What if we can’t settle our case and I don’t have a lawyer for the trial?

What if you should decide that you don’t want me there by your side…Let’s take a breath, jump over the side”

          “What if” – Coldplay, 2005

This week we’re going to highlight another “what if” scenario that I hear from my Rogue Family Law customers:  

What if we can’t settle our case and I don’t have a lawyer for the trial?

This first post answers that question with potential solutions. In the posts that follow, I’ll dive into what actually happens at trial, the kinds of trials you can have and what to do to prepare for your trial.

The first thing to do is take a deep breath – literally. The idea of a trial stresses most people out which can lead to panic and making mistakes. So, regulate your breath, or do whatever (healthy) thing you do to calm yourself. You will need to think clearly and calmly.

Next, don’t make assumptions. Just because you and your spouse or co-parent aren’t getting along doesn’t mean you can’t settle your case.  Before you abandon hope of an out of court solution, make sure it really isn’t possible.  

Ask yourself the following questions:

1. Could we use a neutral third party to try to work this out?

This can be a therapist, a financial advisor you both trust, professional mediator, or a judge who can meet with you both to try to resolve your case in what is called “a judicial settlement conference.”

It can be the lawyer(s) if either or both of you have them. 

(If you have a lawyer, have you asked them to put together a settlement letter to the other lawyer/your spouse or co-parent?)

2. Is there anything on which we agree that we can use as a starting point for a partial agreed judgment? 

 If there are things on which you both agree, you can use those issues to start the process of getting a partial judgment started. And you just might find that this creates momentum to encourage more solutions; or at least leaves you more comfortable talking and working with each other to find solutions.  If it turns out you agree on absolutely nothing (unlikely) you need to know that so you can prioritize your issues and get organized for court.

3. Do we have a clear idea of what a compromise would look like?

You may not be able to persuade your spouse or co-parent to agree with you but having a reasonable plan that gives you the things you most care about is something you can use in trial to ask the judge to order.  Judges, like many professionals, are eager to get their work done in the best way possible.

The one who has a good plan often carries the day in court.

4. Have we considered a "collaborative law" approach?

This is a specialty within family law (among other legal areas) in which each side has their own lawyer but the goal is to reach an out of court resolution.  Collaboratively trained lawyers focus on working in a four-way (or more if you need specialized neutral add on professions such as financial experts or child professionals) setting to find creative solutions.  

The idea behind collaborative law is that you have your own lawyer who not only explains the law and your case to you, but is dedicated to finding solutions.  

See the post on “Why can’t we hire one lawyer to represent both of us?” for more information on why you can't both hire the same lawyer.

5. What is the outcome I fear the most, and with whom can I discuss this fear?

 It's important to clarify the outcome that is keeping you up at night so you can find out how likely this actually is.  

It is also important to get what is scaring you out into the clear light of day.  Our fears only build when kept in and as Mark Twain once said, “some of the worst things in my life never even happened.”  

 Talking over your concerns with a lawyer will help you see if what you most is even likely. If it is a possibility, you need to know to prepare including reaching a deal by giving up something less important to protect what is most important.

Even if you can’t afford a lawyer, you may be able to find someone to help you organize your thinking around the problem and research free information about legal outcomes.  At the very least, you’ll likely feel less uneasy.

There’s an old saying that a problem shared is a problem halved. Even shrinking the problem a little will help you get through your case.

If the answers to these questions make clear that you need to go to trial for some or all issues in your case, take another breath. There’s work to do. I’ll cover some of those topics in the next three posts.