A Comparison Between Actual War and Family Law Litigation

It has long been said that the tongue is sharper than any sword. In fact, the Bible says, “Reckless words pierce like a sword, but the tongue of the wise brings healing.” (Bible, Proverbs 12:18 (NIV)) Of course, in litigation, we place such words into correspondence, declarations and pleadings in an effort to coerce a “settlement” or otherwise persuade a judge. As they say, “the pen is mightier than the sword.” This may be why litigation is often compared to war wherein the lawyers are the warriors. Since they are retained to “win” the war, they operate on a “take no prisoners” philosophy. Clients frequently manufacture or otherwise embellish facts. The attorney does anything in their power to assist their client in prevailing, including efforts to legally exclude evidence that would otherwise weaken or destroy their client’s case. After all, who cares whether the result makes sense based upon all the facts, as long as our client prevails. It should be noted that in actual war, the warriors themselves may or may not support the underlying basis for the war itself and are not the ones making the policy decisions. However, a “take no prisoners” philosophy in war applies to the actual warriors. In litigation, that philosophy actually applies to the “policy holders,” the parties themselves. Yet, we expect those same parties to effectively co-parent throughout the litigation and thereafter.

 

Preventing future violence following military intervention is always a concern because violence begets violence. The potential for future violence exists because the underlying conflict was never actually resolved. The ultimate goal is to somehow break the cycle of violence. What, if anything, is done in family law matters to break the cycle of conflict? As with military actions, handling the conflict through coercion does not resolve the underlying conflict. When families are involved, doesn’t it make more sense to try and minimize the conflict than attempt to break the cycle of conflict that was exacerbated by litigation? Remember, after figuratively “killing” the other party, they are expected to play nice. Does anyone really believe that if a warrior were literally killed as a result of a “take no prisoners” philosophy somehow returned from the dead, they would let bygones be bygones?

People don’t get along well after having litigated against each other. Nonetheless, we subject parents to the litigation process and somehow expect that they will react differently because they happen to have children together. Does that really make sense? Can we really expect that families won’t be permanently damaged by litigation? Remember, everything is a matter of perspective. We expect post divorce families to look a certain way because they are post-divorce families. However, if the only post-divorce families we see are those that litigated their divorces, might our perception be skewed?

As an aside, it should be noted that relationships are formed between children and step-parents. A number of years ago, I received an email from someone advising me that I was only “touching the tip of the iceberg” in an article I had written. She explained that she had recently divorced her husband of 27 years. They each entered into the marriage with a daughter from prior relationships. In the two years since the divorce, her “grown daughter had never gotten over losing a ‘father’ and a ‘sister’ as a result.” She said, “I never thought in a million years that my daughter would be so touched by my divorce.” She ended her email as follows: “Write more about this Mark, and do what you can because it is more than just the small children who are affected. My adult daughter can’t get past it and will not talk about it with anyone. She just wants her family back. I had to thank you for your compassion on this issue, one that most people never consider.”

By the same token, we should be cognizant of the fact that parents with adult children still have children together. Absent unusual circumstances, children outlive their parents. Therefore, parents are in essence bound together for life by their children. We must not ignore this reality just because the court does not have jurisdiction over such issues. Things that parents do to each other during a divorce either on their own or with the assistance of their attorneys have consequences. We must be mindful of this because material possessions come and go, but family is forever. While some families are functional and others are dysfunctional, they are still families.

14 comments

  1. I have advocated for Collaborative Law for some 12 years in the Louisville, Kentucky area and you are preaching to the choir. Even so, I believe Sherie Sloven of Cincinatti ( past IACP President ) has convinced our core group the starting place must be the practicing lawyers who deliver successful resolutions. there will be no tipping point till there are enough successful cases to have word of mouth create the consumer’s demand for Collaborative Law. John MacElwee ( a great initial trainer ) responded when I asked ” How is it fair to me after 40 years of honing my craft as a trial lawyer to ask me to give up my hard work? ” ” because you are the kind of warrior that brings creditability to the process. ” I said “How can I get a party to agree to the process?” He said ” Ask your client” if they think their spouse is smart enough to get even if we really do destroy them on a given day?” In twelve years nobody liked their own answer.

  2. Deb Beacham says:

    Mark, this is a fantastic highlight on some things we need to change in how cases are managed. We do need to get away from the “win the war at all cost” approach. So, thank you.

    What we are focusing on at My Advocate Center relates to the worsened cycles of dysfunction (violence, addiction, depression/anxiety, fighting) stemming from the lack of focus by certain professionals… meaning a focus on what is really needed for children/families to survive the process.

    You are correct in identifying this as “war” and more of us need to recognize the trauma and loss coming from treating it as only that. It should not be “popular” or sensational to “win” in this regard.

    As professionals who must not only uphold laws but also fiduciary duty – and including the burden of meeting the “best interests of the child” standard – you are carrying the day for us, but too many are missing that by a wide margin. So we are extra thankful for those of you who DO get it, and manage and guide accordingly.

    We will post more on the trauma that occurs and the effects on My Advocate Center & in our LinkedIn discussions soon. Leaders in healthcare, education, civic organizations as well as in the health insurance industry are joining in and your voice & insight are revealing you as one other leaders should engage in a bigger way.

    * In response to Mr. Hodge’s comment, we would like to see this conversation evolve further and believe there is a lot of value in collaborative law practices. That is the right idea and it is underutilized. Are there groups looking at ways to foster teamwork between collaborative and trial attorneys, meaning can you create a clear path to trial should it become necessary due to one party using foul play, for example, or refusing to cooperate simply out of vengeance or a need to control/punish?

    Unfortunately so many divorces and custody matters do involve a “war” or “seek and destroy” mentality, so the collaborative process cannot work, at least not easily or without some arm twisting, but that doesn’t mean there isn’t a better way to resolution and peace on these cases. Our M-A-C Counsel for Change group will continue this thread.

    Mr. Hodges, your point to the “credible” trial warrior is right on the money. We need talented trial lawyers to remain in the court room winning where it is called for and needed. Parents who need that skill set do not want those attorneys to water down their work trying to do something they were not trained for – and we do not want the square peg getting forced into the round hole.

    **Be successful where you are called to serve. We would like to see different types of professionals find a way to work together to help families transition through and out of conflict in the best possible way. Please continue the collaborative law advocacy work – we need it!

    Again, thanks for the good work and the open discussion.

  3. K.C. Victor says:

    Thank you for this conversation. The “winner takes all” bottom line attitude many lawyers have regarding litigation in this country is troubling. Most cases have two arguable sides.

    For the purposes of this discussion, almost all divorces between people who once wanted to be married have two sides. A scorched earth policy needs even more resistance when children are involved.

    Several years ago I wrote an article about managing clients’ expectations. Although I did not use family law examples, divorces with children may be the paradigm instance where a lawyer’s duty is to try to dissuade the client who wants scorched earth from going there. My more generic article can be found at http://victorls.com/wp-content/uploads/2011/09/2008-05-21-LADJ_For-Attorneys-There-Is-No-Such-Thing-As-a-Self-Evident-Truth.pdf.

  4. So long as judges have power given to them under the guise of serving the “best interests of the child,” a standard that is NOT Constitutional, then we will have injustice and outcomes that benefit judges, attorneys, GALs and others and harm children, their parents, and society.

    The court should be allowed only to pick the parenting plan of one parent or the other so long as BOTH parenting plans proposed do no harm to the child. If only one parenting plan does no harm to the child, that plan is picked without any change by the judge. In such a legal scenario, by taking the judge out of the unfettered control over children and their parents, PARENTS will fight less, because irrational or not, the consequence of fighting is to have the other parent’s parenting plan selected. What we have now are battles between parents that benefit only judges, attorneys and others and that hurt the parents and their children without any corresponding benefit to the children. I am NOT suggesting we can ever get parents to get along or agree. What I am stating is that by no longer allowing judges to have such authority as might, if honest and ethical, get to what is “best for a child,” we tell parents, STOP FIGHTING as you cannot win through fighting and that judge isn’t going to pick a winning parent, only a winning parenting plan that does no harm to the child (which is ALL the government, through judges, should be allowed to do under our Constitution). Parents will not agree. Fine. But then the consequence is the judge picks one plan or the other, with no revisions or additions. By taking the judge out (mostly), there is no longer incentive to lie or cheat as much as the current laws encourage and enable.

    I have model legislation for Georgia that would bring custody laws into Constitutional compliance (as the best interests of the child standard is not Constitutional) and would be pleased to have it enacted in all 50 states.

  5. I am so pleased to see the wonderful response this article has been receiving. I also want to thank you all for your very kind remarks.

    For those familiar with my writings, this is by far my shortest article. It was actually a section of a chapter I submitted to Thomson Reuters Westlaw for inclusion in a new Aspatore Inside the Minds book titled “Strategies for Family Law in California” that will be released this summer. When I was approached to submit the chapter, I was advised that my name had been “recommended as a thought leader in this practice area.” Therefore, it seems that leaders are hearing my voice and insight, as Deb had mentioned.

    In any event, after the chapter was edited by Thomson Reuters Westlaw, this section was removed because the audience for the book will be practicing attorneys. While this section was relatively short, it actually took me a great deal of time to write. Therefore, I decided to turn it into this independent article.

    By the way, K.C., I read your wonderful article. Thank you for sharing it with us.

  6. Hello Mark,
    I have been following your very impressive professional opinions about navigating through the very difficult waters of divorce. I am most impressed with your compassion for the “parties” (mostly parents with children) as they navigate through the complicated battle between attorneys who, of course, want to “win” for their clients.

    As a psychologist (and Florida Supreme Court Family Mediator – in supervision), it is refreshing to see an attorney who is actually addressing the “human side” of the devastation of divorce.

    However, I have seen little written about situations where there are two professional people involved in divorce and one (the plaintiff – who is also an atty by trade) is out for blood and presses bogus charges of Domestic Violence to destroy the others character and professional career. Even though the charges are dismissed, it leaves a lasting impression on the person trying to defend themselves.

    The other professional (Post grad but NOT an atty) even with good counsel is still at a disadvantage, especially when the atty has the money and his/her spouse is at a financial disadvantage. The divorce is usually skewed and as you stated, the final decree can have lasting effects on the “respondent.”

    As a psychologist, it is heart-wrenching to watch my patients go through this nightmare, especially when perjury can be proven but ignored by the atty stating “Well, it’s only Family Court. Anything goes.”

    For those of us professionals dealing with the aftermath of arrogant attys who “win” their cases at great expense to the person who is financially challenged (and thus cannot fight their plaintiff spouse with matching funds), it is very difficult to assist our patients as they navigate through such an unfair disadvantage. After all, the final decree has lasting effects and some never get back to ground zero, let alone move forward in life, emotionally or financially.

    As an attorney with your crusade to educate others about the “emotional waters” in divorce, I would like to hear your comments about assisting/encouraging patients faced with this situation when no children are involved.

  7. Thank you so much, Karen. I actually wrote several articles that I believe are on point. They are as follows:

    1. False Allegations of Domestic Violence: http://www.markbaeresq.com/Pasadena-Family-Law-Blog/2010/May/False-Allegations-of-Domestic-Violence.aspx

    2. Does Anyone Tell the Truth Any Longer?: http://www.markbaeresq.com/Pasadena-Family-Law-Blog/2010/June/Does-Anyone-Tell-the-Truth-Any-Longer-.aspx

    3. Family Law and Attorneys Fees: http://www.markbaeresq.com/Pasadena-Family-Law-Blog/2010/September/Family-Law-and-Attorneys-Fees.aspx

    4. Philosophy and the Law: http://www.markbaeresq.com/Pasadena-Family-Law-Blog/2011/February/Philosophy-and-the-Law.aspx

    Please note that I practice in California and family law differs from state to state.

  8. Hats off to this article, I’m really impressed. The comments are great too. I wish collaborative divorce was much more common since it is usually to the advantage all parties involved. Thank you.

  9. Jack thomas says:

    I just came onto your post and found it quite interesting. LA Divorce Attorney, Los Angeles Divorce attorneys, family law attorney Pasadena, and love to enjoy the stuff on the same as its rarely found on internet. Thanks again for writing such a good post.

  10. Thank you so much, Jack.

  11. joy borum says:

    To say nothing, Mark, about this all arising from those who could afford it hiring knights to go to the tournament and fight the employer’s battles for them. Have a lovely weekend all.

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