To many readers this question may seem bizarre. But it comes up a fair amount in the context of representing a client. It usually arises after a four way meeting or judicial settlement conference where both parties and both counsel are, literally, in the room and discussing the facts or their respective legal positions.
It is natural to want to be liked by strangers we meet. That aspiration does not simply disappear when a couple decides to split. But the range of emotions affecting the couple who are doing the splitting can be pretty amazing and highly inconsistent. As we noted recently, there are many instances where we can resolve really big issues only to find that discussions over personal property or whether “Fido” should have the same custody schedule as the children can cause the wheels to fall of the car called “Resolution.”
Clients sometimes think that the function of lawyers in these meetings is to be fair or impartial. The trouble with that is the judicial system is inherently adversary. Some lawyers take great pride in advocating for their clients, sometimes in ways that can seem irrational. Other lawyers pride themselves on keeping matters out of court and advocating compromise. But, at the end of the day, the rules regulating us make clear that our first loyalty is to the client and not “justice.” There are many other rules that bar us from participating in fraud or being deceptive to the courts which apply equally to how we work with clients.
Understand as well that there is a component of “acting” that goes with representing a client. The client typically wants us to act in ways that promote their interests rather than some neutral concept of justice. If you want neutrality, that’s what judges are there for, although we live in a day when there are heavy pushes to avoid litigation and just resolve things.
So, if your opposing counsel growls at you or dismisses your observations as ridiculous; take heart. Chances are he or she did hear and did understand what you meant. In the divorce world that lawyer may have taken the same position yesterday that he so vigorously denigrates your uttering today. It was just in another case. Just about all of us represent both men and women and rich and poor. We have all sat in meetings where parties or counsel bark that “You’ll never get 50/50 custody” or “You don’t deserve more than half the assets.” In a lot of those meetings we know that shared custody is in the cards or that an even split is remote at best. But, it’s not good business to tell your client he/she is being ridiculous or overreaching.
If you sit in a meeting and see your own lawyer start acting in uncivil ways or talking down to your spouse or the other lawyer, ask for a break to chat alone. When you are alone, don’t hesitate to say to your that your uncomfortable with the stridence in language or form. Many times, a lawyer will get out ahead of the client trying to do the job of advocate. But in the end, this is your divorce or custody dispute, and the lawyer is there to serve your interests. If you find yourself being harassed or intimidated by the conduct of your spouse’s attorney, don’t rachet matters up. Just say: “Things seem to be more heated in our discussions than they should be, yes?” That tends to take some air out of the soaring rage your spouse or the other lawyer is fomenting. Courts in the United States divorce nearly 700,000 couples a year. Some can be done civilly if the parties and counsel work on it.