Читать книгу The Separation Guide - David R. Greig - Страница 6

I was quite a distance into my career before I realized that the concept of a “good” separation or divorce was realistic.

The event unveiled itself rather innocuously, on a rainy Tuesday morning in November. I had started early that morning, as I usually do, preparing for appointments, upcoming court cases, and answering electronic and snail mail. At about 8:00 a.m., my first appointment arrived. The client, a pleasant looking, middle-aged woman with a small briefcase and a quiet demeanor introduced herself and came to sit in my office. I’ll call her “Mrs. G.”

She described her circumstances calmly and carefully, and explained that she had separated a year earlier. She told me about her two children, her financial situation, her husband’s career, and her aspirations for the future. Mrs. G then described how she wanted a serious and aggressive lawyer who could “handle” her husband — someone who wouldn’t be afraid to stand up to him. The client told me that her husband was a financial bully, had several good lawyers and accountants at his disposal, and she warned me that he could put up a good fight. In essence, she wanted me to “undress” him and in the process obtain a favorable order or settlement. Her objectives were clear — she was sure that spousal support was her entitlement and she wanted more than half the family assets. She then flattered me with a comment about how she had heard good things about me, and turned the discussion to fees, the time line for progress, and other matters. Throughout, she was clear, concise, and businesslike.

I kept notes, asked questions, and gave some advice to Mrs. G. At the end of the interview (about 70 minutes later), she gave me a check for the retainer and left the office apparently pleased. I dictated a memo about the facts, organized the file materials and the documents she’d left, and then asked my legal assistant to open a file. My final instructions were marked in the right-hand margin at the bottom of the fifth page, which said, “Litigation matter — client wants divorce, custody, and spousal support, plus 75 percent of the assets.” I then went on with the rest of my morning, and dealt with a variety of other issues.

After lunch, I had another appointment with a second potential female client. Again, I introduced myself in the lobby and escorted the lady to my office. This client looked and sounded somewhat like Mrs. G. As her story was presented, I was surprised to find that, in fact, some of the basic family information was similar to the story Mrs. G had told. Here, there were also two kids, an ambitious and well-off husband, and concerns about custody, money, and the future. At the outset of the interview, I knew the new client’s first name only, and used it judiciously, but when it came time to get the critical and essential information necessary to open the file, I asked for her surname. As she pronounced it and then spelled it out for me, I was astonished to find that there was but one letter which distinguished her name from Mrs. G. Not only were the facts and stories strikingly similar, they had almost the same name! What a coincidence!

My second client was Mrs. B, and she too (like Mrs. G) needed a lawyer. She and her husband had been negotiating for some time, but they were apparently at a stalemate. Although Mrs. B had hoped for an amicable resolve, the battle lines appeared to be drawn. She too was resigned to litigation and hoped I could help.

Mrs. B did not, however, tell me that she wanted litigation. Instead, she asked if there was anything I could do — “even a last-ditch settlement offer” — that might result in a friendly resolution. She was quite sure that her husband would not budge or reconsider the offers, but she asked me to try one more time notwithstanding. I could tell she was tired and anxious and felt weakened, but still there was hope.

I told her I would do my best, and she seemed somewhat reassured. Mrs. B left me a retainer, and I prepared to open the file and provide instructions to staff. This time, however, the final instructions at the bottom of page five said, “Client convinced it’s hopeless but wants to try last-ditch settlement offer as per instructions above. Try letter to husband before and give it one last shot.”

After the Mrs. B file had been opened, I drafted that settlement letter to the husband. I did so in nonconfrontational language, and described some concessions and options that the client had explained to me. I asked the husband to give the proposal careful consideration, particularly since it seemed likely that litigation would follow if we were unable to settle soon. I asked him to talk to other lawyers, and I gave him the names of some colleagues. I expected the letter to achieve nothing, but I gave it a try. It was what the client wanted.

The next day, I prepared the court pleadings and documents necessary to start the lawsuit in the Mrs. G versus Mr. G case. A process server was contacted, and the stage was set.

The Mrs. G case finished about six months ago. In the end, I extracted a judgment that was favorable to the client, and managed to obtain an order for spousal support and a significant reapportionment of family assets. It was a substantial victory — she had been a good witness and we had done a good job. The client was relatively sympathetic and the husband behaved poorly. The evidence had come out perfectly, and we were lucky with the judge who was appointed to the case. Overall, it was a fantastic outcome.

The case had, however, been costly. The legal fees were several tens of thousands of dollars, and the case had occupied a great deal of time. There were several experts, some nastiness in the evidence, and more than a few tears along the way. It had been an exhausting experience for the client, and even though she obtained the desired result, the price paid had been very high indeed. In the end, it had been an emotional bloodbath for the parties, although we had achieved for the client exactly what she wanted.

In my final meeting with Mrs. G, I gave her copies of the order of the court, the documents she’d need, my account, and the various other key aspects of the file materials. She was grateful enough, and paid the bill in full. Still, she seemed oddly unhappy and unsettled. Unable to extract a heartfelt confession from her as to the exact source of the discomfort, I left her and wished her the best, hoping that her world would be better from the service we provided. My job was done. Or so I thought.

Mrs. G returned a few short months later. She had problems with access and support. The checks were late and the ex-husband was not showing up for the access he had fought so hard for and been granted. There were verbal altercations at pick-up and drop-off, and he was using her tardy support payments as a way of “getting back.”

In about four months, the ex-Mrs. G had been back into the office three times, on each occasion asking for help. I called counsel for the ex-husband, until he removed himself from the case. Then I called the husband. He seemed okay on the phone, but always had a long explanation. I wrote letters. He ignored me. Within about five months of the trial, we were back in court again, on a motion about support and access. We got our way on the support issue, but the court reminded us that they could not force Mr. G to use the access, and the judge made ancillary orders about how canceled access would require advance notice. Still, the trouble continued.

I did what I could, but the client’s insatiable appetite for continued litigation was too much, and I told her so. I reminded her that just before trial, we had been close to settlement, and that the husband’s offer was quite fair. I had suggested she take it, even though the support was a little “light.” She had refused, insisting on trial. I had said that a support settlement (paid on time, because it’s agreeable) is better than a court-ordered settlement for a higher amount, paid irregularly and begrudgingly. She didn’t recall that conversation. She demanded to get back in court. I said I thought she needed to consider her options. Shortly thereafter, I received a request from another lawyer for the file to be transferred. Mrs. G had found someone new to fight the good fight. The war continues to rage.

After that file was transferred out, I left the office, heading out for a quiet lunch. I found myself wondering if in fact Mrs. G ever really, truly wanted closure at all. It occurred to me that perhaps what she really wanted was the fight itself — that perhaps she needed a hard-fought battle with the man who had done her wrong, and that she hadn’t wanted it all to end with the judgment. She found ongoing complaints and topics of concern because she really had not finished with Mr. G, and she wanted me to prolong the entire conflict and contact. Maybe it was her way of maintaining some control, or some semblance of a relationship with the man who once loved her and let her down. Then, at that very moment, as these thoughts were swirling around in my mind, I rounded a corner deep in thought and ran almost headlong into Mrs. B.

“Sorry!” I shouted, simultaneously surprised at my own recklessness and the sight of my former client. Mrs. B stood before me, shopping bags in hand, looking so very different from the way she had appeared when I last saw her many months earlier. Now she looked bright, happy, and full of energy.

We exchanged some simple pleasantries, and then I asked her how she was (in a serious and businesslike way). She took a big breath and looked at me, unsure whether I was a friend, previous business associate, or former lawyer. After a moment of apparent consideration, she said she was “honestly, very happy.”

Her manner of speaking made the comment redundant. It was obvious to anyone that Mrs. B (now going by a different name) was clearly happy and content by any measure. She looked good.

We stepped out of the main concourse to talk. She told me how things had “come together” for her in the aftermath of resolution. She said that when her case ended, she wasn’t sure if she’d be able to manage, but she had some remaining confidence that stayed with her even though she had felt vulnerable.

She said she remembered that I had told her an average settlement was twice as good as a great victory at trial. She remarked that her ex-husband, once a fierce combatant, was actually being almost easy to deal with, and had been cooperative on several children’s issues lately. He had found a new woman, and my former client found it surprisingly easy to communicate with this new woman.

She was glad that the case had settled, and even more pleased that the resolution had been achieved without huge expense or acrimony. She seemed genuinely happy and settled. Although she had not recovered everything she wanted, she had found some peace and had moved on. Getting perfect financial justice had, in the end, proven to be relatively unimportant. For her, the settlement and eventual divorce had been invigorating and uplifting, and she and the kids were happier than they had ever been.

As I walked away, I began to think about her happiness, and the very different and very unhappy experience that Mrs. G had gone through. Although no two cases are ever the same, I began to consider the similarities of the issues, the topics that were argued, and the results obtained. As I did, I realized that while there were some obvious differences between the two families, the parallels were remarkable. Mrs. G and Mrs. B had nearly identical cases and claims, and almost opposite experiences and results. I started to wonder why that was so.

My thinking about this issue is primarily what has led to the development of this book. For, in considering the cases side by side, I came to realize that the factor that brought Mrs. G such misery and Mrs. B such calm was not the process itself, the minutiae of the detail, or any other difference or distinction; it was that a fundamentally different approach had been taken from the outset. Mrs. B came to my office with a desire to settle and resolve the dispute in a non-acrimonious way. She did so understanding that litigation might result, but committed to avoiding that (probably because she knew it was undesirable, unaffordable, and impractical). Mrs. G, on the other hand, started the process wanting blood, expecting justice, and demanding litigation. Hell-bent for some inarticulate and insatiable objective, she could not be satisfied even when the litigation went exactly as she had wanted. No fair or even generous judgment could satisfy her desires because fairness was not the objective.

The lesson learned from these two files has taught me three things that are worth knowing and sharing:

• When it comes to negotiating a settlement, never say never. Do not leave the world of negotiation because you believe that the case will never settle. Sure, it may settle even after you start the litigation, but once litigation has commenced, the stakes are much higher and the sensitivities are extremely heightened.

• When you are negotiating and trying to settle, you must never believe that litigation is a practical alternative — litigation is not a reasonable option. It may be absolutely unavoidable in some cases (when there’s violence or hidden assets), but for most separating spouses, litigation just doesn’t make sense.

• Remember that you may be happier if you settle and miserable even if you win a lawsuit.