If you want to save on attorney’s fees, settle your case. If you want to save a lot, settle early.
One of the biggest motivators in settling a divorce case is to save on the significant attorney’s fees involved in taking a case to a court trial. In some extreme cases, such as those involving the trifecta of a child custody dispute, a spousal maintenance claim, and a fight over a business all rolled into one case, each party may easily incur well over $50,000 in attorney’s fees taking the case to trial. In a case that will ultimately cost $50,000 in attorney’s fees to take to trial, a settlement reached on the day before trial may only save each party $3,000 – $5,000 in fees. If the settlement is reached within a few weeks after the case is filed, however, the savings in fees could be $40,000 or more.
A few years ago, I was able to settle a case that was set for trial about three business days away from the date the settlement was reached. By the time we reached the settlement, we had already drafted our pretrial statement, had organized and prepared all of our trial exhibits, and had done significant other trial prep work. While the parties in that case certainly realized some savings on their attorney’s fees, the fees saved were thousands and maybe tens of thousands of dollars less than the savings would have been had the case been settled early on.
If there is so much money to be saved by an early settlement, why do so many cases not settle till the “eve of trial”? In my opinion, this occurs because as humans, we often want to put off for another day what we don’t absolutely need to deal with today. When the trial is four or five months off, it’s difficult to get people–the parties as well as the lawyers–to sit down and take a realistic look at the strengths and weaknesses of their cases. It is simply easier to wait and not think about it.
As the trial approaches, however, the parties become uneasy. They start to recognize they might not win on every issue. Things might not turn out exactly the way they want. They decide that maybe they in fact don’t want to leave very important decisions about their lives in the hands of a judge who, though well-intentioned, doesn’t know them and will be exposed to their case for only a few hours. When those realities start to set in, often not until the week before trial, the offers and counteroffers start flying back and forth between the attorneys. It is actually quite common for a case that both sides thought was unsettleable to settle the week before trial, and sometimes only the day before. A few years ago, I even had a case that settled during the lunch break between the morning and afternoon sessions of the trial.
Every person is entitled to his or her day in court. In some cases the parties are so polarized in their positions that they never do reach agreements, and that’s okay. That’s why we have judges. But in the vast majority of cases, particularly when the parties are represented by counsel, the parties should evaluate their positions and make serious efforts to settle their cases early on. Remember, the meter is running.
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