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Why Trial is (often) a Last Resort

By Allison Quattrocchi, (retired)

Most cases settle. Settlement does not necessarily mean both parties thought the agreements were fair. Some couples or people either got tired of fighting or the money ran out or high emotions, blame, and rancor subsided and solutions that may not have been attractive earlier became more so. Some couples or people were mature enough in the end or the even the beginning to be reasonable, put their children’s or other's needs first, maybe even be generally respectful, and were able to find a result they each could live with and, in the best of cases, fair. Fairness is, however, an abstract concept. It depends on perspective and perspectives can legitimately differ. So, asking whether an agreement is fair is not always the best criteria for determining what is a “good” agreement.

Few cases should go to trial but end up in trial because of out-of-control circumstances like the following:

  1. Someone feels so wronged that he or she has to tell their story to the judge and believes that the judge will make it right. Wrong.
  2. Some are so angry that the anger has consumed them and there is no ability any longer to be rationale. Only a judge’s decision can stop the continuing flow of money and emotional harm. Often, they sadly learn that the harm done by the process leaves a wake of continuing chaos...and they seldom feel or are better.
  3. Sometimes a spouse or party wants revenge and fails to consider consequences to themselves, the family, or the business. A wise Chinese proverb states: “Those who seek revenge need to dig two graves.”
  4. Some have a pervasive need to be right, and being right is more important than the family or the consequences. Most will be disappointed in the result.
  5. Some believe a principle they hold dear is at stake. Even if the “principle” is legitimate, the principle may not prevail and few “principles” are worth the emotional and financial cost, especially if there is a family, business, and future involved.
  6. Sometimes one or both attorneys are very litigious. Good luck.
  7. Sometimes an attorney has such a difficult client that he or she is reluctant to advise settlement because the client will blame the attorney and may file a Bar complaint. The decision of a judge gets the attorney off the hook.

Some cases like the following are appropriate for trial:

  1. Sometimes each party has a legitimate difference of perspective and no resolution can be agreed upon, so if arbitration isn't wanted or hasn't worked, there is no place to go but to the judge. Perhaps someone’s perspective will prevail in court; perhaps each will get half a loaf.
  2. Sometimes there is a legitimate legal issue that the law needs to revisit or clarify. These cases are rare, usually complicated, cerebral, and often end up being appealed for even more delay and expense. Decisions from this type of case may make new law or new interpretations of the law and the next person with a similar set of circumstances may not have to turn to a judge. The law  then may be more clear.
  3. Sometimes one or more of the people involved in the dispute are not in a place where they can or will make their own decisions...or fear they are not. Even with or after sufficient information and time, assistance and support, however, consideration of expert mediation help should be considered. There is usually always time to go to trial.

Message: Even when there is a good reason to go to trial, emotional and financial havoc is still a result. One needs to consider carefully if it is worth it. Outcomes of trials are seldom predictable; parties will lose even more control over their lives, and the experience of trial often leaves the family or post-trial situation in tatters. Parents, partners, and extended family members who go to trial often irreparably damage their ability to continue together as successfully as they would have been able to without the trial. The havoc of any trial, consumes the children, other family members, or business associates as well. Even if you go to trial and win the battle, you may have lost the war.

Recommendation: The healthiest way to resolve most conflicts whether divorce, stepparenting, elder concerns, or family owned business problems is to mediate. If you want representation in conjunction with the mediation process, consider using an attorney you know is supportive of mediation and will work cooperative with the process. If mediation is not an option for you, choose attorneys to represent you in the legal process who are committed to working cooperatively. 

Collaborative Law is also an option. This is a process which is oriented around certain requirements for the use of other experts in a team approach.