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
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
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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