Family Lawyer Magazine asked Judge Harvey Brownstone, who has been sitting on the family law bench for over a decade, to offer advice on how family lawyers can be more successful and better serve their clients. Judge Brownstone shared six outstanding tips with us.
By Josh D. Simon, Family Lawyer Magazine Contributing Writer
1: Know and respect your client’s emotional stage.
It’s rare that divorcing spouses are at the same emotional stage. It’s far more common – in fact, it’s the norm with very few exceptions – for one spouse to have emotionally disengaged from the marriage months, or even years before formal divorce proceedings begin.
And while it’s an overstatement to say that even the most emotionally prepared spouse is 100% ready for what the real divorce experience holds in store – with all of its uncertainties, stresses, procedures, complex children’s issues and of course, costs – it’s true that the spouse who initiates the divorce is almost always in much better shape to make key divorce decisions: what to do with the house, how to tie up the loose ends, and so on.
Family lawyers therefore do their client – and themselves, for that matter – an immense service by paying close attention to their client’s emotional stage. Are they emotionally disengaged, and therefore capable of seeing their divorce as a business transaction? Or are they reeling from having the “divorce bomb” dropped on them from above, and can’t separate the emotional issues from the practical ones?
If it’s the latter – and it’s not difficult for a perceptive, attentive family lawyer to quickly evaluate this – then my advice is clear: family lawyers should get their client into heavy duty counseling at the earliest possible opportunity.
Why? Obviously because their client is suffering deeply and perhaps even emotionally shattered, and attending to that serious problem ASAP is why professional counseling exists in the first place. But in addition to that, in the context of the divorce, family lawyers need to equip and empower their clients to separate the emotional issues from the business ones, so they can make wise, long-term decisions now — and not later, after the divorce is finalized, and when it’s too late.
I won’t suggest that counseling during divorce can totally heal clients – for most spouses divorce is traumatic, and it can take years for the healing to completely finish (if ever). But with that being said, counseling helps clients get to a point where they can make objective, well-considered decisions regarding their divorce. And frankly, that’s what clients want, that’s what their children want, that’s what judges want, that’s what family lawyers should want, too.
2: Know who you can’t work with.
The fraternity of family lawyers is, overall, close-knit and supportive for many reasons, including the fact that people who devote their professional lives to the field of family law are often called to it on a personal level. That kind of dedication helps people understand each other, even when they’re on opposite sides of a negotiating table or a courtroom. So yes, family lawyers argue, fight, try to out-manoeuvre, and do everything within the law to win for their clients — but they don’t lose respect for “the other side.” At least, that’s true most of the time. But not always.
Sometimes – not commonly, but I’ve seen it often enough — there are family lawyers who simply cannot work with certain other family lawyers. The reasons are irrelevant; it could be professional, personal or both. Family lawyers are human beings, and sometimes there’s a personality conflict. It happens. That’s reality.
But when family lawyers cannot communicate and cooperate on a professional level, it’s their clients who lose – and that’s not how it’s supposed to work. Indeed, I’ve seen family lawyers lose sight of their client’s dispute, and instead replace it with their personal dispute against opposing counsel.
Obviously, this affects client outcomes because opportunities to settle or, at least, clearly understand the other side’s position are overtaken by venomous volleys between family lawyers who — it must be admitted — may not even be aware how deeply they’ve substituted their client’s fight for their own. That is, some family lawyers may be telling themselves “I’m fighting hard for my client!” when it’s clear to everyone but them that they’re merely using their client’s problem as an opportunity to strike a blow at their rival or foe.
And the negative consequences of this go far beyond the specifics of a case. There are an increasing number of un-represented litigants in family court. When they look out from the gallery and see what some family lawyers do to each other, they come away with yet another reason why they will do everything possible not to hire a family lawyer – which is the exact opposite of what they should be doing! But who can blame them? When they see a verbal brawl break out between family lawyers who are obsessed with destroying each other, what incentive do they have to spend hundreds of dollars an hour to hire one?
So my advice on this is clear: family lawyers should have a list – call it a little “black book” – containing the names of colleagues who they simply cannot work with. I’d say there shouldn’t be more than five names on that list. If there are, then there’s probably more a problem with the list-maker than those on the list!
And then when a family lawyer engages a client during initial consultation, the very first question he or she should ask is: who is representing your spouse? If the answer received matches a name in the black book, that family lawyers should immediately say: I’m truly sorry, but I can’t take your case, as I don’t think I’ll be able to give you the representation you need in this matter.
That may seem like a dramatic step, but it’s the only way to keep everyone from losing — not just clients, but family lawyers, and the profession as a whole, too.
3: Take advantage of the remedies available in the family law rules.
There exist an abundance of remedies built within family law rules that family lawyers can and should use to advance their client’s interest, and to move the case forward. These include sanctions levied against the other party for not filing or failing to comply. There are also opportunities to proceed on an uncontested basis, strike pleadings, seek costs, ask for a summary judgement, and the list goes on.
From the bench, I’m stunned by how often family lawyers fail to avail themselves – and best serve their clients – by taking advantage of these remedies. If they did, their case could be resolved quickly and efficiently. But they don’t.
So that begs the question: why aren’t more family lawyers taking advantage of the remedies and options that are available to them? The answer is bleak. Some don’t know the remedies exist in the first place. And others can’t be bothered to put in the effort to research and then invoke them. Both of these “reasons” are, of course, completely unacceptable – but that doesn’t change anything. It happens and will continue to happen.
My advice to family lawyers is to get up to speed ASAP on the remedies available within family law, and learn how to apply them to advance their case. And if this sounds like blatant common sense and not even the kind of thing that should be called advice, then you know exactly how I feel, sitting on the bench, wondering the exact same thing with alarm, disappointment and pity for clients and their children who deserve better.
Continued in Part 2
Justice Brownstone has presided in criminal court, and since 2001 has presided exclusively in family court at the North Toronto Family Court. In addition to his role in the court and his work as an author, Justice Brownstone frequently comments on family law and divorce issues in the Canadian national media. He can also be seen on his public education talk show FAMILY MATTERS. Visit www.familymatterstv.com for more details.