Knowing When to Fight

Some common misconceptions among many litigants are that everything should be fair, that all wrongs should be made right, and that a lawyer’s job is to see justice done in all respects.  The smart litigant understands that life is not fair, that righting some wrongs is either impossible or not cost effective, and that lawyers have a purpose beyond merely pursuing justice.   On occasion, it is not even in your best interest to take a stand based solely on principle.  Allow me to explain.

The Serenity Prayer written by theologian Reinhold Niebuhr and adopted by twelve step programs everywhere states, “Lord grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference.”  This simple prayer takes on added significance in the family law context as individuals learn that the one thing that cannot be changed is the past.  The choices that have been made, the words spoken, the deeds done…all stand for eternity.  How you deal with the past determines whether you are wise, or whether you are acting out of irrational emotion.

Clearly there is a time for action and a time for principle.  There is also a cost for principle as well.  Before taking your first step, think about exactly what you want to accomplish.  Ask yourself what a win looks like, and what will be the financial and emotional price tag associated with getting the win.  And then determine your chances of accomplishing your goal, given the facts at hand.  While some litigants claim not to care if victory seems unlikely because “it’s a matter of principle,” I can assure you that they care when they do not succeed and the other side is emboldened by witnessing an attacking cavalry fall into an oil pit.  On such occasions, if you thought it was bad before, this failed attempt will buoy the other side and make matters worse for you.  Guaranteed.

Perhaps you think that success is inevitable because you hired the biggest and most feared lawyer in town.  Yet while the sweet smell of anticipated success is already in the air, remember that every lawyer is limited in some way to the facts as they exist, and the most that that your lawyer can do in court is to present the facts favorable to you in the most compelling light possible, supported by law that is hopefully on your side.

So what exactly do you need your lawyer for anyway if he/she is not eagerly gunning on your behalf for truth, justice and the American way?   Without question, your lawyer should be counseling you.  Plain and simple.  You hired your lawyer to be a counselor not affected by the emotional baggage of your past.  Your counsel should be an objective voice of reason and experience, providing you with a cost benefit analysis of each strategy.  While you already know to avoid a lawyer who cannot stand the heat of battle, you should also beware the lawyer that fails to explore caution and reason, as well as the one that attempts to fuel your anger and infuses emotion into a case to encourage you to launch an attack where there is no real likelihood of gain (for you—that is).

When you have a just cause and a good chance of gaining a measurable victory worth the effort, seize the moment and attack with confidence.  If there is an time where principle requires action, go for it.  Just remember to choose wisely the hill on which you are willing to die.  Not every hill is worth taking.  A good lawyer can help you gain the wisdom to know the difference.