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By Charles F. Vuotto, Jr., Esq.
I am sure that the following situation has happened to many of us: we are in the throes of negotiations, making progress, and have the issues just about resolved. We just need a little more time. But, we have a trial date scheduled for the next day or soon thereafter. The parties do not wish to derail their progress in settlement or waste time and money with a court appearance. They want to continue working in the relative comfort of one of their offices or the office of a mediator. Often, they need the mediator to help them to get across the finish line. The lawyers agree that they should concentrate on trying to resolve the case rather than going to court, so the lawyers advise the judge that the matter is “almost settled” and that they just need a little time to achieve a signed agreement. How many of us have received the following response (or something like it) from the trial judge or his/her staff:
The trial will not be adjourned. This matter is an old case. Either advise the court that the matter is resolved and be prepared to come in to put it through with a signed agreement or be ready to start trial.
This judicial response appears to contrast the needs, wants, and desires of the parties to place their signature on a mutually acceptable agreement and proceed with an uncontested hearing. At such hearings, we typically ask our clients if they entered into their agreement voluntarily, under no compulsion, coercion or threat. However, when a judge says “settle now or set up for a trial” isn’t that forcing litigants to abandon a productive settlement process, pull up stakes and head to the courthouse, usually losing the mediator or neutral third party helping them settle, not to mention incurring unnecessary fees?
As we know, most cases are settled. There were 28,582 dispositions of new cases last year. There were 60,829 in total dispositions, which represents 47% of the cases that were new while 53% were post judgement (motions). Of new cases 27% (7,834) were disposed by settlement, 56% (16,020) by default judgement, 13% (3,745) by dismissal, and 112 were transferred. These numbers vary by county but have been stable for some time.[i] These statistics support the commonly held belief that less than 2% of cases are resolved by trial. One can draw the conclusion that these statistics means that the best way to resolve a case (excluding default, dismissals or transfers) is through the settlement process. Why, then, are we often forced to abandon that process when both counsel believe it should continue? Yes, we all understand that being called to the courthouse, forced into an uncomfortable environment, spending money on attorneys and having the trial judge a few feet away puts pressure on litigants to settle. However, is this always appropriate? It may be when a judge finds that the parties and/or counsel in a particular case have not made good faith efforts at settlement. However, this should not be assumed in every case.
Another problem arises when an attorney has a settled case, but the actual agreement has not yet been finalized or signed. This situation too presents issues. Some courts are requiring the submission of a signed agreement before they will list the matter as settled. I remember the days when all that was required to obtain an uncontested hearing date was to advise the court that you and your adversary had reached an agreement. There were usually no further requirements, a signed agreement did not need to be submitted and there was no risk of severe adverse consequences if for some reason, due to unforeseen circumstances, the settlement fell through between the date that the court was advised of the settled case and the actual court date. Things appear to have changed.
Some courts are requiring the submission of a signed agreement before the matter will be listed for an uncontested hearing. Some judges have become very irate in the event they are advised of a settled case that does not ultimately materialize. Without question it is preferable for the parties to be as sure as possible that the matter is settled before advising the court of said settlement. Further, if something does happen, it is certainly incumbent upon counsel to advise the court as soon as possible. Counsel who fail to do so should be called to task. However, should it be routinely required for counsel to submit a fully signed Marital Settlement Agreement (“MSA”) before a matter is listed for an uncontested hearing? What if the parties have agreed, for confidentiality reasons, to keep the MSA out of the Court’s file? Should counsel be excoriated should something happen between the date that they advise the court in good faith that a settlement exists and the scheduled court appearance?
There is no question that attorneys, for the most part, attempt to settle their cases. However, in this writer’s humble opinion, in those rare cases where attorneys report the resolution of a case in good faith and something happens between then and the date they are to report to court, they should not face the wrath of the trial court nor be required to submit a signed agreement before requesting the scheduling of an uncontested divorce hearing. Further, when two attorneys advise the court in good faith that they need more time to bring the matter to a close, deference should be given to them by a judge unless past behavior of said attorneys (or their clients) suggests a different response.
Although it is understandable that a trial court could react adversely and become annoyed when attorneys repeatedly advise that they are near the finish line and need more time or advise that a previously reported settled case has fallen through. However, it is also true that forcing litigants to court when they almost have the case resolved or requiring the submission of signed agreements as a pre-condition to obtaining an uncontested hearing date and being threatened with the wrath of a judge should a possibly settled case fall through, will put a damper on the resolution of cases. Such procedures may lead to claims of coercion by the court system itself.
The author wishes to thank Harry T. Cassidy, retired Assistant Director of the AOC, for his assistance and input with this column.
This article was originally published within the New Jersey Family Lawyer (38 NJFL 1__ (October 2017)) and is being republished herein with permission of the New Jersey State Bar Association.
[i] Statistics from the NJ Administrative Office of the Courts, Family Practice Division, Dissolution Terminations Court Year 2016