Cutting Your Losses
As many of you know, I am a volunteer firefighter. Over the years I have found that periodically my legal training and experience offers lessons for the fire service and conversely my fire service training and experience offer lessons for the practice of law.
One of these fire service lessons that has helped me approach the practice of law is one about cutting your losses.
On December 3, 1999, firefighters in Worcester, Massachusetts, were fighting a fire in the Worcester Cold Storage Building when two firefighters became lost on the upper floors of the building. Other firefighters began searching for these firefighters as conditions in the building deteriorated. Eventually, the Incident Commander, District Chief Mike McNamee, ordered all firefighters to evacuate the building. Conditions were getting too dangerous and the chances of finding the two lost firefighters alive were very slim.
As the firefighters evacuated the building it was determined that four more firefighters were lost in the building. More firefighters were ready to go back into the building to look for their six missing brothers when McNamee said “no more”. He then put his arms up and spread his legs to make an X of his body to block the door physically to keep firefighters from getting past him. He shouted to the frustrated firefighters “We’ve already lost six. We’re not going to lose any more.”
Those six firefighters died. But no more men were lost that night because District Chief McNamee had the courage to make a hard choice. Instead of taking unjustifiable risks to try to save what obviously was lost, he made a very wise decision and cut his losses.
When parties get caught up on the fray of matrimonial litigation they easily can get caught up in the moment and make short-sighted decisions and fight over what obviously is lost. With attorneys charging $250 to $350 per hour, fighting over a few hundred dollars or even a few thousand dollars is wasteful. The legal bills likely will exceed the amount in controversy; no one is going to win then.
When I am confronted with a situation like this, where the math just does not work, I will tell my clients that they should stop the litigation because to continue to fight will only cost them more money than a settlement will.
Although these decisions are not life and death matters like what confronted District Chief McNamee, the divorce process is very traumatic to litigants and stopping and saying “We’re not going to lose any more” is not always easy for them to do. Sometimes it is not easy for attorneys to do either. But the nature of this line of work and the nature of matrimonial litigation is to make hard decisions. The alternative is to have a judge make decisions for the parties and both parties paying their attorneys in the process. From experience I can say that in divorces, it is rare that anyone wins when this happens.