Ten ways attorneys can help their clients solve their family law issues without high-conflict maneuvers, the necessity for emergency hearings, incessant motions, and months of depositions.
Lisa DuFour and Carol Bailey, Family Lawyers
Clients need to know the likely outcomes of the parenting and financial issues based on statute and case law. It is much easier for a client if they know what is likely to happen at the beginning of a case rather than being surprised in court when the judge makes a ruling. It is more efficient to negotiate final settlements if the client knows the parameters of the possible outcomes at trial. Plus, it is easier for a family law client to hear unpleasant news from his or her attorney rather than a judicial officer.
Explain Alternatives to Full Litigation
Clients should know that there are ways to resolve their issues short of litigation and trial. Parties can participate in a collaborative law process or use early mediation to resolve their family law disputes. The parties can also jointly hire or consult with neutral financial and/or parenting experts. Explaining the alternatives to trial can bring a huge sense of relief to the client. Clients should know about these alternative processes so they can make informed choices. Often once the legal process starts, communication between the parties deteriorates quickly and the client has a hard time focusing on where they want to end up. Of course, those options may not be advisable if there has been domestic violence or other issues that would make a cooperative approach unworkable.
Do Not Involve Family Members
To be able to proceed in a civil manner, the family law attorney should limit declarations and involvement of grandparents, parents, and new romantic interests unless absolutely necessary. It is important for clients to understand that when we ask a family member to write a declaration or testify in court for our client, we are likely jeopardizing that person’s future relationship with the other spouse or partner, and as a result their relationship with the children when the children are with the other spouse or partner.
Discourage Revenge Tactics
Short term satisfaction from acts of revenge is a faulty foundation for long term happiness. Expressing negativity almost never results in improved relationships. You should tell your client that you do not engage in that type of law practice and they should find a different attorney if they want you to be extremely aggressive. In the end, a nasty client is often not appreciative of your time, effort, and work. It is best to withdraw if you and your client disagree on how to proceed and your client wants you to be a “shark.”
Take the High Road
One of the most difficult aspects of family law arises when the opposing party or their lawyer engages in high-conflict behavior, such as making insulting statements in court or in pleadings, involving the children, spewing misinformation to third parties, repeating unfounded accusations, providing details of indiscreet behavior to others, calling a person’s workplace, and/or not complying with court orders. The client’s first reaction might be to demand that the attorney make the opposing party or the other attorney stop or perhaps to retaliate by engaging in the same sort of behavior. It is always better to advise a client to “take the high road.” To reduce conflict and keep matters civil, the Family Law attorney should advise the client that those behaviors do not assist in settling their case and usually make things worse. In addition, those tactics and choices will greatly increase their attorney fees.
Do Not Use Extreme Statements or Call Names
In submitting statements to court, a civil attorney should ask their client to simply tell the court what the person did without all of the pejorative terms and then let the court draw the conclusion. Accusing someone of having “violent tendencies” when the person has never engaged in violent behavior is inflammatory.
Courts also find unpersuasive extreme statements, like calling someone a “liar” when there is no clear proof of this and stating opinions, such as saying “he doesn’t really care about our children” or “she is a psychopath.” Statements of medical diagnosis or conclusions by a nonmedical witness certainly will not be viewed sympathetically by the court.
Coaching clients to maintain a civilized tone in a Family Law case can reduce conflict between the parties and enhance your client’s image before the court. Again, focus on the facts and thoroughly explain the facts to the court without too many negative opinions, assessments and judgments.
Avoid Burdensome Requests for Discovery
By engaging in burdensome discovery, an attorney is incurring unnecessary costs, fostering excessive delay, antagonizing opposing counsel, increasing conflict between the parties and earning the displeasure of the court. These inappropriate tactics place the client, the attorney, and perhaps even the attorney’s law firm in danger of sanctions. See CR 11 and RPC 3.4(d).
Do Not Take the Client’s Case Personally
It is not about you. The client is paying you to know the law, uncover the facts, and represent their best interests. They are not paying you to become their best friend and console them over the loss of the relationship. Refer clients to counselors if needed and make sure they have some support outside of the legal system.
Develop a reputation for being civil. Other attorneys and judges do talk. Judges classify attorneys as either problem-solvers or problem-makers. Chose to be an ethical, civil problem-solver. Your clients will be more satisfied with the legal process which in turn will make your professional life much easier and more fulfilling.
Lisa DuFour and Carol Bailey Medwell are partners with Integrative Family Law in Seattle, WA. Both have presented CLEs and written numerous articles. Lisa is a member of AAML, a protem Family Law Commissioner, and has received a Super Lawyer award for the last five years. Carol is the founder of Integrative Family Law. She wrote the chapter on Civility in the Washington State Bar Association Family Law Deskbook. www.integrativefamilylaw.com.
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