Exploring Best, Worst, and Most Likely Outcomes
When helping clients to reach a fair and equitable (and acceptable) resolution of their divorces, sometimes it is important for them to understand their best, worst, and most likely outcomes in court. This way they can make informed decisions regarding their divorce. BATNA is the Best Alternative to a Negotiated Agreement or the best for which we can hope if negotiations are unsuccessful. WATNA is the Worst Alternative to a Negotiated Agreement or the worst possible outcome we can realistically fear.
In collaborative practice, we aim for a resolution that is as close to each client’s best case scenario as possible. We do this by asking the clients early in the process to identify their goals and interests, and then to rank them by importance. We remind the clients throughout the process of their goals and interests so that they stay focused on them as they negotiate, rather than getting sidetracked by unconstructive obstacles.
The same cannot be said when a party litigates. Because of the unpredictability of the court system, a client always risks receiving a WATNA judgment when litigating. Additionally, litigators are focused on “winning” their client’s case, rather than on guiding them towards an outcome that is truly close to their desires.
When discussing BATNA, WATNA, and most likely outcomes, it may be hard not to discuss the law. Many collaborative attorneys do not feel that the collaborative process is the place to discuss what would happen in court. I myself am known for telling clients who ask me what the law would require or allow, “the law is your last resort.” When asked, I explain that the law is what the legislature decided would be the rule if the clients could not agree on the right result for them. As such, it is “the lowest common denominator.”
“Oh and” I always add, “one can never be sure what the judge thinks the law is.”
Others disagree and feel that it is legal malpractice not to discuss the law with clients.
Some clients, even collaborative clients, need to understand what might happen if they go to court. After all, they probably received information about the law as they interviewed attorneys. And they may have misunderstood that information or it may have been inaccurate.
Also, clients seek advice from their attorneys, and if collaborative attorneys dodge questions about the law, clients may lose faith in their attorneys’ abilities and trustworthiness. Therefore, when asked by a client what would happen in court, answer honestly.
However, depending on the client and the collaborative team, it may be appropriate for the attorney to first discuss with the other professionals how the attorneys will address questions about the law with their clients. It is good practice to have this conversation with the other professionals early in the process, during your initial professional meeting, so that the professionals understand each other’s views on how to handle the potential questions about the law which may eventually arise.
Depending on the client and the matter, a client may make a better-informed decision by exploring his best, worse, and most likely outcomes about whether a collaborative settlement is right for him.
About this week’s authors: Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, 2 of which she served as professor in law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.