Why You Should Want Your Attorney to Play Nicely

Divorce clients, being unfamiliar with litigation, often arrive in my office convinced that the best attorney is the most aggressive, even the nastiest, lawyer they can find. In my experience this is rarely true.

Attorneys who play well together can help their clients resolve cases efficiently, by which I mean obtaining the best possible result at the lowest possible emotional and financial cost. Such attorneys can work together to help clients not get stuck in whatever emotion they’re feeling in the moment but, rather, help them to see the broader picture and address underlying needs. If the lawyers like and trust each other and communicate well, it’s so much easier to support the family in staying in the shallow end of the pool.

People sometimes worry that attorneys who share good rapport will somehow work together to run up legal fees or otherwise place their own interests ahead of those of the clients. I do not doubt that such things happen. However, in my almost 18 years of legal practice I’ve never seen it. Most attorneys take seriously their duty to place the client’s needs first. Problems arise, however, in differing understandings of what that means. In my view, highly adversarial attorneys are more likely than non-adversarial ones to run up costs in service to the needs of their own egos, most often their need to be seen as highly competent. However, they are rarely conscious of this. Non-adversarial attorneys who are skilled have had to spend years learning to see how and when their egos trip them up and have learned the importance of getting out of their own way. That doesn’t mean they do it perfectly all the time. But if the intention is there to be self-reflective and aware, one is far more likely to see when he or she is getting caught in his/her own need to be seen (by others but typically, even more, by oneself) as competent. Once one sees it, the jig is up and any decent human being (which, as stated above, believe it or not, most attorney are) is going to return the client’s needs to front and center.

Of course every case is different and so the skill set required of the attorney varies from one situation to another. No lawyer is perfectly suited to every case. But even when opposing counsel has a narrow view of what it means to be a good attorney and believes that advocacy is essentially obnoxious, it’s still usually best to be represented by an attorney with a broader, wiser approach who is open to creative problem solving.

Here’s why:

  1. Fighting fire with fire only results in ever-more destruction. The best antidote to fire is water. It’s important to have an attorney who is not afraid to stand up for you in court if that’s necessary. But even there the most successful attorneys typically take a measured approach. Judges are rarely impressed by attorneys who posture and make outlandish claims. In fact, such tactics can hurt the client’s credibility in the eyes of the court.
  2. Cases have twists an turns. Perhaps this moment requires a tough approach and a trip to court. As things unfold, an opportunity to work together toward settlement may open. If both attorneys have a fundamentally litigious approach, it’s far more likely such opportunity will be missed. Working together takes two. Therefore, it’s good if one of the attorneys is open to such an approach and just one of them needs to come around to the wisdom of such an approach.
  3. When it comes to tangible resources, there’s only so much to be divided. This is true for income, property and time with children. The more one spouse gets, the less the other receives. This is true regardless of approach. However, when attorneys throw hand grenades, it becomes ever-more difficult to reach lasting agreements that address everyone’s needs. It’s easy to get sucked into a battle that one never intended and that poisons the relationship between spouses. After that, they’re somehow supposed to raise their children together. Quite often, the bad feelings persist long after the decree of dissolution and the parenting plan have been entered.
  4. People often ask if divorce hurts children. My response is it’s never easy for kids, but most are resilient and will emerge largely unscathed if the parents divorce well, with mutual respect and compassion for each other, and if they work to tune in to the experience and needs of the children. Most important, the children must know that no one is divorcing them. They need to know that mom is still mom and dad is still dad, and that each parent wants them to have a close, loving relationship with the other parent. Of course there are occasions when a mom or a dad is toxic and, in those rare instances, it becomes most important to protect the child. Fortunately, such cases are rare. What’s not rare is for a parent’s view of the other to be colored by the experience of the divorce itself. For this reason, it can be really important to obtain broader perspectives from wise professionals (such as non-adversarial attorneys, child therapists, collaborative child specialists and coaches, etc.). Here too, attorneys working together to get to the truth of the matter can help clients arrive at the best possible outcomes. This may mean helping the spouses find the necessary emotional support and/or child-development knowledge to create a foundation from which they can place the needs of the children first.
  5. Since attorneys rarely work for free, you and your spouse wind up cutting your lawyers in on the finite pool of financial resources available to the family. Money that could better be devoted to a child’s college fund or to buying a new home or car or even a much needed post-dissolution vacation instead goes to the “zealous advocates.” Unless one spouse is acting in bad faith by harming a child, hiding assets, hiding income, running up debts, harassing or hurting the other spouse or in some similarly odious manner, this is not a good use of a family’s resources.
  6. Litigation is not fun. In fact, it’s extremely unpleasant. If you need to go there in order to protect your children or to protect an important interest of your own, that’s understandable. That’s what the court is there for. But to go before a judge for any other reason — such as (for example) to extract revenge, to prove something to the children, to achieve “justice,” or to avoid responsibility for the outcome — is, in my opinion, insane. I say this because, while you may make your spouse miserable, you and the children will be miserable too. In fact, your children may be permanently scarred. So the court should be viewed as analogous to the hospital emergency room — a place that’s painful, terrifying and expensive; and, if you need it, thank God it’s there.
  7. What are your memories worth? In an adversarial divorce, the well of positive memories is typically poisoned. So much so that people will often swear they never loved each other and never enjoyed each other’s company. Memory is not objective. In fact, memories get rewritten every time they are accessed. However, we’re not aware that we’re constantly rewriting them. Thus, it’s easy for them to shift and shift and shift, until everything that once was has turned to dust, not just in the present but also in our recollections of the past.
  8. What is your personal dignity worth? Adversarial divorce can have the feel of a public proctologic exam, as each spouse’s weaknesses are examined in detail in a public setting and in a permanent public record. Most often, both spouses will find friends and family taking sides. That means you’re likely to lose connection with people you’ve cared about and who have cared about you. It’s far easier to preserve relationships when both spouses are working together in good faith to find agreements and solutions that meet everyone’s needs.

This month’s Washington State Bar Association magazine, “NWLawyer,” ran an article that touches into some of the reasons you should want your attorney to play nicely. Titled, Motherhood Made Me a Different and Better Attorney, I found it paralleled my experiences as a collaborative attorney in learning, over time, what it means to represent clients wisely and effectively.

The author writes:

In July 2013, I lost my beloved five-and-a-half-year-old German shepherd mix to cancer. The week after I had to put him down, I had discovery responses due and client meetings, but I was an emotional mess. Instead of keeping this devastating loss private, I was honest with my clients about my loss when I had to cancel meetings, and with opposing counsel when I requested an extension. Opposing counsel was kind and empathetic; he also shared his own experience in recently losing a beloved family pet. My honesty with opposing counsel created a closer bond, and allowed us to communicate about our case more openly, which ultimately benefited my client when the case settled.

She also writes of how this new perspective benefits both her clients and the larger legal community:
While I understand litigation is naturally adversarial, and that we have a professional obligation to be zealous advocates, I do not believe that unnecessary posturing and aggression has ever benefited my clients. Having amicable and honest relationships with opposing counsel, on the other hand, not only better helps clients, but also improves the legal profession’s integrity. 
However lawyers gain this sort of perspective — whether by becoming a parent, learning to practice collaboratively, suffering a painful loss, deepening their spiritual practice, going through a nasty divorce, or in any other manner — it is, in my opinion, an essential insight if one intends to serve clients well.
Whatcom County is a small legal community and, thus, a great place to practice for those who want to do it with integrity. One’s reputation matters here. There is no anonymity. If an attorney is not professional, word gets out. Conversely, everyone knows who the hyper-aggressive attorneys are. Unfortunately, in our essentially violent culture, clients and their friends and family, not knowing any better, will often think it best to retain that sort of lawyer. Though there is a place for scorched earth litigation, in my opinion it’s rarely in the arena of family law. If one is suing Monsanto or some other huge corporation, I support going for the jugular. After all, red ink may be the only message that causes an amoral entity to alter its ways. But when dealing with the mother or father of your child, or — even without children — when dealing with someone you’ve loved and cared for, nastiness is rarely the wisest or most beneficial approach.