Pyrrhic Victories and the Cost of Family Law Litigation

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MONDAY, AUGUST 26, 2019 PERSPECTIVE Pyrrhic victories and the cost of family law litigation

By Scott M. Gordon next evolution, but that is where “One more such victory they should be looking. It has been said that it is hard to write and we are undone.” the next chapter of your life if — Pyrrhus of Eprius you keep re-reading the last one. Unfortunately, many family pirus was a region be- law litigants approach their case tween what is now Greece like they are playing out a scene Eand Albania. It is a rugged from an old Three Stooges movie and mountainous place made up using that pie they are trying to of the Pindus Mountains and jag- divide as a weapon. While there is ged ridges of the Dinaric Alps. a deep and immediate satisfaction According to Greek mythology, in seeing the object of your ire Eperios was the daughter of two with a face full of pie, you are in of the demi-gods that populated the end, just left with a mess and the Pantheon. Her brother Pen- no more pie. The cost of litigation theus was slain after angering Shutterstock must be considered throughout Dionysus, the God of Wine. Epe- the case. Family law lawyers are rios died while helping carry the In many, if not most cases, the primary issue is called upon to do very demand- body of her slain brother through ing and technical work. The trac- the mountains and she was bur- how to divide those same resources that will be ing of an asset or valuation of a ied in a small thicket that later used to fund the case. In other words, the pie business is time consuming work became sacred. The surrounding being divided will become smaller and smaller as that requires a methodical and de- country was named after her. Life tailed approach. This is resource in this tough land created tough the conflict goes on and until they find themselves intensive work. hard scrabble people. This land like the victorious but depleted Pyrrhus. So, what are the options to give rise to fierce warriors, it is ending up with nothing but pie the derivation of a term still used in the face? Some inspiration today, “Pyrrhic victory.” can be taken from the legendary So how is a remote region of in the Battle of Heraclea in 280 be ruined.” (Plutarch, “Parallel Yankee’s catcher Yogi Berra who Ancient Greece relevant to the BCE. It was a fierce and bloody Lives: Pyrrhus”) said: “You better cut the pizza modern practice of family law? It battle. The Greek historian, Di- Like King Pyrrhus and the Ro- in four pieces because I’m not comes down to one of the ancient onysius, reported that the dead mans, most family law litigants hungry enough to eat six.” When kings of the region, Pyrrhus I (319 included: 15,000 Romans and come to the dispute with limited family law litigants spend their BCE–272 BCE). Pyrrhus was a 13,000 Epirot. Many of Pyrrhus’ resources. In many, if not most time talking about how to divide gifted general and statesman. He best troops and his most trusted cases, the primary issue is how to the pie instead of throwing it, a rose to become the young king of friends and generals were lost. divide those same resources that better outcome is reached, and the hard land of Epirus and was The next meeting of the Ro- will be used to fund the case. In they can divide the pieces howev- a strong opponent of the growing mans and Epirots was in 279 other words, the pie being divided er they want — even if the result and expanding state of Rome. BCE at the Battle of Asculum. will become smaller and smaller is not conventional. In 280 BCE, Pyrrhus entered Pyrrhus again defeated the Ro- as the conflict goes on and until The ancient histories note that Italy in pursuit of the Roman mans, but it was a costly victory. they find themselves like the vic- negotiations and settlement talks legions. His army consisted of In the end, the Romans lost 6,000 torious but depleted Pyrrhus. In occurred between Pyrrhus and 20,000 infantry, 3,000 cavalry, legionnaires. Pyrrhus lost 3,500 so many cases, the litigants take the Romans. After the Battle of 2,000 archers, 500 slingers and troops including many of his of- the short view focusing on the Heraclea, Pyrrhus held a number 20 war elephants. Through some ficers. It was after his victory at specific issue before them with- of Roman troops as prisoners. brilliant strategy, Pyrrhus was Asculum, Pyrrhus famously said: out considering the end game. It Instead of acting harshly against able, as unlikely as it seemed, to “If we are victorious in one more is hard for litigants going through them, Pyrrhus offered the prison- defeat the vast Roman legions battle with the Romans, we shall a dissolution to focus on their ers gold to join his army and be Mediation gives flexibility in family law cases replacements for some of his lost ticipant in the negotiation. The have some bad facts. Something his defeat of the Romans, he was troops. But, the offer of a bribe so reaction Pyrrhus had to the rejec- they wish was not in the case and involved in a battle in the city of offended the Romans’ sensibil- tion of his offer, provides great may in fact harm their side. In Argos. He was locked in a fierce ities that they rejected the offers insight. He was not offended by litigation, a great deal of effort is battle on a crowded city street out of hand. Out of respect for the the rebuke of his offer. Instead, expended in trying to shield that against an Argive soldier. The intrepid Roman soldiers and in an the Greek king made another information and those facts. But soldier’s elderly mother looked attempt to further his attempts to try using a different tactic. The in most every case, they come down from the roof top of her find a peaceful settlement, Pyr- refusal of an offer is not the end out — and the later — the more home to see her son about to be rhus released the prisoners to the of the process. It is a step on the harmful they will be. When par- the next victim of the warrior Roman commanders and again way to resolution as long as the ties embrace those facts and get king. She pried a tile off the roof sued for peace. The requests rejection is looked at in context them out in the negotiation — and sent it flying toward her son’s were rejected. It is reported that and the lessons learned are taken where they will appear anyway, attacker. Above the din of the bat- the Romans would not consider into account in the next step of and in most cases will have much tle, the sound of the tile finding peace unless the Greeks left the the process. less impact. its mark could be heard. King Italian peninsula. Just before the Battle of Ascu- Using negotiation and media- Pyrrhus was knocked from his There are lessons here for those lum, the Roman Consoul, Fabri- tion in cases gives the parties the horse and killed. If only he had of us involved in family law cas- cius, was approached with a letter most flexibility and opportunity settled with the Romans. es. Offers are creatures of con- from Pyrrhus’ personal doctor. for creativity in disposition. Go- text. What may seem a fair and In the letter, the doctor offered ing back to Yogi Berra’s pizza, Scott M. Gordon, a retired judge generous offer viewed through to poison the King of Epirus to in a negotiation, the parties can of the Los Angeles County Supe- the prism of the person making spare Rome from further harm. carve to pizza up into as many rior Court, is a mediator and ar- the offer can be viewed an insult The doctor asked for a reward in pieces as they like, and in what- bitrator at Signature Resolution. to the person receiving the offer. proportion to the service to Rome. ever shape they want (although Understanding context means Fabricius was so offended by the Yogi’s New York fans might have taking a 360-degree view of the offer, that he sent a letter to his trouble with that — remember negotiation. Just like a pebble hit- enemy warning of the treason and context). Once they get to trial, ting water, every offer, counter- plot. Pyrrhus, in acknowledge- the judge will have fewer options offer and position in a mediation ment, released Roman prisoners and choices to resolve the mat- will ripple in all directions. without any request for ransom ter. Those choices that may have For those with a single linear and sent an emissary to negotiate been so important to the litigants focus, this means missing out on peace. Unfortunately, the efforts just won’t be available in trial. most of what is happening around to find acceptable terms of peace So how are roof tiles involved? them. Every term must be viewed were rejected by the Romans. They deal with how King Pyr- from the perspective each par- In every case, each side will rhus left this world. Shortly after