Sunday, October 4 , 2015, 9:22 pm | Fair 58º

Brian Burke: About Your Divorce (Letter 54) — Who’s Won? Who’s Lost?

By Brian Burke, Noozhawk Columnist |

Dear Pinky and Spike:

Due to the competent legal work by their lawyers, Ralph and Rebecca arrived in the Superior Court each thinking the other was insane. How could s/he not understand that s/he was a dead duck on the issue of reimbursement? What are we doing here?

They were both somewhat accustomed to being in court — accustomed but not comfortable — and they both wanted to be anywhere else. Plus, each of their lawyers told them that they would — almost surely — win.

The lawyers were sincere. Each had found her own answers by doing conventional research. For Jennifer and Ashley, a statute trumps an appellate decision.

Once you’ve read a few hundred appellate opinions you will recognize those where it’s evident that the justices decided who was going win at the outset and then let the research attorneys figure out how to justify the result. (The more radical of the Rule Skeptics argue that all appellate decisions are made in this way.) The twisted logic in this category of appellate cases is either painful or amusing to read. They are embarrassing to those with high regard for the court. Marriage of Williams is one of those cases, so its precedential value is even less than it would have been if it was a soundly reasoned opinion.

Then there is the phenomenon of tunnel vision. Once a lawyer is ready for trial, she often loses sight of the weaknesses of her case because she’s convinced herself that she has them covered. Eventually, most lawyers reach a point where they are focused on their anticipation of the trial. The so-called Confirmation Bias takes effect and they avoid any information that might undermine confidence in the decision. They are not psychologically available for settlement discussions and see them as distraction from the focus on the trial. (Mediation can’t go forward if one of the participants is “not available for mediation.”) In contrast, a lot of trial preparation may show that the case is more vulnerable than the original evaluation — and the lawyer will be eager to engage in settlement discussions.

If one side is psychologically “unavailable” for settlement discussions, a settlement will not happen unless that confidence is shaken. Here, both parties have reached that state of wanting to go for it — and each is deaf to the arguments of the other.

The Ultimatum Game (often cited by psychologists, economists and decisional scientists) sheds more light on what makes settlement of a case like this so difficult. In the game/experiment, the participants are strangers to each other, and they each understand that the game will be played with one round only. Jill is given a certain amount of money, say $100, to divide. Jack either approves or disapproves her division.

If he approves, the division takes place as Jill has specified. If he disapproves, neither party gets anything. Jill’s task is to propose a division Jack will approve. If Jack makes an economically rational decision, he will approve any proposed division because he will get something instead of nothing. But we are not surprised to learn that if the proposed division is too low, say $1 to Jack and $99 to Jill, Jack will reject the dollar rather than accept Jill’s rather greedy division, even though that decision is not “rational” and not in his economic best interest.

If they want to settle the case, no matter how confident of a win, the proposal has to have enough value to each side to prevent the “to hell with that” reaction (often expressed in a brief form using only two words).

Because a division by two represents equality, it is not rejected in the Ultimatum Game. If Jill is dividing $2 million, she can be fairly certain that Jack won’t reject a division that gives him less than $1 million. But whether she gets $1 million (half) or $1,800,000 (90 percent), it’s a lot of money to Jill. How much risk will she take when she has so much at stake? She knows that he will almost surely accept half, and she is left with a lot of money. How willing is she to risk that $1 million in the hope of getting more. (Jill’s decision will be dominated by the “marginal utility” to her of the money in excess of the first million. It is an entirely subjective factor that will have a big effect on outcome.)

All of this leads to the conclusion that Ralph and Rebecca would have to be willing to meet in the middle to resolve the case. Of course, neither will even consider that kind of a settlement — even though they both know one is going to win and one is going to lose. One observer suggested they resolve the case by tossing a coin and thereby saving the attorneys’ fees, but he was scoffed at for being unprincipled.

There was great fretting by the parties and the lawyers over how the judge would decide the reimbursement issue. When the case was finally tried, the judge spent no more than a minute on the issue and ruled against the claim and in favor of Ralph; he finally experienced victory. There had also been a lot of consternation about whether the judge would give Rebecca an award of attorney’s fees. Neither party was going to have any ready cash, but Ralph had good income and plenty of credit. Rebecca’s spousal support would double her monthly salary of $3,000. The judge had nearly unlimited discretion on the issue of fees, and Jennifer thought the award would be low as the judge’s way to show disapproval of Eunice Heep’s style of practice.

The judge listened impatiently to the witnesses. When it was time for the lawyers to argue, she interrupted, saying, “Counsel that’s in your trial brief. I can read and I did. Please don’t waste the court’s time telling me the same thing twice; it’s insulting.”

She ruled as soon as the lawyers’ final arguments sputtered out. She looked directly at Ralph when she awarded Rebecca spousal support of $3,200 a month for half the duration of the marriage and added, “All things considered, Mr. Robertson, that’s a good deal for you.” The lawyers didn’t know or care what she was talking about, but Ralph did. He smiled, put his head down and blushed. The judge then ordered Ralph to pay $37,500 of Rebecca’s attorney’s fees.

The lawyers were quiet on the walk back to their law office. Ashley and Jennifer were very pleased by the court’s decision on the one issue that was really contested, and they wanted Ralph to feel vindicated. Ralph listened, but said nothing. After a pregnant pause, he got out of his chair, found a red marker and wrote on a flip chart: $75,000/2 = $37,500. He took a quarter out of his pocket, tossed it into the air, caught it and slammed it down on the library table. He walked away without looking to see if it had landed heads or tails.

Your friend,

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address). Click here to read previous columns. The opinions expressed are his own.

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