My practice is now 100% dedicated to out-of-court solutions for those in conflict. But it wasn't always that way. And every now and then, I get an attorney on the other side who says he wants to resolve, but then does silly things like file a motion in court without even a discussion. Honestly, how hard is it to call the other attorney and try to resolve before filing a motion with the court? Let’s think about the economic efficiency of this.
To file a motion, you have to interview the client on the issues. Maybe an hour’s worth of discussion. Let’s assume the attorney is billing at $350/hour. Then the attorney has to prepare the judicial counsel forms, memorandum of points and authorities (the law that supports the requests being made), the client’s required financial disclosures and declaration in support of his/her motion, and, possibly, a declaration by the attorney (if the attorney has anything of relevance to add). With all of this, let’s assume, conservatively, three hours total to prepare the motion. 3 x $350 = $1,050 + 1 hour prep time = 1,400.
Once the motion is served on the other attorney, that attorney now has to respond and make requests on behalf of his/her client as well. Let’s assume another hour for client interview and, conservatively, another 3 hours for preparation. That’s another $1,400. That’s $2,800 so far, and no one has gone to court yet.
The way the financial crisis has affected the family courts, those hearings that use to be set out 30 days, are now being set out 45+ days. Let’s assume that the initial attorney doesn’t like that it will take 45 days before the motion will be heard so s/he files an ex-parte motion (have the issue treated as an emergency to get immediate orders - within 1 to 2 days - until the motion can be heard). That only takes about 15 minutes, at $350/hour that’s $105 (most attorneys bill on the 10th of an hour so every 6 minutes is .1, 15 minutes is .3). If the ex-parte is scheduled (and it may be rejected unless the court deems the request truly an emergency - very few situations actually qualify), both attorneys have to appear, which is a 1-4 hour ordeal in court. So that would be $700-$2800 total for the two attorneys. And, don’t forget, there’s the hearing after that since the ex-parte orders are only until the full matter on that issue can be heard.
Assuming no ex-parte, both attorneys and their clients will show up to the hearing where theirs will be one of approximately 30 cases on calendar that day. They could spend the entire day in court waiting for the hearing, or get ordered back if the judge does not have time to hear the matter. That’s 8 hours at 350 for each attorney = $5,600. Plus the prep work done earlier: $8,400 (assuming no ex-parte), for one motion. If there was an ex-parte, add another $350-$2,400 to that figure. And this is a conservative figure. Financial disclosures often take 3 hours or more in and of themselves.
Now, let’s compare how it would look if the attorney would have called the other attorney to discuss the issue first. One 5 minute phone call to schedule the meeting and then a one hour conference to see if there’s a way to resolve = $385 per attorney = $770 total. Compare that to the $8,400+, it seems like a no-brainer, economically. And think of the potential for resolution!
Even if you don’t resolve, doesn’t it make more sense to try? Especially if you or your attorney haven’t even spoken to the other attorney? Why assume hostility and combativeness? To my simple mind, it seems well worth the effort to at least see if there is a chance at resolution. Especially if you learn or know that the other attorney is a peacemaker and has, in fact, already invited you to discuss the items in need of resolution.
As professionals, we all strive to do what we feel is in our client’s best interests. I just don’t think charging into battle without even an effort at negotiations does that. There is, of course, always an exception, like when personal safety is the concern. But that should be the exception, not the norm for ALL issues.
As a follow up to this post: the issue was resolved about 1 week before the hearing date and the moving attorney refused to take the matter off calendar. As a result, both parties had to appear with their attorneys and now the non-moving party is asking for attorney's fees. They have another court hearing scheduled for that motion. Absolute madness!