Family law cases can easily be over-litigated – I refer to this as using an assault rifle on a gold fish in his bowl. This occurs because family law is probably the only area of the law where issues can be created. I do not mean they are false or made up; rather, I mean that there is so much personal perspective in family law, so many emotions, so many issues where the parties have totally different viewpoints of the same events, that a lawyer and/or the client can create a dispute over virtually anything, if they so choose. This cannot happen in personal injury for example, where the accident or event is what occurred and there is a proximately caused injury. In criminal law, a crime is charged based upon the acts of an accused individual. In family law, the “he said/she said” dynamic can virtually create two separate sets of “facts” to argue over.
Two Types of Lawyers
As a result, I find that there are two broad categories of lawyers handling the litigation of family law. There are those lawyers who encourage clients to argue about every issue without regard to a cost/benefit analysis. Such lawyers fuel the emotions of the client, which leads to intense litigation. The other category consists of lawyers who guide the client to understand the issues, the likelihood of success and the cost involved in pursuing that success. This latter type of lawyer takes a businesslike approach to the case rather than an emotional perspective.
The Scorched Earth Approach
Some clients feel the need to work out their anger on their soon–to-be former spouse or the other parent of their child through expensive litigation. No matter how hard a lawyer might work to discourage such tactics, these clients will not be swayed. This is no doubt the client’s choice and there are plenty of competent lawyers out there to help those people in their quest. It is my experience, however, that clients who want the immediate emotional satisfaction of taking a scorched earth approach ultimately are dissatisfied with having done so. When it is all said and done they are left with years of anger and plenty of money spent on the litigation, but without the kind of vindication they had hoped for.
The Business Approach
The other way to handle litigation is to work with a lawyer who views it from a business perspective – carefully advising and guiding the client through arguably the most difficult experience of their life to get them to the other side with their emotional and mental health intact, and without their finances being decimated. A colleague of mine pondered with me, are we really being advocates for our clients by handling their matters in this regard? My answer was a resounding “Yes!” Webster’s Dictionary defines an advocate as “a person who speaks or writes in support of a cause, person, etc.” Any lawyer who helps a client to get through a divorce or custody dispute without losing their mind or all of the financial security is a supportive advocate in the truest sense of the word.
I believe litigation is appropriate in many situations; however, I believe that lawyers should do it using the care and precision of a surgeon, and not by using a gangster’s assault rifle on the poor little goldfish of an issue – which blows away the fish, the bowl and a good part of the room.