If I Were My Own Divorce Lawyer – Would I Rather Go To Court Or Settle?

The hardest question for a Pennsylvania Divorce Lawyer is determining whether or not a divorce case should be settled or go to trial. In a recent article in the Huffington Post.com, entitled,” WHAT DO DIVORCE LAWYERS DO IN THEIR OWN DIVORCES”, J Richard Kulerski and Kari Cornelison state that the vast majority of lawyers would “try to stay out of (Divorce) court”. They state that “despite any perceived advantage they are believed to have, they do everything they can to settle their case before they reach the court system” because they think going to court is a losing proposition. Their reasoning is that taking the case to court is a counter-productive force that destroys their chance of achieving a healthy negotiating climate. Although I agree that settlement is generally better than fighting it out in Court, sometimes it’s just the correct approach and sometimes you do not have an alternative.

The first thing I do in child support, Pennsylvania divorce, alimony or custody cases is determine the relative strengths and weaknesses of the case. This will determine my leverage. Leverage is always a function of the overall facts and how Pennsylvania divorce laws apply to those facts. I also look at the venue I am in – for example, am I in Allegheny County, or Westmorland County, Armstrong County or Washington County. These facts definitely play a part in my decision making.

After assessing my chances of “winning” the case, I will outline the cost benefit analysis to my clients – this is our chance of winning and this is what it will cost to litigate. In the case of equitable distribution, child support, alimony or alimony pendent elite, this cost-benefit analysis is highly quantifiable. Of course, in the case of child custody, the benefit is less quantifiable, so the “chance of winning” or attaining what you desire plays a huge role in the ultimate determination.

As regards to going to Court hurting your chances of settlement, I do not totally agree. Granted, going to Court is the ultimate risk, but opposing counsel knows that too. So, sometimes, the threat of going to Court, and going to Court, can actually aid in the negotiating process.

In essence, each case has to be individually evaluated. The probability of success has to be assessed (I use my old Carnegie Mellon business school background here) and then the cost benefit analysis has to be determined. Sounds easy-right? Well-then you have to get your client to take the emotion out of it. Believe it or not, when you objectively lay out your analysis to your client-most go along with your professional recommendation.

Source Huffington Post.com, “WHAT DO DIVORCE LAWYERS DO IN THEIR OWN DIVORCES“, J. Richard Kulerski and Kari Cornelison, February 6, 2012.