By: Curtis Wiberg
As your family law case progresses to trial, the risks of letting a judge decide the course of your life and/or your children’s lives becomes a huge factor to consider if you are in a contentious divorce or post-divorce proceeding. No matter how strong you may perceive your position to be, taking a case to trial is always a gamble, and it is important to have the opinion of a lawyer with experience litigating to provide you the best information as to your best course. Though some cases can be straight forward such that the outcome seems certain, others can have a murkier outcome, depending on the law and the facts. Additionally, given the fact that each judge/court may view an issue differently, results can vary from courtroom to courtroom.
In any case, it’s important to know what the best case scenario of going to trial is, and the odds of that best case materializing. Likewise, it’s important to know what the worst case scenario of going to trial is, and the chances of that worst coming to pass. Where a compromise falls on that spectrum between the two scenarios should be one of the major factors to consider when making the decision regarding whether to settle or go to trial. Having an experienced attorney who knows the law, the judges, and the expert witnesses to inform you of the likelihoods of various outcomes can be extremely helpful in guiding you to the best decision.
The best argument for settlement of your case is that it produces a guaranteed result. If the settlement provides the majority of your desired outcomes, without risking your worst case scenario, then settlement might be the way to go. A bad judge, having a bad day, whose only knowledge of your family comes from the day you are in the courtroom can make a decision that is arbitrary and is your worst case scenario. Working with your Denver family law attorney to assess whether to settle, from a cost-benefit analysis, and mapped up with the risks, can greatly increase your chances of an outcome you can live with.
One important thing to consider is whether an expert witness is involved, and what their opinion is. For instance, in determinations on parenting issues, if a Child Family Investigator was appointed, their opinions and recommendations are very hard to overcome at trial, absent glaring malfeasance. If a Child Family Investigator makes recommendations contrary to your position, any compromise offered that is better than what the investigator recommends should be seriously considered.
Another important thing to consider is the intrinsic value of having a case done. The stress, animosity, and expense of active litigation can affects the quality of your life and that of your children. Having a matter settle amicably, with compromises on both sides, can improve communication with your ex-spouse or partner, which in turn reduces the anxiety of children down the road. Again, the key is whether that which you are giving up via compromise is less important that gaining certain finality.
A final thing to consider is the expense of trial. The trial preparation and trial itself are two of the most costly stages of litigation. While, using as an example the issue of child support, you may have a good case to have a judge order a higher amount of child support, but the costs of litigating that issue ends up being the equivalent of that extra amount of support for a period of many months. Assessing the ultimate cost of litigation mapped up with what you will gain at trial is always an important consideration for you and your attorney to discuss and your attorney should always be ready to assess those matters with you.
Each case is different. While many arguments can be made in favor of settlement, and while a majority of cases do settle, there does come a time when a line needs to be drawn. If you are the only one making offers of compromise, while the other party is not moving from their position, there’s usually no reason to bid against yourself just to get a settlement done. If the offer to settle is to accept something very close to your worst case scenario when you have some good arguments to make in court, then there’s really nothing to lose by taking your case to trial.
Furthermore, there are some cases, such as a relocation custody case, in which compromise just can’t be had, given the all-or-nothing issues at stake. The same can hold true for significant, immediate issues, such as instances in which you feel your children are endangered. Moreover, sometimes trial is preferable to prove a point, or based on principal.
As the client, the ultimate decision on whether to settle your case or go to hearing is up to you. Having an experienced Colorado family law attorney to help you assess how to proceed can give you the best chance for a good result in your legal matter.