People are "Predictably Irrational"

This morning, I read an article titled How much should a lawyer charge?  

"'Each case has its own 'price point.' The amount of fees and other expenses that may be required to resolve a case depends on at least four variables: (1) Level of conflict, (2) Complexity of issues, (3) Sophistication of clients, and (4) Choice of counsel.'" This quote is from an article by Nancy Chausow Shafer titled Dispute Resolution Processes in Limited Finance Cases - Stepping up to Client-Centered Decision Making that was published in the Fall 2013 edition of ABA Section of Family Law - Family Advocate.

There is no reason to believe that the above factors aren't the same for non-family law cases. It is important to note that hourly rate, amount of retainer, and whether or not the attorney offers a free initial consultation are not listed as factors in such a "price point."

Time and time again, I have witnessed situations in which lawyers who gave free initial consultations, had significantly lower hourly rates and requested lower initial retainers end up costing the client substantially more in the long run.

Consider how many of the above factors are impacted by "choice of counsel." Try two (2), not including "choice of counsel" itself - "level of conflict" and "sophistication of clients."  In other words, three (3) of the four (4) major variables have to do with the particular attorneys involved.  "Sophistication of clients" in my opinion means management of their expectations.

The less skilled a lawyer is at managing such expectations, the more often they find themselves in court (unless they are trial lawyers who are brought into cases just to handle the trial). Interestingly enough, the less skilled the lawyers are at managing their clients' expectations, the greater the attorneys' fees earned.  That inherent conflict of interest essentially disincentivizes the attorneys from managing their clients' expectations.  Interesting how that works, isn't it?

The same is true of the level of conflict. For example, in Germany, family law attorneys are legally and ethically obligated to do everything possible to reduce the conflict when litigating.  I learned about this reality at the 50th Anniversary Conference for the Association of Family and Conciliation Courts (AFCC) in May 2013.  

Allow me to share the notes I took on the subject, which was conveyed by Ursula Kodjoe, MA:

"The role of attorneys in Germany is now deescalating conflict. It seems to work much better than when they used to escalate conflict. Do lawyers elsewhere escalate or deescalate conflict? Think about it!

 Judges in Germany no longer tolerate lawyers who try to delay hearings and resolution because continuances are not 'benign.' The time of uncertainty is itself stressful and leads to destructive behavior.

 'Who has the right to declare parents to be enemies?' In Germany, they no longer have adversarial trials when it comes to issues pertaining to children."

You see, it can be done. In fact, I have given programs on that topic.

In fact, on February 5, 2015, I gave the following presentation at the San Gabriel Valley Family Law Study Group meeting: "De-Escalating Parental Conflict Through Service Delivery.” The program will focus on strategies and behaviors attorneys can leverage to reduce the risk of parental conflict."

After that presentation, one of the approximately forty (40) attorneys in attendance told me that he really enjoyed my presentation and agreed with most of what I had to say. He also told me that he didn't feel comfortable admitting this to any of his litigation colleagues because they just don't "get it" or don't want to "get it."

I also just received the following email from a different attorney in attendance: "Great presentation last night! Really spot on. Some of what you said was WAY over their heads but still important to get the message out!"

Following that presentation, I released a few articles on the material covered.

One was titled Emotional Considerations Regarding Service of Process.  I shared that article on the listerv for the members of the Family Law Section of the Los Angeles County Bar Association.  The only response I received was from a third year UCLA Law School student, who commented "Thanks for posting, Mark.  This is the type of practical advice more law schools ought be teaching."

Another article from this series was was De-Parenting The Other Parent Through Our Choice of Words.  

The third article from the series was Family Law Matters Must Be Handled With Care.  What I didn't state in that article was that two (2) days after I gave the presentation and the lawyers collectively explained why they couldn't do what I suggested in that article because it is inconsistent with their obligation to advocate for their clients, I attended a family law conference I attend annually.  At that conference, I saw a family law judge who practiced collaborative divorce before becoming a judge.  This judge agreed completely with the information contained in the article.  The judge said that they did just that in the years immediately prior to their becoming a judge and far more of their cases settled.  They also said that on the very rare occasion that a parent acknowledges that the other parent is a good parent and that the issue is not about fitness (assuming it's not), they have more credibility because otherwise every parent is either stating or implying that the other parent is not fit -- which can't possibly be true.  How diminishing the likelihood of settlement and destroying your client's credibility is good advocacy is beyond my comprehension.  

In any event, when I posted much of this information on Facebook today, along with a link to the article titled How much should a lawyer charge?, a litigator responded and we engaged in the following discussion:

Litigator: "Mark Brian Baer, not every case is based on money. I was taught the risk/benefit analysis in law school and it was from that right-wing free market Judge Posner from the 7th Circuit and I always thought that it reeked of Ayn Rand."

Me: "I was taught the risk/benefit analysis as an economics/business major in college. That's not my point. I am not talking about whether or not a case is worth pursuing, or even particular issues within a case."

Litigator: "One of my clients is waging a Jihad against an attorney who wronged him. His motivation has merit."

Me:  "Pursuing the case and how much his lawyer charges are two very different things."

Litigator: "But generally I agree with you. However, some litigation involves intangibles, like SULLIVAN v. NY TIMES."

Me:  "I am not disagreeing with you and I am not saying that 'principles are expensive', which they are. I am saying that it is a choice to litigate by 'waging a Jihad', especially if their lawyer is charging by the hour. The matter can successfully be pursued through trial without 'waging a Jihad.' However, the lawyer who charges hourly benefits greatly when their client 'wages a Jihad.'"

Litigator: "Tell me about it."

Me: "That's my point!"

Litigator: "Ha!"

Watch the speed at which attorney's fees rose in a litigated divorce case in which the net worth was $1.53 million (Winternitz v. Winternitz):

Wife:

8/13: owed $65,000 in legal fees

10/13: owed $147,000 in legal fees

2/14: owed $155,000 in legal fees

Husband:

Paid his attorney $157,000 in legal fees and was current on his bill

Because of the manner in which the assets were held, court found that husband lacked income to sustain himself and their child due to the cost of litigation and neither party could afford counsel anymore.

Marriage of Lafkas II is the longest running divorce case involving a police officer. It is going to trial after 20 years.

Never forget that family law cases are considered the vampires of the legal field.

Care to play a win/lose game when courts have ongoing jurisdiction for legitimate public policy reasons? Rematch anyone?

The theme in the California appellate court decisions in 2015 had to do with the need for lawyer civility and discouraging frivolous litigation.

 When it comes to allocation of respective attorney's fees and costs in California divorces based upon "delay tactics and lack of cooperation" or the like, the joke's on the clients themselves. After all, those fees don't come from the attorneys. Just follow your lawyer's lead!

The following is an excerpt from an article published on Harvard Law School's Program on Negotiation blog titled "Three Questions to Ask About the Dispute Resolution Process - What a negotiator needs to know about negotiations and alternative dispute resolution":

"Dispute resolution is often a multistep process that can start with negotiation, move on to mediation, and, if necessary, end in arbitration or litigation.

This progression allows parties to start off, quite naturally, with less-expensive, less-formal procedures before making bigger commitments of money and time.... 

Sander and Rozdeiczer advise you to choose the right dispute resolution method by answering the following three questions about the case you’re facing.

QUESTION 1: 'What are my goals?'

Simply knowing what you want to get out of the process can help you decide where to start. Begin by prioritizing your goals.

For example, Carla wants to hash out a custody agreement with her husband as quickly and inexpensively as possible.

Because she wants to make sure they both abide by the agreement, she wants them to decide the final outcome together.

It seems clear that, given Carla’s goals, mediation is the best choice for her dispute. Mediation is typically faster and cheaper than arbitration or litigation, and mediation also gives parties the greatest degree of control over the final outcome....

Sander and Rozdeiczer advise you to start off with mediation, as it is a safe, nonbinding procedure for both sides.

QUESTION 2: 'Which process will capitalize on the best features of the dispute?'

Every dispute has features that can help you reach a beneficial outcome, write Sander and Rozdeiczer.

Which process will best trigger the strengths of the case?

The authors have identified a number of dispute features that lend themselves well to mediation: a good relationship between parties and their attorneys, opportunities for creative problem solving, the willingness of one or both sides to apologize for any mistakes or wrongdoing, eagerness to settle quickly, and the presence of multiple issues that might lead to tradeoffs.

If your dispute has one or more of these characteristics, mediation may be the best choice for you....

QUESTION 3: 'Which process will best overcome barriers to resolution?'

As you try to answer this final question, Sander and Rozdeiczer advise you to keep in mind that both sides to a dispute often prefer a settlement to an arbitrator, judge, or jury’s binding win-lose decision.

Thus, it helps to focus on the ability of the three different dispute resolution methods to help you overcome barriers to settlement.

In particular, when parties are having trouble communicating and have a strong desire to air their feelings, mediation is often the best choice.

When more than two parties are involved in a dispute, such as grandparents or other relatives in the case of a custody dispute, mediation might also be optimal, as it allows multiple parties to become involved....

When in doubt, mediate In sum, the low-risk, relatively low cost nature of mediation makes it the 'go-to' dispute-resolution process.

Mediation allows negotiators to work together toward maximizing their outcomes under the guidance of an expert, rather than handing over their dilemma for someone else to resolve on their behalf.

Mediation can also be a beneficial choice when negotiators need to work with each other in the future.

If a mediator is unable to help you and the other side reach agreement, you may still need to turn to litigation or arbitration, but you will do so with a better understanding of your case and the issues at stake."

Keep in mind, that divorce and family law is litigation. Therefore, unless you specifically seek out a well-qualified mediator, mediation-trained lawyer, or enter into the collaborative law process with a well-qualified (and collaborative) professional team, you aren't going to get what is recommended by Harvard Law School's Program on Negotiation.

Might I suggest you consider mediation or collaborative law?

The reason this article is titled People are "Predictably Irrational"  is because they come up with infinite justifications for jumping directly into litigation or litigated negotiation without first attempting mediation.  For example, they convince themselves that since they aren't "amicable", they can't mediate.  Since mediators are conflict intervention specialists, why on Earth would mediation only be appropriate when people are "amicable"?  Regardless, they instead utilize traditional lawyering, which is adversarial and therefore tends to exacerbate conflict and increase distrust in order to obtain a result.  It would make you scratch your head in disbelief, if you weren't aware that people are "predictably irrational."