Transcript: How Empathy Contributes to a Family Lawyer’s Success
My name is Diana Shepherd, and I’m the Editorial Director of Family Lawyer Magazine. My guest today is international family law attorney Christopher Melcher, and we will be discussing how “How Empathy Contributes to a Family Lawyer’s Success.” A Fellow of the American Academy of Matrimonial Lawyers, Chris is also an adjunct professor of family law at Pepperdine University School of Law in Malibu.
All family lawyers have had clients who resist words like “compromise” or “settlement,” essentially saying that their goal is to make their ex suffer more than they are suffering. How do you move that client from a hill they’re prepared to die on to recognizing a good deal when it comes their way? Chris has some tried-and-tested strategies to share with you today, so let’s get started.
Christopher Melcher: Thanks for having me, Diana. It’s such an important topic that we don’t talk about a lot as family lawyers. Many lawyers don’t even think about having empathy, especially for the other side. That’s like treasonous talk. That’s why this is a great thing for us family lawyers to be talking about and implementing in our practice.
When most people think of an empathetic professional in the context of divorce, they probably think of mental-health professionals, counselors, and perhaps divorce coaches. Is it possible to be a truly empathetic family lawyer without burning out – or at least losing perspective and objectivity about the client and/or case?
What you’re getting at is the difference between empathy and sympathy. It took me a while to understand the difference, and there are pretty large differences between those terms. Sympathy is using your own experience to feel sorry for somebody else: you’re relating with them based on your own personal experience. Empathy is objective: you’re trying to put yourself in their shoes. Whether you’ve gone through similar experiences or not doesn’t matter. It’s the exercise of trying to see the problem from their perspective.
I have seen family lawyers burn out. Burning out is easy if you make the mistake of treating your client’s problem as your problem. We are hired to assist our clients through a difficult time in their life and to get them through a case, but we’re not there to take on their personal problems. Lawyers that do that are failing the client and failing themselves. We can’t help them if we feel sorry for them or if we relate too much to them. We need to be objective so that we can give them the advice they need. If we take on or internalize all of their hard problems along with our own, we are going to burn out. We are going to suffer. If we’re not healthy mentally and physically, we are not going to be the best that we can be for the client.
I’m talking about empathy, which is an objective process of putting myself in the shoes of the other side and putting myself in the shoes of my client so that I can understand the problem from their perspective. Once I understand the problem from their perspective, I can start working on it. There’s no risk of burning out when you do that because you’re not taking on their problems – you’re just trying to understand what it is.
Can you tell us how you came to the realization that empathy could actually make you a more successful family lawyer?
A lot of times people fight for years in divorce court. They spend all the money that they have using lawyers to fight, and they harm their family in the process. When we boil it down, they may not even be fighting about anything tangible – or the costs that they’ve spent to fight exceeded whatever it was that they were fighting over.
That’s what got me to think about what is driving these disputes. As a lawyer, especially a young lawyer, you might think of this as, “Well, they’re fighting over a house,” and that’s one dimensional. We need to step back, look at it, and think about what is driving this dispute. What is the source of this conflict? Is it just trying to figure out what the house is worth and who’s going to wind up with it, or who’s going to be the listing agent? Is that the issue?
A lot of lawyers will focus on those very concrete things without ever stepping back and asking, “Why are they fighting over who the real estate agent is? Why are they fighting over whether it’s worth $10,000 more or less? That doesn’t make any sense!” Once we understand that there’s something greater driving it, we can then use an empathetic process to help identify what exactly they are upset about.
It may be that one spouse had no control during the marriage; they may have surrendered it to the other spouse, or the other spouse took that control from them. Now that they’re separated, they feel powerful because they have a lawyer advocating for them in a court process that’s very expensive and time-consuming. Maybe they just want to exercise control. Or, the other side may want to continue to assert their control with these micro-decisions that don’t make any difference.
Are they fighting over what they’re talking about in the court papers, or is something else going on? Once I understand the source of the conflict, then I can start addressing it. I’m not doing mental health here – I’m doing problem-solving. Once I know what they’re really fighting about, I can offer options to resolve the dispute to my client.
I once had a family lawyer tell me that after more than five years and literally millions of dollars in litigation, it came down to a set of bath towels – and that was the hill that both of them were going to die on. From what you’ve been saying, it clearly wasn’t about the bath towels – they were symbolic of whatever it was they needed to hang onto to say, “Yes, I won.”
Nobody wins these things. You can’t “win” a family law case. It’s more about how the other side didn’t win, and that the relationship wounds that caused them to break up are now manifesting in divorce court. I try to explain what I can and can’t do to my clients. What I can do as a divorce lawyer and what a judge can do as a family law judicial officer are extraordinarily limited. We cannot change people. We don’t make people better through this process. We don’t declare: “You’re the good person and your spouse is the evil one.” None of that is possible. All we can do is make orders dividing property and time with children.
We don’t declare who’s good or bad. It’s important for lawyers to articulate this so clients can understand it; many times, this is the first time a client has gone through a divorce, and they just don’t know. Many people think that they’re going to get to a hearing where somebody’s going to say, “You are pure and you have been taken advantage of, and your ex-partner is evil.” That never happens. I’m very direct about that. I tell clients that I have a very limited role in their lives; I tell them what I can and can’t do, and that helps with the process of moving forward.
Divorce is an emotional roller-coaster for those going through it. Fear, anger, grief, and depression are not optimal for making life-altering decisions. We know that most lawyers like to offer solutions; what should you do when a client isn’t emotionally ready to hear solutions – even if you think they’re the best solutions you’ve ever created?
It starts with listening. This is a problem that I had when I was younger. As someone who wanted to dive in and start offering assistance, I would say, “Well, here it is. You just file this form, you go to court, you make this argument, and then you get your result.” But they’re not ready to hear that advice right off the bat.
If they’ve been through this before, they’ll say, “I just want to know what the steps are.” But for most people, you need to develop rapport with them. You need to listen to them and make a connection so that you understand where they’re coming from. When they feel understood, you can start offering solutions.
One of the first things I ask in the initial client interview is, “How can I help you?” That’s my lead-off question, even though I already have information from the intake process before I ever get on the phone or video call with them. I know what their legal problem is. But the legal problem is easy. We could figure it out between two lawyers in moments. This is about the personal aspects of it, and that’s why I start with, “How can I help you?” If they are super direct and say, “I just need to know the steps and forms that are needed to get a divorce,” then I know this person is after mechanical information.
If they say, “Oh my God, I’ve been mistreated my whole marriage!” then I know I’m going to have to listen to this person to develop a connection with them because they’re leading with an emotional point. Leading with emotion tells me that they’re not ready – we have to give them space and time to be ready to move forward with the divorce.
I use a listening technique in which I acknowledge hearing what the client said, then repeat it back to them to show that I understood them, then I say, “Now, will you listen to me?” Usually, they’ll say okay, and then I can tell them what I can and can’t do for them. Once they understand that, we can focus on what we can accomplish and move forward.
There are people that, even after that process, are still not ready to go forth. If the two attorneys have a collegial relationship, they can agree that this isn’t the right time to push forward – they should step back a little bit and let things evolve.
There are also times in divorce cases when we can’t wait forever. People need to move on, but their property hasn’t been divided and we need custody orders or parenting plans. At some point, the court is going to move forward whether the clients are ready or not. We want to get to consensual solutions if we can because those are lasting – as opposed to the ones that are forced on people, which they’re going to try to get out of every which way afterward.
You mentioned that you had empathy not only for your client but also for their soon-to-be ex? How – and why – do you accomplish this?
It’s important for me to understand the other side’s position, what’s driving it, and what they want out of it. I need to know these things for a couple of reasons, and they’re all for the benefit of my client. I’m not doing this because I care about or want to help the other side: I’m trying to help my client. If I understand in clear terms what the other side needs and wants, that’ll help me form a settlement proposal that would be attractive to that other side rather than wasting time doing some offer that’s never going to be acceptable because I haven’t addressed their needs.
Also, if I understand what’s driving the other side and we have to go to court, I can often create a successful strategy because I understand where the other side is coming from. That’ll tell me where they’re going, so I can perhaps predict what their steps are going to be.
People want to be heard. That’s what I’ve seen in court. I had one case we could not settle despite our best efforts, so we went to court. The lady on the other side came with a prepared speech, and the judge initially said, “No, you have a lawyer – you can’t just give a speech.” But then he let her read it into the record: 20 minutes about all the bad things her spouse had done. The judge said, “Thank you. I’ve heard everything you’ve said.” She was fine with the outcome that we had predicted because she felt heard. She had her day in court. The money that was at stake didn’t matter to her.
If we identify that’s what’s going on, then we give them the stage. We let them have their day in court. We let them say their piece. Maybe it’ll have an effect on the court; maybe it won’t. But by denying them the opportunity, we are extending the case, and now they’re just going to fight over a small amount of money because they weren’t heard.
Family law litigation is very polarizing for most couples; how do your clients react to your showing empathy for their exes?
Initially, most clients are not going to understand this process at all. They’re going to say, “Look, I hired you to be aggressive and to fight, and now you’re billing me to talk to my ex?! Why do you care what they want?! Whose side are you on?!” Before I start the process, I’ll ask open-ended questions, like, “What’s your goal?” Open-ended questions are super important because the client may say, “I want my day in court,” or “I want the judge to understand how horrible this other person is.” Then I can tell the client that we probably can’t accomplish that.
The other question that I ask is, “How do you see this going?” If I have to tell my client that no one is going to believe them, or that the judge is going to believe the other side, they’ll think I’m weak, that I don’t understand and that I haven’t listened to them. But if I ask the open-ended question about how they see it going, a lot of times the client will say, “My spouse is a charmer. My spouse knows exactly what to say and is very convincing. I predict that the judge is probably going to believe my spouse and we’re never going to get to prove this stuff and we may lose on this issue.” Now I’ve got them saying it rather than me.
I go through this process to better understand what the other side is going to be talking about. Once they understand my approach, I can get my client’s buy-in to do it.
How do you maintain your own boundaries when you’re empathizing with your clients? Have you ever lost your objectivity because of that? Earlier, you gave us the differentiation between empathy and sympathy – but have you ever lost your objectivity?
I hope not! I started my practice in criminal defense. My clients were in custody, so there was a glass wall between us. That forced a separation between me and them. I do the same thing with clients now, except it’s a pretend glass wall. I can’t help them if I lose objectivity, so I remind myself that these are not my problems.
I view myself as a highly paid janitor: I am paid to clean up their messes, and many times they’re creating other messes as I try to clean up the first one.
That was very frustrating to me as I embarked on this career: to put a lot of time and effort into addressing problems in a family law case only to see that the client made it worse. I did get mad at a couple of clients for doing that. “I spent time on a weekend away from my own kid to help you get your kid back and now you just kidnapped your kid or did something horrible.”
Through the process of being upset and disappointed, I started to look at myself as a janitor: if you’re going to get upset because you mopped the floor and then tomorrow the floor is dirty again, you’re going to lose your mind. That’s not going to be a good career for you. Instead, you must think, “I’m happy to clean this floor every night and have them mess it up every day. I’m happy that I’ll always have a job.” That’s the way I’ve approached my practice, and it’s been healthy for me because I want people to go on in peace and not have future problems, but that’s totally unrealistic in some cases. If people want to pay my rate to help them, I’m happy to do it. If they mess their lives up again, that’s their choice.
Can you represent a client you don’t like – and perhaps actively dislike? Does empathy help you work with a “client from hell”, or are there other strategies you use for that kind of client?
This is such a hard one, and I’m still working on it because some clients seem to be just awful. I can’t relate to them. They’re unkind, difficult people to work with. Initially, I put the fault on myself. If I have these feelings about the client, I take responsibility by saying, “I just don’t understand them. I have not taken the time to make a connection with them. I need to do more to build a relationship with them. Maybe not do emails – I need to meet them in person. Initially, I’m going to take responsibility and say, “No, they’re not awful. I just haven’t got to understand them or build trust and rapport with them.”
After I’ve done the work to empathize and understand them, if it’s still an awful relationship, I will be direct and tell them that it’s not a good fit. “We are not getting along. We should not be fighting with each other. We should be fighting with the other side. It seems like we’re spending a lot of time fighting, and it seems like you don’t trust me, or you don’t think that I’m the right lawyer for you. I want you to have the absolute best representation in the world and I don’t think I’m that person. I want you to hire somebody else.” Usually, that’s when they want me even more, which is weird.
I don’t need the work at this stage, and I want to enjoy what I do. Most of my clients are wonderful people and I like getting to know them. I’ve kept in touch with them for many, many years afterward and consider them friends after the case is over. If it’s not going well, then we need to change: either build that trust and relationship or break up the professional relationship.
Can you offer a few tips to your fellow lawyers to develop their empathy and active listening skills?
Many of us go wrong when we are under a lot of time pressure and we want to get our advice out there quickly. People are paying us a lot of money, so we don’t want to waste their time. We have a lot of information to share on the legal/technical side of things. A lot of the lawyers just dive into their toolbox and start trying to fix it.
We must slow the process down because we’re not going to fix anything unless we truly diagnose the problem. I suggest using these open-ended questions:
• How can I help you?
• What is your goal?
• How do you see this turning out?
Those are brilliant questions because there’s no judgment at all around them. They let the client talk and you listen. You’re going to learn so much! When a client feels heard, they will usually be ready to hear your advice.
Then I do the same thing with the other side. During the initial call with opposing counsel, I ask: “How can I help you? How can I assist you in representing your client and moving this case forward?” It’s disarming because they usually think it’s going to be a confrontational call. Having the empathetic process, excellent listening skills, and not giving advice until people are ready to hear it allows us to move forward much better in our professional relationships with clients.
Do you have any final words of wisdom for your family law colleagues?
Remaining objective is super important. I don’t know why some attorneys seem to think that these cases are about them. They feel that the cases are highly personalized, and that whatever happened between the clients is somehow an affront personally to them. I try my best not to do that. I avoid making accusations against the other side because I wasn’t a witness to any of it – I don’t know firsthand what happened. I try not to write letters that are accusatory or claim knowledge of things that I don’t know firsthand.
Finally, we’re in this together. We have relationships with our family law colleagues, and we’re going to handle cases for years to come – so don’t burn a good working relationship for one client. I can be an aggressive, assertive lawyer trying to represent my client the best I can, but never in a destructive way.
Thank you, Chris, for talking to us today about how empathy contributes to a family lawyer’s success.
Thanks, Diana. My pleasure.
My guest today has been Christopher Melcher, a partner at Walzer Melcher LLP in southern California. Chris has presented about 200 continuing legal education programs to other attorneys on complex family law issues. He is a published author in California premarital agreements and financial issues in divorce, and he wrote the only treatise on California premarital agreement law. To learn more about Chris, and to read some of the articles he’s written, please visit his firm’s website at walzermelcher.com
Family Lawyers and Emotional Intelligence
Do emotional intelligence and family lawyers go hand in hand? Being a successful lawyer isn’t always about winning cases: it’s about being an effective and compassionate human being.
Identifying High Conflict Cases from the Start
Identifying high conflict cases early in the process can lead to positive outcomes for the parties while reducing the chaos, stress, and risk for the professionals involved.
The Value of Business Coaching for Family Lawyers
A coach helps you learn how to learn, enabling you to conquer the challenges of business more adeptly each time one occurs.