Family law, like no other practice area of law, is fraught with emotion, tension, and discourse. After all, if the parties could get along and reach civil resolution, they would probably not need family law attorneys, right? But does the parties’ incivility have to pass along to the lawyer’s behavior toward one another? In fact, family law attorneys must work harder than lawyers in other practice areas to remain civil to each other because our duty as lawyers is to be a neutral voice of reason that sees beyond and above the emotion of the case.
Here are 10 suggestions a family law attorney can use to help the client remain civil in an emotional situation:
- Set reasonable expectations for the client – give clients an accurate assessment of the worst possible outcome and the best possible outcome for all of the issues in the case and help them to understand where their expectations may lie outside of those ranges.
- Explain the alternative to litigation – discuss with clients up front the downside to litigation, including the unretractable consequences of a contested trial, and suggest ways to resolve the case without going to those extremes. Discuss settlement possibilities, mediation, and other methods of resolution.
- Do not involve family members. Often ancillary parties can stir emotions and tension in a case without fully understanding all of the issues at play. Keeping third parties out of the discussion as much as possible encourages the people who are directly involved in the problem to deal with each other.
- Discourage revenge tactics – this is where the lawyer has to be the voice of reason. Often emotions give a desire for revenge. But revenge tactics will not be effective in the long run of the case and may increase the tension and certainly the cost.
- Take the high road – Maintain perspective on the ultimate goal of resolution of the case and don’t engage in tactics that do not further the goal of resolution.
- Do not engage in name-calling or making extreme statements – remember that these people have to interact and deal with each other long after the case is over so engaging in extreme behavior is seldom warranted or conducive to the goal of resolution.
- Avoid burdensome discovery requests – By utilizing unnecessary discovery requests, an attorney raises the cost of litigation and looses focus on resolution of the case.
- Do not take the client’s case personally – I frequently tell younger lawyers to remember the euphemism “not my case, not my monkeys”. We didn’t marry the opposing party or have babies with him/her. The lawyer goes home at night to his/her own family and problems. Don’t take the clients with you.
Hat tip to Lisa DuFour and Carol Bailey and their article Civility and Family Law – Not an Oxymoron in the August 2017 edition of Family Lawyer Magazine.
Part 2 of 4 in the series Civility in Law.