yourself) because it is something the client will feel good about having accomplished. Distribute the boilerplate checklist of records that we each have and tell the client why it is important to start gathering the documents for you and the other side. Suggest a specific book that he might read to educate himself about the process he will soon be embroiled in.1 Work is a constructive therapy so use it to your client’s advantage. Remember that you are a lawyer and not a puppet. Promise only that you will do your best work for the client, nothing more and nothing less. The distinction is critical because it highlights your role as an advisor. Your job is to meld the facts and the law together in the most advantageous way for the client but you cannot remake your client’s facts. The best lawyer is the one who can give the client the bad news in such a way that it is accepted, albeit reluctantly, and then moves on to the next step in the process. Most practitioners never promise the client any specific result other than that you will do your best for the client.
(1 The Divorce Handbook –Your Basic Guide to Divorce by James T. Freidman is an excellent resource for this purpose. It presents the information in a question and answer format which allows the client to zero in on the information he wants without having to muddle through extraneous and perhaps confusing details. Random House. 1999.)
You will never get all of the information you need to understand and settle the case during the first interview, so do not try. This interview merely sets the tone for the relationship as you want (and expect) it to be. It will take several interviews and other information gathering techniques to fully grasp all the details and nuances of the case, and to develop your relationship with the client. Following the theme that this is “your divorce and that I expect and need your help with it,” you should send the client the next homework assignment soon after being hired. You want a written history of the client’s marriage. This means you need to hear about the good, the bad and the ugly parts. This also a cathartic exercise for the client that can provide insights not drawn from your meetings. A critical part of his “history” is a requirement that the client write out his objectives in order of priority. This will give you a record of the client’s own view of the importance of each issue, and will provide a checklist in developing a plan to achieve the important goals. This list can also be used by you and the client to determine what is and is not nonnegotiable.
The Art of Divorce Settlement Negotiations: Building Confidence and Rapport
In addition to being information-gathering opportunities, each subsequent interview is an opportunity for you to build confidence and rapport with your client which will become so important when the actual settlement process begins. Focus on getting the client’s information, including an understanding of what motivates the client’s spouse. As you begin to understand what your client’s spouse wants you can speculate as to what concessions she would make to attain her own goals. You will gain a greater understanding of the psychological and emotional pressures affecting all members of the family unit each time you t talk to your client. In doing so, you will gain the insight that will become invaluable once everyone is sitting at the conference table.
As you progress through this article you will note that it describes settlement techniques that work only with a client with whom you have built a rapport, somebody you like. It will not work with a client who cannot be dissuaded from unrealistic expectations.
Unrealistic expectations, anger, a need to punish, not understanding the terms of the settlement, perceptions of coercion, or a tendency toward buyer’s remorse all characterize the unhappy client which will increase the probability of a malpractice claim or community bad-mouthing of you and your practice.
Being the client’s advisor is a reference to the law, not to the client’s personal life. Do not become emotionally ensnared in the client’s troubles because it is your detached objectivity that allows you to give good legal advice. This control is lost once the client becomes a friend, personal confidant, a buddy. In addition, there are those clients who have an unreasonable or irrational perspective on their case and your role in it. Discharge such clients immediately or the set the case for trial without any further attempt to negotiate a settlement. Such clients will never be happy with the result you obtain, regardless of how favorable that result actually is. Either let some other lawyer disappoint him, or let the judge be the one who shines the stark light of reality into his darkened room.
Providing guidance and direction while maintaining control means that you must always tell your client what he needs to hear rather than what he wants to hear. Help the client develop realistic objectives by being direct, matter of fact, and honest. The more knowledgeable the client is made about the law and the process, the easier it will be to settle. The bottom line is always this: terminate the lawyer/client relationship if you cringe at the thought of picking up the client’s file. You will not settle the case, or if you do, the client will not like the result regardless of how favorable it actually was. No lawyer needs the money that badly.
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Gilbert B. Feibleman is a Fellow of the American Academy of Matrimonial Lawyers and Past-chair of the Oregon Chapter. He has been acknowledged by his peers in “The Best Lawyers in America” since 2001. He is also the past chair of the Oregon State Bar Family and Juvenile Law Section and serves on the board of the Oregon Academy of Divorce Practitioners. He is a frequent speaker and author on matters of divorce and ethics. www.feiblemancase.com
Paul Saucy is a Fellow of the American Academy of Matrimonial Lawyers and the past chair of the Oregon State Bar Family and Juvenile Law Section. He is a frequent speaker and author on matters of divorce. www.youratty.com.