My Thoughts On Opposing Counsel

Friends and family always stare incredulously when I tell them I practice family law.

"But isn't it hard dealing with clients in that emotional state?" I tell them that clients aren't difficult; opposing counsel is difficult.

Lawyers have an ethical duty to zealously represent the interests of their clients. Every lawyer has his or her own definition of "zealously represent." For some, that means asking a client what they want and doing whatever it takes to make that happen. For me, especially when children are involved, that means looking to the long-term impacts and advising my clients to seek happiness and peace years down the road. For many, that means barely speaking with the client and pursuing an agenda of maximum benefit to the client and maximum harm to the other side.

That last group makes life hard.

When no kids are involved, divorce is simply a business transaction. Emotions stir and privacy vanishes, but at its heart the divorce is just a business transaction - the most important business transaction of my client's life. Sometimes, especially when family violence occurred, this transaction is punitive. Usually the transaction is cooperative. I try to end a troubled marriage with the goal of establishing independence for the parties. I avoid blaming and the stirred up fights that come from that. Like most business transactions, a divorce can focus on the maximum benefit of each party. That is how business gets done and that is how I like to handle things.

When the divorcing couple has children, the road appears even more clear. The long-term happiness of the children becomes the goal. If both parents line up with that goal, they make the obvious choices.

But opposing counsel may not find the choices so obvious. For those lawyers looking to maximize their client's benefit while bringing the most harm to the other side, representation is nothing like a business transaction. It's more like business litigation. Someone will win and someone will lose. A lawyer who sees the world this way must win. That is the lawyer's job. And these lawyers pull out all the stops to make sure they win.

These lawyers know the tricks. They know how to delay, how to create burdensome requirements, how to drive up legal costs and to bleed the other side. Law schools don't teach these tactics, they are learned through experience.

Although I understand why lawyers do this, I have a devil of a time explaining to clients why they do. Every delay, every additional hearing, every failed mediation, and every politely aggressive email costs my client more money. My client just wants to be done. My client wants independence and care for children and happiness.

I ask my clients in their first interview where they see themselves in five years, and I work toward that. My clients rarely answer that they want to still struggle with legal fees paid years before and an angry ex who still sees it all as a battle. My clients don't understand the aggressive opposition because I don't take clients who want to bury the other side. The law doesn't allow you to suck the other side dry, and acting like it does only creates conflicts you can't win but that will burn you up inside. If you look at the long game, you would never focus on that.

But opposing counsel often does. Maybe they thrive in high-conflict situations. Maybe their hourly billing structure encourages them to accept conflict in order to protect the bottom line. Maybe their client enjoys conflict and they don't see it as their job to educate the client away from that. I have no doubt these lawyers have perfectly human and reasonable explanations for the way they behave, I just have not found a way to make my clients understand them.

I practice family law because I think it serves an important function. We lawyers don't create the deeply emotional and important issues that a family faces, but we do help facilitate an orderly and mindful transition. We get the most good out of a bad situation. And yet we are some of the most despised lawyers practicing.

Why? We probably deserve it. We probably create more fights as a group than we resolve. We probably encourage conflict where we should quiet it. Again, I believe much of that is a function of the antiquated hourly billing structure, but I also believe that family law practice needs to be seen by lawyers as a practice apart - a different world with different goals.

I have my own way to represent family law clients that I believe is consistent with my duty as a lawyer. Other lawyers would disagree, and those lawyers will continue to represent their clients as they deem appropriate. And often that means playing games with me and my client that I would rather not play. But I will learn the tricks and my clients will have to pay for the game. I believe we need another model for fighting these fights.

Maybe lawyers steering the family law boat can only lead to rocky shores, but until we come up with another system for resolving these disputes, I will simply try not to make every case the Titanic.