The Value of Reasonableness

I recognize that most people hiring a lawyer are either in the middle of a fight, or need to start one.  Sometimes this involves fighting for damages due to a negligent driver, and sometimes it manifests in a bitter divorce.  It can be so difficult to live in these realities and imagine that working together with the other side will ever be possible.  What these parties typically want to do is reach across a table and scratch the opposition's eyes out, and expect their attorneys to do the same.  Quite the surprise when the lawyers not only get along, but encourage a resolution that does not involve a trial.  Why is my lawyer being so nice, they ask.

The value of reasonableness is not always readily visible.  Especially when emotions run high, being reasonable can be the last thing on a person's mind.  This creates major difficulty, therefore, when trying to reach a resolution without trial.  We as lawyers are trained to practice in an office as well as a courtroom, so the fact that your lawyer encourages a non-litigious resolution is no indication that he or she is afraid to present the case to a judge.  Instead, lawyers understand the gamble inherent in trial, and therefore try to inform their clients of the pitfalls associated with trying to a judge or jury.

Abraham Lincoln famously said this about trial:  "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."

I think Honest Abe was on to something.  I can't tell you how often I see former couples fighting over the most meaningless pieces of furniture from Rooms to Go and the like, only to pay ten times the value on lawyer fees, and all just to stick it to the other side?  This hardly seems like a good use of time, even if I do make more money when my clients fight than when they don't.  In my representation, I try to help my clients find a fair resolution they can live with, which sometimes means a mediated agreement, and sometimes means a trial.  Default is certainly not "let's let a judge decide," however.

The most valuable aspect of being reasonable is this:  only when you reach an amicable resolution with an opposing party can you truly start to heal.  Working together to raise a child or dig a ditch becomes considerably easier when the two of you got their without a judge's intervention.  This is NOT about being scared of a judge.  Judges are trained to hear your case and come up with a good solution.  Once you argue before a judge, however, you no longer control your case.  At least when you work with the other side, you get to dictate what you are willing to do, and can't be forced to do what you don't want to do.  As the judge lays down the order, however, you're stuck.

This comes up often in my domestic practice, where mother and father have their differences in deciding how to raise their children.  What I try to encourage for my clients is that, even though you may never want to see your child's other parent again, you will be forced to by a certain degree for the rest of your child's life.  Fighting tooth and nail at this point probably won't help you down the road when the child needs a united parental front.  At the end of the day, your child most importantly wants his or her parents to get along and not involve them in their battle.  Only one way to get this done:  be reasonable.  

There are times to fight in court, and that usually is when one side is being unreasonable and refuses to agree to anything.  Litigants need to understand that this is worst case scenario for your life.  Sure, you might get everything you want in court, but that is no way to think about it.  Even if you get the same "deal" from the judge that was on the table during negotiations, that deal is now tainted by the litigation you forced.  What once was an ex-spouse you could face becomes a parent with a grudge.  How does this help the two of you raise your kids?

I am not advocating lying down and taking what the other side offers.  Being reasonable means coming into negotiations with a clear and open mind.  Think about how you could possibly work with the other side, and not how easily you could ruin them forever.  Trial is necessary in many cases, but not all.  Listen to your attorney and be reasonable.  At least you can sleep at night knowing you tried.

Sincerely,

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.