Empathize without Agreeing
At Tony’s request, Jake tells the story of his marriage and its breakdown. He expresses anger at Samantha and some guilt for his own contribution to what he sees as a failure. Tony works hard to show Jake that he understands Jake’s story—without signaling agreement with Jake’s perceptions and beliefs. This is a fine line to walk. Jake may want Tony to agree with him that Samantha has treated Jake unfairly or that she deserves more blame. Tony doesn’t need to agree or disagree. Instead, he seeks to understand Jake and his perspective.
Explain the Legal Process
Before completing the story, Jake says, “Enough of all this history. Tell me how the divorce process works. What can I expect? Will I have to go to court? How long will this whole business take? How much is it going to cost? What do I do if Samantha is unreasonable?”
Although at this stage Tony knows comparatively little about Jake’s legal case, rather than insisting that Jake first provide him with more of the legally relevant facts, Tony decides that he should outline briefly the basics of the legal process. In doing so, he begins to develop a theme that he will be sounding throughout their meeting: the opportunities of negotiating an agreement that better serves the client than a litigated outcome.
TONY: Let me give you a quick overview of how the divorce process works. As we go along, I’ll need to learn more details about your family and financial circumstances. But I want to try to make the process of getting a legal divorce a little less mysterious than it might feel right now.
This is a no-fault state. That means either spouse can end a marriage without any showing of fault or blame. There are really four big issues that must be resolved in divorces where children are involved: First, who will take care of the kids on a day-to-day basis? In other words, what will be the arrangements for custody and visitation? Second, what will be the ongoing economic obligations of each parent for the kids while they are growing up? This relates to child support. Third, how will the two of you divide any property either of you own and any debts that either of you have? And fourth, what ongoing obligations will either of you have to help support your former spouse? This is, of course, alimony.
We’ll talk a lot more about each of these, and I can fill you in on the relevant law. But the important thing for you to understand is that most divorcing couples resolve all of these issues through negotiation—not litigation. Sometimes the divorcing spouses themselves do the negotiating, perhaps after each has consulted with an attorney. Often the negotiations are done by counsel, who remain in close touch with their respective clients. Either way, so long as a negotiated settlement is acceptable to you and Samantha, a court will almost always approve your agreement. The law doesn’t require any particular outcome. This means that you and Samantha have a lot of flexibility to design an agreement that really meets your interests—and Samantha’s interests.
Throughout our negotiations, both Samantha’s lawyer and I will be keeping our eye on what we think a court would likely do if the two of you don’t agree. In other words, if there is an issue that cannot be resolved through negotiations, there will be litigation and a court will decide. So as we negotiate with Samantha and her lawyer, we’ll want to compare what’s being offered with what I would predict a court would award if we litigate. And Samantha’s lawyer will be doing the same.
Understand the Client’s Interests
Tony and Jake will spend a good deal of time talking about Jake’s interests, needs, resources, and capabilities. To begin this process, Tony asks: “In looking ahead, what are the things that are most important to you?” Jake indicates that he’s most concerned about custody, and that most of all he wants primary custody of his two boys. Tony probes beneath this position by asking, “Why? Why do you want the kids to live primarily with you? What’s your concern here?” Jake explains that he’s worried that without custody he’ll lose his relationship with his children. “They’ll spend all of their time with Samantha, and I may never see them. She might turn the kids against me.”
Tony reframes Jake’s response to reflect what he thinks might be his underlying interest. “You want to play an active role in the children’s lives as your sons grow up. So your interest is in maintaining your strong relationship with your children, and in spending as much time as possible with them. Is that right?” “Yes,” Jake says. “Seeing my kids for a day every other weekend just wouldn’t be enough. I’d lose touch. I’d feel that I didn’t know them anymore.”
Weigh Legal Risks and Opportunities
Jake and Tony continue talking about custody, and Tony explains the options that are available in their state.
JAKE: What do you think a court would do about the kids? If I ask for custody, what are my chances?
TONY: Well, it’s important to know that we’ll be dealing with two kinds of custody—physical custody and legal custody. Physical means who will be the primary caretaker of the children. Legal custody relates not to where the children live but to decisions about the children’s education, religion, and medical treatment. In this state, even when one spouse has sole physical custody, the parents commonly share joint legal custody. What you’re asking about is physical custody. You want the kids to live with you.
JAKE: Right. If I object to Samantha’s petition for sole custody, will the court let the kids live with me? Who would win?
Tony asks Jake to say more about how he and Samantha shared child-rearing responsibilities during their marriage and whom the children have lived with during their separation. He learns that Samantha had spent more time parenting, although Jake had been a reasonably involved father. Jake also reports that the children seem well-adjusted and that Samantha is a good mother.
TONY: If you and Samantha both sought sole physical custody, the legal standard is what’s in the best interests of the child. A court typically tries to assess who the primary caretaker was, who spent more time with the kids, who took them to the doctor, who bought their clothes, that sort of thing. From what you’ve told me, Samantha could probably establish that she, not you, was the primary parent while you lived together. In these circumstances, Samantha would have the stronger case, unless there is evidence that the children would be at risk if they remained with her. That doesn’t seem likely.
JAKE: How about joint physical custody, where the kids spend about half the time with me?
TONY: That could be a real option here. If you and Samantha agreed to that, I’m confident a court would approve it.
JAKE: What if she insisted on sole physical custody and I asked a court to award joint physical custody? Who would win?
TONY: I’m not entirely sure. Joint physical custody requires a great deal of coordination and cooperation between parents, because the kids are moving back and forth. If parents aren’t able to agree to it, many judges are very reluctant to impose it.
Jake is disappointed, but Tony reminds him that his most fundamental interest is in maintaining a substantial relationship with the children. This could be achieved either through an agreement for joint physical custody or through visitation that provided substantial regular contact with the kids, even if Samantha has sole physical custody.
JAKE: Well, can you be sure that I will have the opportunity of regular contact? What sort of visitation would I get?
TONY: Even if the children live with Samantha, you are entitled to reasonable visitation. You and Samantha can negotiate an agreement concerning visitation—or a parenting schedule—that works well for you.
JAKE: What if we don’t agree? What would a court do?
TONY: Well, there are certain informal norms or rules of thumb that govern in the local courts. If a court were to decide the visitation issue, given the children’s ages, you could expect to have the kids no less than every other weekend, including one overnight, and once or twice during the week for an afternoon or evening.
In negotiations with Samantha, I’ll obviously stress the importance to you of having as much time as poss
ible with the kids. Before I meet with Samantha’s lawyer, you and I will need to discuss what we really ought to ask for. But let’s not do that yet, until we talk more about your other concerns and you tell me more about what Samantha is likely to care about.
Understand the Other Side’s Interests
Tony also tries to learn, and help Jake better understand, how Samantha sees the situation.
TONY: Let’s talk about Samantha. What is she likely to want in this divorce? What is she going to be concerned about?
JAKE: I think she really wants custody, but I also think she would like me to stay very involved with the children. When she asked that we separate, she told me that she thought I was a good father. During the last six months the kids have spent a lot of time with me—about two overnights a week. She’ll also want me to keep supporting her, that’s for sure. I’ve got an MBA, and she never went to grad school. She really resents that. And she thinks that because I make more money than she does I should pay all the bills.
TONY: So it sounds like the economic issues will be her priority and that she’s likely to be focused on your earning power. Do you think she’ll want support for only a short period of time, or for the long term? I see that her petition asks for support with no termination date. What are her longer-term career plans?
JAKE: I’m not sure what Samantha’s long-range plans are. Maybe she’ll want to start working full time so that she’s not tied to my support. She has talked about an MBA. I know she’ll be nervous about the economics of providing for herself and the children.
Discuss Distributive Issues and Value-Creating Opportunities
Jake suddenly gets somewhat frustrated with the conversation.
JAKE: Why do we really care so much about what her interests are? She wants more money, I want to give her less. Isn’t it that simple?
TONY: Maybe, maybe not. Like you, she probably has a number of different interests. And there may be trade-offs here. Certain things she may care about a lot that aren’t a real priority for you, and vice versa. To prepare for the negotiation, we need to think through what her interests and priorities are likely to be. For example, you’ve said she might want to go back for an MBA. If that’s true, we might be able to work out a creative agreement that lets you spend a lot of time with the kids. And if her earning capacity were to increase, that could change the economics substantially.
Tony is trying to help Jake understand the possibility of value-creating opportunities. But Tony doesn’t duck the distributive dimension. Instead, he works with Jake to determine what is at stake in the negotiation for his client and how Jake can imagine resolving those distributive issues with the other side. He also explains the norms that a court would use if the parties cannot agree.
TONY: You’ve told me that you don’t want to get saddled with a lot of alimony, especially over the long run.
JAKE: She’s young, she works. I don’t think she should get anything out of what I earn from here on out. The kids, sure. I’m willing to be generous about child support. But Samantha should take care of herself.
TONY: OK, so you believe she deserves little or no alimony. Samantha may disagree. Her petition asked for alimony to continue indefinitely. If it got to that, it’s likely a court would make you pay alimony for about eight years—the local norm is roughly the length of time you’ve been married. Alimony with no end date is very unlikely. But Samantha and her lawyer will probably reject any settlement with absolutely no alimony unless you were prepared to make up the difference with a large property settlement, or somewhere else.
JAKE: What do you mean?
TONY: Property, alimony, and child support, if a court has to decide, are treated as distinct issues. But each of these elements is essentially about money, and through negotiation I find we can often discover packages that vary these elements in ways that are different from what a court would do but make both parties better off. Often parties have different preferences about timing. Depending on Samantha’s plans, for example, she might be willing to accept less property if the alimony payments were larger. Or she might prefer to have a deal that is front-end loaded, where alimony ended rather early but payments were higher for the time she was in school. We can also put together packages that make you both better off because of the tax treatment.
Jake again indicates that he prefers paying more in child support and avoiding alimony. Tony explains that such an arrangement might be possible, but the opposite might have tax benefits.
TONY: Any alimony you pay is deductible from your income and added to Samantha’s income. For alimony, your tax saving is greater than the tax cost to Samantha. Similarly, whatever we do with alimony, it would make sense to allocate the tax exemptions for the children to you, because once again the dollar value to you is greater than the cost to Samantha. It would be premature for us to worry too much about these details, but I’m mentioning them as examples of the kinds of considerations we’ll want to take into account in shaping a deal that benefits you.
Discuss the Professional Relationship
So far Tony has focused on Jake’s story, the parties’ interests, value-creating options, and the law. He also wants to discuss the kind of professional relationship he hopes to have with Jake.
TONY: You probably have a sense already of my orientation toward divorce practice. My preferred approach is to work with the lawyer on the other side to negotiate a resolution that serves your interests well, and that keeps the costs—both emotional and financial—of securing a divorce to a minimum. I don’t engage in scorched-earth tactics. I’m going to work hard to protect you, and I’m going to do my best to keep this out of court.
JAKE: I mean—this all sounds good, of course, but what are we talking about here? If things get ugly, I want to know that you’ll be able to fight for me.
TONY: I’ve litigated a half-dozen divorce cases over the last four years, and the divorce lawyers in this town know I’m no pushover; I know my way around the courtroom. But my strong preference is to avoid litigation if possible. We should be able to fashion an agreement that serves your interests far better than a courtroom battle. Divorce is plenty painful as it is.
PROFESSIONAL BOUNDARIES
A lawyer must also understand, and help his client understand, what the lawyer’s personal, ethical, or professional boundaries are. What will and won’t the lawyer do for the client, and why? Is the client comfortable with those limits, and, if not, does the client need to seek other representation before the relationship proceeds? Often lawyers and clients avoid these issues—particularly if they relate to the lawyer’s financial or professional interests—and treat them as undiscussable. If not made explicit, however, these important issues can cause serious problems for the lawyer-client relationship later.
Of course, sometimes lawyers are wary of bringing up their own boundaries early on for fear of alienating a potential client. They’d rather wait and talk about these issues on an as-needed basis. There is no easy answer to how one should approach this decision. If early in their relationship Tony says to Jake, “I want to be clear that I won’t go for treating the kids as a bargaining chip, and I don’t work with clients who conceal assets or intentionally waste assets,” he could turn Jake off. “What kind of clients does this guy normally deal with?” Jake might think. “And who does he think I am?” At the same time, if Tony doesn’t raise these concerns—tactfully—doing so later could be very difficult. Tony decides to say the following: “Anything we talk about I will hold in the strictest confidence. But I have to caution you about one thing. People going through divorce are sometimes tempted to hide assets from their spouse. I just won’t be a party to that. The law of this state clearly provides that you are required to disclose fully your financial resources as part of the divorce process.” Setting clear limits early lets Jake make an informed choice about whether to hire Tony or look elsewhere.
FEES
Lawyers and clients should also negotiate about reasonable compensa
tion and monitoring arrangements so that the client feels satisfied that the lawyer’s independent incentives will not lead him to act disloyally. Addressing these issues explicitly at the start of the lawyer-client relationship can help assuage a client’s fears that his attorney is beyond his control and not always working in his best interests.
TONY: I’m sure you’re interested in understanding how I charge for my services, and what the total costs are likely to be.
JAKE: I must admit, I was wondering when we’d talk about this.
TONY: Here’s how I work. I charge $175 an hour, plus out-of-pocket expenses. These charges are initially paid through a retainer of $3,500. If the retainer is exhausted, I send you monthly bills for any additional charges. I’ll do everything in my power to keep costs down by negotiating a good settlement agreement as efficiently as possible. Your total legal costs will probably run between $3,500 and $7,500, depending on how much time must be spent on the negotiations. But I want to be very clear—this is not entirely within my control or your control. It also depends on the other side. If negotiations are very protracted, it will cost more. And of course if we end up having to litigate, the costs can explode. A custody fight can easily cost $20,000 to $25,000, or more.
JAKE: Your hourly rate seems reasonable, but I’ve always wondered about one thing: How does a client ever know what a lawyer is spending his time on?
TONY: Before I spend any significant time on something, I’ll let you know first. And I’ll send you a detailed statement every month, which will describe what I’ve worked on. If you ever have any questions, please raise them with me. I really won’t be insulted.
Beyond Winning Page 22