October 15, 2014
Many law school graduates are opting to hang up their own shingle and practice in a solo or small firm. And one of the more common areas in which these lawyers choose to practice is family law. Heck, it’s the primary practice that I chose when beginning my solo career.
There are a variety of reasons for this, but the predominant ones are the relatively high demand for attorneys in the field and the perceived low level of technical expertise required to practice in it.
I say “perceived” because there is actually quite a bit of expertise needed to successfully practice family law; however, it’s not an encyclopedic knowledge of the relevant law or associate procedures (although that certainly helps). Instead, it’s a practical skill set that requires that attorneys approach family law in a fundamentally different manner than most other areas of law.
Attorneys who are not aware of these required attitudes and skills very often find themselves losing in court, finding that the same tactics and goals they so successfully employ in other areas of law only work to their detriment in family law (this is assuming there are children involved, as there are in the vast majority of family law cases).
What are these “attitudes and skills?” To sum it up very generally, whereas in other areas of law, you play to win – that is, to score a decisive victory for your client at the cost of the opposing party – in family law, you “win” by trying to make everyone happy.
Now, I’m not so naïve as to believe that this is possible in the majority of family law cases; quite often, disputes reach resolutions with which neither side is particularly happy.
But your goal should be to reach some outcome that works best for the family (or what’s left of the family after the dispute). Yes, you represent your own client’s interests first and foremost, but the rub is that you can’t appear to be solely concerned with your own client’s interests to the decision-maker; you need to appear to be basing your client’s arguments and goals on what’s best for the new family – and specifically the children.
For some clients, that isn’t too difficult: they are already thinking about what’s best for the kids when they approached you to begin with. But there are some clients whose interests are a bit less noble, and for them, you need to have that discussion with them about how nearly everything in family law is determined by what’s in the best interests of the children.
How does this translate in actual practice?
First and foremost, your arguments shouldn’t be based on ensuring that your client’s interests are being protected or preserved; they should all be tailored around how your client’s goals serve the best interests of the children. And your arguments against the opposing party need to do the same.
But family law’s differences from other areas of law go beyond simply the arguments you put on paper or raise in court. They also include a very significant attitude shift required of the attorney herself. Specifically, you should be approaching every case with the mindset of, “How can we resolve this so that both parties are happy?”
Practically, this should mean that you make actual efforts at resolving the case with the opposing party prior to any court action (as many jurisdictions already require). Most judges hate to make decisions in family law matters, and love nothing more than when the parties reach their own resolution.
Yes, this is generally true of all areas of law, but in family law, most judges place the blame for the failure to resolve the dispute on the parties to a far greater degree than in any other area of law. If you believe that your client is being particularly unreasonable in settlement discussions, be aware that the judge will somehow figure that out when talks break down and the parties need the court to step in to resolve the dispute. And your client stands a good chance of being punished by the judge for this unreasonableness.
Beyond the courtroom, however, you should be counseling your client to not be actively trying to make things more difficult for the other party. True, this certainly injures your client’s standing in the courtroom, but it also makes reaching an agreement much more difficult in mediation. In fact, I’ve had great success by counseling my clients to, instead of being difficult, show the other party acts of kindness and flexibility.
Not only does this enrich relations and consequently improve the chances of reaching a settlement outside of court, but, in case the dispute does progress to court, it also can demonstrate to the judge that your client is making conciliatory efforts – and that, implicitly, you aren’t in court today because your client is the one who caused settlement efforts to break down.
Thus, it’s important to bring your client onboard with this “mutually beneficial arrangement” mindset – since being as adversarial as you’d be in any other area of law only serves as a disadvantage in family law.