Friday, August 3, 2018

A Few Words on the Practice of Family Law

       The weekly newsletter of the American Academy ofMatrimonial Lawyers (AAML) contains a professionalism tip and here is this week’s offering:
Before you speak, let your words pass through three gates:"Is it true?" "Is it necessary?" "Is it kind?"
          This tip could well be the mantra of my practice style.  I learned early on in my legal career that someone has to hear what you say in court or read what you write in correspondence or a legal brief.  That someone will likely be a person with whom my client will have some sort of ongoing relationship.

          Over 20 years later, I still vividly remember my first trial.  I was only a year out of law school and second-chairing a custody trial.  My work was mostly behind the scenes and I learned valuable trial preparation skills, but the lasting lesson came in the courtroom.  All witnesses had testified and closing statements had been made as the noon hour approached.  The judge took an hour and a half recess and we came back expecting to address any lingering issues and be told the judge would be taking the matter under advisement (legalese for taking a few days to further consider the case and rule).  Instead, as we entered the courtroom the clerk asked if we wanted to order the video now – court reporters were mostly a thing of the past in Utah by the late 1990’s – because the judge would be ruling from the bench.

          The judge’s findings of fact were detailed and specific as he laid out the legal basis for why he was changing custody.  The lawyers had quickly figured out where the judge was going with his findings.  As soon as it dawned on our client he would prevail, he grabbed my hand and squeezed it hard.  While the crushing grip smarted, what pained me most were the sobs coming from the other parent as she, too, began to realize what was happening.  The court’s ruling served the best interests of the children and the facts as the judge bluntly recounted them were correct but I knew this was a blow for the other parent to hear.   I still wonder what impact those harsh words directed at one only parent had on the entire family.

       The lasting lesson for me has been to treat opponents with kindness and respect and, to borrow from my friends in the medical profession, to do no harm.  Words have the power to persuade but also the power to wound; they are to be used with care and caution.  The reality is that sometimes, as in my first trial, harsh or unflattering facts are relevant and need be brought up.   Before going down that road, I ask, "Is it true?" "Is it relevant?" "Is it helpful?"  You do not win cases by embarrassing your opponent.

     Prospective clients will sometimes ask my assistant or me if I am “aggressive.”   Our response is that I am effective.  I may be nice but I get the job done.  I have never been one for courtroom theatrics: it is not my style, it is ineffective, and judges hate it.  There are the attorneys out there who confuse putting on an insult-filled show with advocacy, but I am not one of them.  My clients hire me to help solve problems, not to make them worse; they see the value of going high when others go low.  If someone wants a “paid hater” or someone who views civility as a weakness, there are plenty of attorneys out there happy to take the job.  Just not me.  

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