Words are the tools of a lawyer.  Words can be used to persuade and convince.  Words can be used to build relationships or harm relationships.

Discounting is the label I give to words that harm relationships.  It means you show by your words you do not respect the other person or their opinions and beliefs.  In fact you disrespect them and have contempt for them.

You can listen to, and acknowledge, an opposing point of view without agreeing to it.  Or you can discount it.  Here is an example of discounting in a letter I received from an opposing counsel in a divorce case recently.

“Jim:  This needs to stop. You are doing a disservice to your client. This is beyond ridiculous. If your client would stop this nonsense, sign the agreement I sent last night she would get a check the next day and this would be done.  Instead, you are making changes that make no sense, conflict with each other and costing my client (not to mention yours) unnecessary fees.  I will be tied up all day Monday and will be leaving the office early, out of the office on Tuesday and am leaving at 5:30 today and have deadlines I have to meet before then.”

Divorce lawyers have to develop a fairly thick skin in the heated exchanges of a litigation practice.  But do you really think that a letter like this ever persuades anyone to do what you want them to do?  Our response was to file suit.  Discounting never works.  As the Good Book says, A kind word turneth away wrath.

What happens when an irresistible force meets an immovable object?  A lawyer makes a settlement proposal for a divorce client.  The other side sends back a counterproposal, which the client doesn’t like.

“What do you advise next?” asks the client.

“Send back another proposal with some concessions,” the lawyer says.

“What if I don’t want to make any concessions?”

“Then you are at an impasse.”

There are several ways to break an impasse.

(1)  Litigation. The ultimate way is to have a judge decide.  But this is expensive, time consuming and uncertain in outcome.

(2)  Keep Talking.  Explore other options to meet the needs of each party.  I have been in negotiations where a creative idea just seems to fall out on the table in the conversation that had not been there before.

(3)  Segment the Problem. Break the dispute down into separate smaller pieces and try to get agreements on one piece at a time until you have solved the whole problem.

(4)  Bring in an Expert. You can bring in an expert to help break an impasse such as a therapist for issues involving children or a financial planner for issues involving money.

(5)  Do Nothing. One option is to just do nothing until somebody blinks.  Sometimes I have told the parties, “You are twenty thousand dollars apart and it will cost you each ten thousand dollars to litigate this case.  Does anyone have any ideas?”  Then I sit in silence for a minute, two minutes, sometimes ten minutes, until finally someone says, “Well I’ll split the difference if you will.”

I’m not sure what I would say if Katie Couric asked me to name some Supreme Court decisions.

But an older lawyer once told me if the judge asks you for a citation, and you can’t think of anything, go to the colors.

Judge:  “What’s your authority, counselor?”

Lawyer:  “Uh, Judge, I think that’s the Green case.” (or the White case or the Brown case.)

If Sarah had said the Brown case, she would have had one right.  In Brown vs. the Board of Education, the Supreme Court held that segregation of public schools was unconstitutional.   And while a lawyer has to exercise candor with the court, there is no such restriction on a politician.

Here’s a question that I have always wondered about.  Which box do you check, single or divorced?  These forms should have a box like Facebook that says, “It’s complicated.”

Somebody proposed a one year rule to Judith Martin, who is Miss Manners.  She had this to say about it:

“DEAR MISS MANNERS: On a job application or any application, when does one check the divorce box versus the single one? I say you’re divorced for one year and check the divorced box, then you are to check the single box. One can’t be divorced forever. Some people with kids prefer to use the divorced box, but one should use the single box if they are single.

Gentle Reader: The rule you propose is better than the common practice, Miss Manners admits — the one by which a formerly married lady is called a divorcee forever, while the former husband immediately reverts to being a bachelor.

Still, you don’t get to make up the rules. Well, socially, you do. But even Miss Manners does not get to mess with legal terms. If you tire of being single and are asked your status on a marriage license application, she is afraid that you have to come clean.”