There’s a divorce client from five years ago who I have remained friends with on Facebook. When I first met him–and began representing him–he was trying to extricate himself from a short marriage that had produced no children and from a wife who he did not believe was compatible.
His wife, while unhappy with him, was even more unhappy he wanted out. Although they had almost identical educational backgrounds, he offered her more temporary alimony and equitable distribution than she was likely to get from the court. At mediation we–he, I and the mediator–discussed that he was “overpaying” for the divorce and even had a pretty good idea of how much he was overpaying. However he was happy to do this if it meant a quick exist from his marriage.
Five years later he appears to be living the life he envisioned when he decided to get out of his first marriage. His Facebook posts often highlight a happy new wife and a beautiful young daughter. They frequently travel to interesting places. He’s just moved to a new city for work and is excited about the move. His life appears filled with love and variety. What happened to this client wasn’t right–he overpaid for his freedom–but it did make him happy. I have always admired him for his choice.
Encouraging clients to pursue “perfect justice” is not only expensive, it can be counterproductive to their own happiness. The process of going through a divorce or child custody action can be grueling. Not only is there the expense and uncertainty of litigation, but there is an inability to fully move forward with one’s life until the dispute is resolved. Spending two or more years of one’s allotted three-score-and-ten engaging in domestic litigation should be weighted against the likely benefits of resolving the case slowly but on a “more just” result. It is better to be happy than to be right.
9 thoughts on Do you want to be right or do you want to be happy?
It is our job to explain the options, including the likely results at mediation or trial. It is then the client’s decision on which option to accept. While we should discourage contentious litigation that is not likely to be successful, we should likewise discourage “giving away the farm.” We should accept the client’s decision except in the most extreme cases. If we oppose the client’s extreme decision, we should withdraw from representation. A lawyer should never advise the court that the client is acting against the lawyer’s advice unless is is a contested motion to be relieved as attorney of record.
Splitting infinitives, such as “to fully move,” is distracting to the reader and lowers the quality of your writing to the level of the appellate courts of South Carolina. ☺
“A lawyer should never advise the court that the client is acting against the lawyer’s advice unless is is a contested motion to be relieved as attorney of record.”
I disagree. There is always the risk of “buyer’s remorse” when a client overpays or settles for what I consider to be an inequitable division. I want it on the record that I advised my client that I believed he or she was overpaying or that the agreement was “more fair” to his or her spouse.
I have been a longtime subscriber of your blog, and this couldn’t be closer to the truth. I was, and am still involved in the perfect storm of all things domestic. I did everything I was supposed to do–graduated college with honors, got a great job, great promotion; then fell hard for the wrong guy. It was indeed the perfect storm. He, 13 years older than me , knew what he wanted in life. I was very naive and did not. Months later, a baby. Money on his side. Work ethic on mine. We are still fighting this battle. I don’t know how it ends, but I would say to everyone in a similar situation: fight hard for what you believe, but be willing to accept how the cards fall.
Gary, we continue to disagree. Our job is to represent our clients, not ourselves. I tell my clients at our initial meeting that we can disagree in my office and that I may ask difficult questions in my office but that once we walk into court we are a team with a unified purpose. What happens if based on your putting your personal beliefs on the record you persuade the trial judge to reject the settlement and your client either gets a worse result after a final hearing, incurs considerably more attorney’s fees obtaining the same result, or an amicable separation becomes hostile and bitter? Do you really want to be on the record as having caused that? If you want a record of your position, write a letter to your client with your advice and recommendations and the reasons for your advice and recommendations. Also consider your role as a lawyer, as opposed to a witness, and the prohibition against asserting personal knowledge of facts or a personal opinion as to justness (Rule 3.4(e), South Carolina Rules of Professional Conduct.)
The client who inspired this blog believes he overpaid by $50,000 but might have paid me $30,000 instead (a possibly correct assessment if the case had required financial experts and gone to trial). He also writes, “I don’t miss that 50 grand at all.”
When my ex lost custody of our daugher to me, she was technically obliged to pay *me* child support, even though I had far more money. I had been paying her for years; it would have been an unnecessary insult to insist on the few dollars the law obliged. I totally agree with Greg than human/family relationships matter more than cash; no regrets.
I have never met Mr. Foreman, and my comments are in response to what he wrote, not Mr. Foreman himself (just in case my comments come across wrong). I respect what Mr. Foreman wrote, and agree wholeheartedly with it, should the client make that choice, but ask that he and other attorneys remember:
1. Make sure your client is fully informed of all implications regarding decisions they make for which you are representing them. Doing so prior to a client’s decision of record will be appreciated by them. (As Mr. Foreman’s client is.)
2. As Mr. McDow states, it is an attorney’s job to “represent our clients, not ourselves.” Whether your objections be made official in court, or as a part of the client’s record, please let the client be allowed to make the decision to which you might/will object. Present facts and opinion to the client, but remember the final decision should be theirs, and theirs alone. They have hired you to represent and inform them. Having done so, legal standards of representation will have been met. Ethics, morals, and Rule 407- therein lies possible issues. There is a difference between persuasion, coercion, and what may be understood as a threat by a client.
3. There are times a client feels they should make a decision for their own reasons- ones to which you, as their attorney, object. If an attorney cannot represent their client fully, asking to be removed is most likely the best choice- both morally and legally.
4. My situation is much, much different from the example Mr. Foreman gave. If a simple monetary payout would suffice, I might gladly pay it, but it won’t.
I must second A. Mc’s comment to standing firm (and I wish A. Mc the all the best). A client must be willing to accept the consequences.
Mr. Foreman, thank you for your blogs. I have found them helpful in my own case. I’m learning.
It is our job to explain the options, including the likely results at mediation or trial. It is then the client’s decision on which option to accept. While we should discourage contentious litigation that is not likely to be successful, we should likewise discourage “giving away the farm.” We should accept the client’s decision except in the most extreme cases. If we oppose the client’s extreme decision, we should withdraw from representation. A lawyer should never advise the court that the client is acting against the lawyer’s advice unless is is a contested motion to be relieved as attorney of record.
Splitting infinitives, such as “to fully move,” is distracting to the reader and lowers the quality of your writing to the level of the appellate courts of South Carolina. ☺
When I start writing these blogs in Latin, I will stop splitting infinitives (and also stop ending sentences with prepositions). ;)
“A lawyer should never advise the court that the client is acting against the lawyer’s advice unless is is a contested motion to be relieved as attorney of record.”
I disagree. There is always the risk of “buyer’s remorse” when a client overpays or settles for what I consider to be an inequitable division. I want it on the record that I advised my client that I believed he or she was overpaying or that the agreement was “more fair” to his or her spouse.
I have been a longtime subscriber of your blog, and this couldn’t be closer to the truth. I was, and am still involved in the perfect storm of all things domestic. I did everything I was supposed to do–graduated college with honors, got a great job, great promotion; then fell hard for the wrong guy. It was indeed the perfect storm. He, 13 years older than me , knew what he wanted in life. I was very naive and did not. Months later, a baby. Money on his side. Work ethic on mine. We are still fighting this battle. I don’t know how it ends, but I would say to everyone in a similar situation: fight hard for what you believe, but be willing to accept how the cards fall.
Amen!
Gary, we continue to disagree. Our job is to represent our clients, not ourselves. I tell my clients at our initial meeting that we can disagree in my office and that I may ask difficult questions in my office but that once we walk into court we are a team with a unified purpose. What happens if based on your putting your personal beliefs on the record you persuade the trial judge to reject the settlement and your client either gets a worse result after a final hearing, incurs considerably more attorney’s fees obtaining the same result, or an amicable separation becomes hostile and bitter? Do you really want to be on the record as having caused that? If you want a record of your position, write a letter to your client with your advice and recommendations and the reasons for your advice and recommendations. Also consider your role as a lawyer, as opposed to a witness, and the prohibition against asserting personal knowledge of facts or a personal opinion as to justness (Rule 3.4(e), South Carolina Rules of Professional Conduct.)
The client who inspired this blog believes he overpaid by $50,000 but might have paid me $30,000 instead (a possibly correct assessment if the case had required financial experts and gone to trial). He also writes, “I don’t miss that 50 grand at all.”
He’s a wise ex-client.
When my ex lost custody of our daugher to me, she was technically obliged to pay *me* child support, even though I had far more money. I had been paying her for years; it would have been an unnecessary insult to insist on the few dollars the law obliged. I totally agree with Greg than human/family relationships matter more than cash; no regrets.
I have never met Mr. Foreman, and my comments are in response to what he wrote, not Mr. Foreman himself (just in case my comments come across wrong). I respect what Mr. Foreman wrote, and agree wholeheartedly with it, should the client make that choice, but ask that he and other attorneys remember:
1. Make sure your client is fully informed of all implications regarding decisions they make for which you are representing them. Doing so prior to a client’s decision of record will be appreciated by them. (As Mr. Foreman’s client is.)
2. As Mr. McDow states, it is an attorney’s job to “represent our clients, not ourselves.” Whether your objections be made official in court, or as a part of the client’s record, please let the client be allowed to make the decision to which you might/will object. Present facts and opinion to the client, but remember the final decision should be theirs, and theirs alone. They have hired you to represent and inform them. Having done so, legal standards of representation will have been met. Ethics, morals, and Rule 407- therein lies possible issues. There is a difference between persuasion, coercion, and what may be understood as a threat by a client.
3. There are times a client feels they should make a decision for their own reasons- ones to which you, as their attorney, object. If an attorney cannot represent their client fully, asking to be removed is most likely the best choice- both morally and legally.
4. My situation is much, much different from the example Mr. Foreman gave. If a simple monetary payout would suffice, I might gladly pay it, but it won’t.
I must second A. Mc’s comment to standing firm (and I wish A. Mc the all the best). A client must be willing to accept the consequences.
Mr. Foreman, thank you for your blogs. I have found them helpful in my own case. I’m learning.