Rule Four: Make Full Disclosure Voluntarily and Freely
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Ask yourself: Are you more likely to settle a case where the other side has given you everything you need voluntarily, freely and openly or where they stonewall discovery? The answer is obvious. Where the other side treats financial information as if it were a highly classified government secret, it makes settlement less likely. This tactic brings out the "What are they trying to hide?" question. This sort of mistrust is not conducive to settlement.
Further, there is always the ugly aspect of risking malpractice in recommending a settlement to a client based upon insufficient discovery information. If a lawyer does not believe that he or she has full disclosure, it is the lawyer’s insurance on the line if the lawyer recommends a settlement. Many a lawyer will recommend a trial rather than a settlement to avoid such a risk.
On the other hand, here is a tactic which my office has used with great success in encouraging settlement: Where you represent the side with all the information, give it to the other side before they ask for it. After all, you know what they will need in order to settle the case. Instead of waiting for the initial request for tax returns, retirement plan information and the like, have your client compile it. Then, give it to the other side, organized and indexed. Tell the other side that you are doing it to promote an atmosphere for settlement and to save costs for both parties. You should also explain that the information is not exclusive and that your client will be pleased to also provide any additional relevant information which you might have inadvertently omitted.
By providing this information even before a request is made, you will have accomplished at least two positive things. First, if any court intervention is requested by the other side regarding discovery, the court will be impressed by the voluntary provision of large amounts of financial documentation. At least in my jurisdiction, family courts dislike discovery motions and routinely order everything to be provided unless absolutely outrageous. Second, and more important, providing the information voluntarily creates the type of atmosphere which allows opposing counsel to enter into settlement negotiations without the paranoia inherent in the cases where the stonewall approach is used.
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