Return to Answer

So should you ever say “split the baby?” Sure. Here are two examples:

• The court grants your oppressive motion to compel, but makes discovery mutual, and you then negotiate a reasonable scope for discovery, or
• The court issues a final judgment that is adverse to both parties, so you settle the case.

In those situations, the court’s orders force the parties to reveal information—how much discovery was really needed and what the parties were willing to settle for—that the court couldn’t determine itself.

But if you’re just describing a compromise, do our profession [Law] a favor and use “split the difference.” It is a much better option.

So should you ever say “split the baby?” Sure. Here are two examples:

• The court grants your oppressive motion to compel, but makes discovery mutual, and you then negotiate a reasonable scope for discovery, or
• The court issues a final judgment that is adverse to both parties, so you settle the case.

In those situations, the court’s orders force the parties to reveal information—how much discovery was really needed and what the parties were willing to settle for—that the court couldn’t determine itself.

But if you’re just describing a compromise, do our profession a favor and use “split the difference.” It is a much better option.

Observe that all of these examples have some connotation that “splitting the baby” is bad for both sides: “a very undesirable result,” “an unreasonable decision [...] actually a ploy,” “merely to get the dispute resolved to avoid incurring further costs,” etc.

An example that’s literally about awarding joint custody of children:

An example that’s literally about determining who gets custody of small children:

One person who says that he thinks the term should only be used in situations like you asked about, but also says that’s not how American lawyers do commonly use it:

This is where we get the term “splitting the baby.” It references the equitable act of giving some to each side. [...] While we often say we want to split the baby, do we really like such a result?

An example that’s literally about awarding joint custody of children:

This is where we get the term “splitting the baby.” It references the equitable act of giving some to each side. However, is splitting the baby the proper way we should consider custody cases? [...] While we often say we want to split the baby, do we really like such a result?